Unmarried Couples and Rights on Separation

With an increase in cohabiting relationships in the UK its best to go into a relationship with a rough idea of your legal rights as one half of a cohabiting couple.

Family lawyers say unmarried partners assume they have the same legal rights as a husband or wife and that they’ll get half of everything. It can come as a surprise to hear what your rights are after you’ve been in a long term unmarried partnership so in this article, we look at the rights of unmarried couples on separation.

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For specialist family law advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form .

Understanding your legal rights as an unmarried partner

Family law solicitors will need to ask you some questions to advise you on your legal rights as one half of a cohabiting couple. That’s because without information they can't give you the best specialist advice you need. Questions will include:

• Are you engaged to be married? If so, did you sign a prenuptial agreement in anticipation of your marriage?
• Did you sign a cohabitation agreement either at the beginning of your relationship or during your relationship?
• If you own property together, did you sign a declaration of trust when you jointly bought the property?
• If a property is owned by your partner, have you done work to the property or helped pay the mortgage or renovation costs?
• Are you in business together or are you an employee of your partner’s business?
• Are you in the UK on a family visa? Is your UK immigration status dependant on your unmarried relationship?
• Do you have children? If so, are they under 18 or still dependant on you?

There may be other questions our family law solicitors will need to ask but those give you an idea. If you don’t know all the answers to those questions then don’t worry and don’t delay in getting legal advice. If necessary, our family solicitors can find out some of the information for you, such as checking how you own joint property by getting information from the land registry.

Cohabitation agreements and splitting up

If you signed a cohabitation agreement then the cohabitation agreement will determine what you will each get unless the agreement only covers specific assets, such as ownership of the family home. If you signed a comprehensive cohabitation agreement then the only time that you may be able to bring an extra claim is where you have dependent children and the agreement doesn’t provide adequate housing for them or child support. In those circumstances, you may be able to make what is referred to as a schedule one Children Act claim for housing and also bring a claim for child support.

Signing a cohabitation agreement, after taking cohabitation law advice, is a good idea because it limits disputes if you later separate and it reduces the risk of court proceedings. If you didn’t contemplate having children in your agreement and you later have a child then it’s a good idea to review the cohabitation agreement and, if appropriate, change it.

The family home and cohabiting couples  

When you are in an unmarried relationship your rights to the family home are based on a combination of property and trust law rather than divorce law. That’s why its important to get legal advice so you understand your rights.

If your partner owns the family home in their sole name then you can only bring a claim for a share in the equity in the property if you can establish that you have an equitable or beneficial interest in the property. You may have been in an unmarried relationship for 20 years and have no claim or you may have been in a cohabiting relationship for two years and be able to prove that there is a constructive trust.

If you and your partner own the family home jointly then the amount of your share in the equity will depend on whether you own the property as joint tenants or tenants in common and your agreement about ownership at the time you bought the house.

If you have dependent children then you can claim housing provision for the children under schedule one of the Children Act but the Act doesn’t give you a share in the house or even a right to be housed for life – it is limited housing provision until the children are 18 or 21 and then the house reverts to your ex-partner.

If your partner has been abusive to you then, whether or not they own the family home in their name, you may be able to apply to court for a non-molestation order to protect you and an occupation order so you can stay in the property on a temporary basis. An occupation order doesn’t give you any property rights but means you can stay at the property short term. The definition of domestic abuse is very wide so if your ex-partner was coercive and controlling or you are fearful of their reaction to your planned separation, get in touch for injunction advice.

The family business and cohabiting couples

When you are unmarried your rights to the family business depend on company and partnership law rather than divorce law. If you are an employee of a family business then you will have employment law rights as an employee. You should not leave your job without legal advice. You also shouldn’t agree to sell your share of the family business until you have got some legal advice on your rights, the value of the business has been properly established, and there is an agreement over indemnities and other technical stuff.

Pensions and unmarried couples

You may have planned for your later life on the basis that your partner has a good pension and you will be together to enjoy it. If you split up from your unmarried partner you have no pension rights. That’s the case whether you have been cohabiting for 30 years or three. The law is different if you are married as you can ask the family court in divorce financial settlement proceedings to make a pension sharing order so you get a share of your husband or wife's pension.

You may think that you will still be OK in retirement because you can ask the court to give you maintenance as you don’t have your own pension. However, if you are unmarried, you can't apply to court for a spousal maintenance order.

 Financial claims for children if you are in an unmarried relationship

The law on child support is the same, whether you are a married or an unmarried parent. If you are the primary carer of  your child, you can claim child support from the other parent. If you can't agree on the amount, you can ask the Child Maintenance Service to calculate the child support using their set formula that bases child support on the paying parent’s income rather than your needs.

If your ex-partner refuses to pay child support you can also ask the Child Maintenance Service to collect and enforce a child support award.

Family solicitors recommend that you try to agree child support on a voluntary basis but that you don’t agree a figure until you know the amount that the Child Maintenance Service would be likely to award you.

In addition to child support claims, you may also be entitled to make a housing provision claim under the Children Act 1989 as well as claims for top up maintenance ( if your ex-partner is a high earner and the Child Maintenance Service has made a maximum award) and for payment of private school fees or to meet specific costs for your child ( for example, if your child has additional expenses and needs because of a disability).

Questions

Do you have questions? Do you realise that you need a cohabitation agreement or that you need advice on your rights on the family home? Our cohabitation law specialist solicitors can help.

Online and London Family Law Solicitors

For family law advice call OTS Solicitors on 0203 959 9123 or complete our online enquiry form .