What rights do unmarried or soon-to-be married couples have and how can they protect them?

read time: 6 mins

Unmarried couples do not have the same rights as married couples to protect them upon separation. Groups like Resolution are campaigning for change to give cohabiting couples the same rights as married spouses, but the law isn’t quite there yet. 

Even for those that do choose to marry, it can be a big decision to make without any certainty as to what will happen if it all goes wrong. That’s where cohabitation and/or pre-nuptial agreements come in.

You may have received a grand gesture from your significant other on Valentine’s Day or another special occasion. Perhaps they have recently asked you to move in with them or popped the big question. It is easy to become swept up in the romance of these exciting milestones and rightly so, but here are a few things you may wish to think about before making those next steps in your relationship.

What rights do I have if I ‘cohabit’ with my partner?

Cohabitation is when a couple who are not married or in a civil partnership live together. Unfortunately, the myth of the ‘common law marriage’ is still very much alive. Many cohabiting couples believe that they have much the same rights as a married couple. In fact, they do not have many default rights relating to finances, property or children at all. 

Other than some minor rules about property rights when you are engaged, until you actually tie the knot, the protections of family law will not apply if you separate. For some couples this is actually desirable, and forms part of the reason they choose not to marry. But why not have both? A carefully drafted pre-nuptial agreement can allow couples to marry and protect some of their assets provided certain conditions are complied with. 

If we have children but aren’t married or in a civil partnership, what are the risks?  

For fathers, if you are not married to your child’s mother at their time of birth, you will only have parental responsibility if you are named on the birth certificate. If you are not, the other parent could make unilateral decisions about your child without having to consult you. This can include relocating them, choosing where they go to school, the name they are known by, decisions about their health and many other lifestyle choices. However, as the child’s biological parent, you will still have a legal obligation to pay child support, even if you do not have parental responsibility. 

For same-sex partners, if you are legally married or civil partners (at the time of treatment for biological children in a registered centre) then both of you will have parental responsibility of your child. If not, then only the biological parent has parental responsibility. 

To obtain parental responsibility without being married or on your child’s birth certificate, you must either enter a parental agreement with the other parent, or obtain a declaration of parentage from the court.

Family law makes very little distinction between biological and adoptive children. If you are unmarried at the time of adoption and only your partner is named on the adoption papers, you do not have parental responsibility. 

What happens if we separate?

When cohabiting couples separate, they must rely on a variety of legal principles to settle their issues. 

If property is owned, the principles of land law apply. Depending on how you own the property, as joint tenants or tenants in common, each of you may only be entitled to the share you hold in your name. If the property is held in just your partner’s name, you will have no automatic right to a share in the property or even to continue living in it, unless you can show that you made significant financial contributions and this can be quite difficult to do. 

Other assets like businesses or partnerships will be divided according to the legal ownership. There are lots of unmarried couples who make decisions around their business with unintended consequences, for example putting shares in the name of a partner even if they are not involved in the business.

When unmarried couples separate, there is no obligation to maintain the status quo pending division of finances – because there is no legal requirement to share assets that are not jointly owned. You each walk away with what you have in your name. For those who have lived their lives as if they were married, by merging their finances for example, but did not actually marry, this can present a significant disadvantage to one partner. 

When cohabiting couples split, other than child maintenance if there are children, there is no obligation for one to pay the other maintenance, to share their pensions or any other assets. This can result in situations where one partner has made significant contributions to the family home in order to allow the other to further their career, and in doing so neglecting their own. On separation that partner may find that due to their lack of experience and the length of their career break, finding employment can be difficult. Without the protection of spousal maintenance or future pension sharing, this partner could fall into financial difficulty.

There are claims that can be made by a parent on behalf of a child, to enable a home to be provided or lump sums for certain things, but this is much more limited than the rights when a married couple divorce.  

How can I protect my rights if I am cohabiting?

Put simply, by writing them into an agreement between you and your partner. Contracts may not be the most romantic thing in the world, but they could save you some awkward and potentially heated conversations down the line if things don’t go as planned.

Whether you are a cohabiting couple with no current intentions of marrying or engaged and looking to protect your individual assets, a well drafted agreement with your partner can put your mind at ease. It can also help keep the relationship healthy by encouraging transparent discussions about the finances.  

Cohabitation agreements can be entered into before or after you move in with your partner. They are a great way to set out each of your rights and obligations relating to your home, finances and other assets such as cars, valuable possessions and any other properties you might hold together. You can use the agreement to set out how these assets will be shared between you if you do decide to separate. 

The agreement can even include your intention to share other assets or living arrangements or who is going to pay which bills. Of course, it is hoped that you wouldn’t need to rely on your agreement but having one is a sensible protection for those ‘just in case’ moments. Discussing the terms of such an agreement before making big decisions like moving in together can also ensure you are on the same page about these important issues.

Similarly, pre-nuptial agreements can provide you both with some reassurance about your intentions provided that certain conditions are met. Legally merging your life and assets with another person is a big step and there may be some non-negotiables you want to make clear before you embark on that journey. 

A pre-nuptial agreement can set out how your individual and joint assets will be divided if you later decide to divorce. Some of the things you may wish to protect are gifts from family members, inheritance, your own savings that may build up during the marriage, pensions or even specific items of personal value to you. There are also a number of other protective measures you can consider. 

If you think you might benefit from such an agreement or a general discussion around protecting your assets, get in touch with the Ashfords' family team for more information.

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