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What are your rights on separation? – Unmarried couples

Published on 25 April 2018 | Modified on 15 December 2022

Written by Stacey Bennett

It is increasingly common for couples to cohabit together and choose not to get married. It may come as a surprise that cohabitees do not have the same rights as married couples. Generally speaking, you will have fewer rights if you’re living together than if you’re married. This is especially the case on separation if the couple split up.

There is a common misconception that the longer you live together, the more rights you have. The idea is often referred to as a ‘Common Law Marriage’. This is not something that is recognised within the Courts of England and Wales though.

Whilst marriage may not be on the cards, the longer the parties are in a relationship, the more likely the finances of both will become intertwined. If the parties subsequently separate, whilst it may not be open for the parties to divorce/separate officially, the finances will no doubt need to be distributed so as to allow the separating couple to move on with their lives.

Is there a starting point for how the finances should to be split on separation?

There is a presumption with married couples that the finances should be split equally (50:50 presumption). The same does not apply to unmarried couples though.

The starting point for unmarried couples is that each party should retain the assets owned in their sole name. This can cause difficulties when one party has made a financial input and the other has assisted by other means. For example, one party purchases a property in their sole name and is the ‘bread winner’ for the couple, to enable the other party to stay at home and look after the property/children. In these circumstances, the non-owning party can claim that they are entitled to a share of the asset if they contributed to the purchase price, or added substantial value to the property. This will be very much dependant on the facts of the case though. The Court will inevitably make the final determination as to whether the non-owning party is entitled to a share. This therefore leaves a great deal of uncertainty for separating cohabitees.

What about financial provision for the children?

If children are involved, the non-resident parent will have a duty to provide financial support upon separation irrespective of whether the parties were married.

Is there anything that can be done to record an agreement?

It is possible to enter into a Cohabitation Agreement with your partner. This to regulate your affairs whilst you are together and even to make arrangements for any separation. The Agreements can be entered into amicably but both parties will need the guidance of independent legal advice.

There are also other ways to enter into legally enforceable agreements on specific matters, for example, how a jointly owned house is shared. This can be dealt with when you purchase the property by entering into a Declaration of Trust which can record several things, including but not limited to, how the sale proceeds should be split on the sale of the property.

If you’re cohabiting and would like some specific advice please contact our leading family lawyers. We have Family Solicitors at all of our offices across the UK. You can arrange an appointment by completing this form. Alternatively, see our Divorce and Family services.

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