Unmarried couples’ rights when splitting up

According to the UK government, there are, at present, something like 3.3 million unmarried couples in the UK. So, what rights accrue to the parties to a non-married relationship? In short, precious few.

“Common law marriages”

Unmarried relationships are nothing new but the prevalence of them has greatly increased in the decades since the 1960s. Accordingly, the terminology has evolved too. The term “common-law wife” or “common-law husband” were once a widespread and accepted term to describe an unmarried relationship. Although still used occasionally, it has largely been replaced by the more generic and gender-neutral term ‘partner’.

But, for the purposes of family law, the term ‘partner’ is undefined and meaningless, despite its social acceptance. In a similar vein, the concept of “common law marriage” is an outright myth. As far as the law is concerned, there is no such thing. Consequently, “common law spouses” simply means an unmarried couple. The parties have few to no claims against each other, regardless of the level of social recognition accorded to their status or the number of years they have been together.

However, depending on the circumstances of the arrangement, an unmarried person may be able to claim some rights against their partner if (a) they were co-owners of a family home and (b) there are children involved.

Unmarried couples’ rights with property division

Unmarried couples often share a home which they regard as the family home. If they purchased the home together with joint resources or with each party contributing to the price, then each party will have respective rights in the property that reflect their respective financial contributions. If and when the couple splits up, it is simply a matter of either selling the property with each party being entitled to a share of the proceeds or one party buying out the interest of the other party.

However, if the family home is owned solely by one party and the other party merely lives in it, the situation becomes more complex. Ostensibly, the party who was merely living in the property has no rights or interests at all unless they can prove that they contributed to the property or they can show that it was agreed with the owner that they have an interest in the property.

If, for example, the non-owning partner contributed to the mortgage payments or maintenance and repair expenses or some other form of financial contribution, then a court may agree that they have a stake in the equity of the property. It is also possible to establish an equitable interest if the non-owning party carried out maintenance and repair work on the property, especially if they do so at their own expense.

The degree of equitable interest will depend entirely on the circumstances and be assessed on a case-by-case basis.

Unmarried couples’ child rights

If the unmarried couple have a child or children, then the provisions of the Children Act 1989 apply when the parties go their separate ways. If an unmarried partner has dependent children, then they will be able to continue living in the property provided by their former partner and they may also be able to claim a carer’s allowance for that child or those children. These rights will terminate once the child, or the youngest of them if more than one, has reached 18 years of age or completed his or her full-time education. Once the children are adults, you will lose the right to stay in the property and the allowance.

Unmarried couples’ rights when one dies

If one partner dies having left a valid Will under which the surviving partner benefits, then the surviving partner will be entitled to those benefits under the normal course of the law of Wills and inheritance. A problem arises, however, if the deceased partner died without a valid will, i.e., intestate. Unmarried partners have no rights or standing whatsoever under the intestacy rules. The only exception to this is where the surviving partner can prove that he or she was maintained by the deceased partner, in which case they may have a claim against the estate. Again, the amount that the formerly maintained surviving partner can claim will depend upon the individual circumstances.

Furthermore, the surviving spouse will be unable to claim any share of the deceased’s partner’s pension as pension-sharing legislation applies only to married couples. Alas, love does not conquer all.

Will this change in the future?

There are some serious discussions afoot to change the law to afford more rights and protections to unmarried couples. However, the problem arises in deciding upon the point at which the rights begin to accrue. Without some triggering event, such as a recognised marriage ceremony, it is extremely difficult to distinguish between different types of relationships. Nobody would want a situation where someone loses a proportion of their assets to someone else that they were merely dating. It may well be that this is a gap which proves too difficult to bridge.

If you believe that you may have some rights against your former partner, then it is essential that you get the correct advice from an experienced family lawyer who will be able to advise you on the steps that you may be able to take.

For further information and trusted legal advice regarding matters of family law, get in touch with our Resolution-accredited lawyers in London at Carlsons Solicitors.