Although potential significant changes to the financial legal rights of unmarried cohabiting couples could be on the way under the current UK Government, nothing has changed yet – so what does the landscape look like for unmarried partners going through relationship breakdown?
To be clear, there is no ‘common-law marriage’ in the eyes of the law. Unmarried partners do not acquire automatic financial claims against each other simply by living together, regardless of the length of the relationship. In the eyes of the law you are either married or you are not – and there is a stark difference in your rights respectively.
When cohabiting couples separate, outcomes largely depend on property law. Claims turn on legal ownership, declarations of trust and, where appropriate, trust principles to establish a financial interest in the property. In practice, the court examines who owns the property on paper, what the parties expressly agreed, and whether conduct and contributions support a different beneficial share. These cases are decided in the arena of the civil courts, not the family court and, as such, the financial claims up for grabs are much more limited in scope. This approach is entirely different from that taken for married couples, when the starting point is an equal division of the matrimonial assets, regardless of in whose name they are held.
There is also no general right to spousal-style maintenance for an unmarried partner. Child-related financial claims may be available under the child support regime and Schedule 1 to the Children Act 1989, which can provide for housing or lump sums for the benefit of a child, but these are not the same as relationship-based claims between adults.
If a cohabiting partner dies without a will, the intestacy rules do not automatically provide for the surviving partner. Provision may be possible by making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if the statutory criteria are met but this is not automatic and is fact-sensitive, a position that is markedly different from the rights of married couples; a spouse is first in line to inherit from the estate even without a will in place.
Looking ahead, the Government has indicated an intention to examine potential reforms with the aim of improving fairness and certainty for cohabitees, although specific proposals and timelines for change have not been confirmed.
There are several practical steps cohabiting couples can consider taking now to reduce their risk in the future. A tailored cohabitation agreement can set out how property, savings, debts, and household costs are owned and shared, and what would happen on separation. If property is involved, a declaration of trust can record beneficial shares and any agreed mechanisms for buy-out or sale. It is wise to keep clear records of deposits, mortgage and bill contributions and any renovation spending; review how any property is held; make or update wills; check and update beneficiary nominations for pensions, life insurance and death-in-service benefits.
It is also worth considering lasting powers of attorney to empower each partner to assist with health and financial decisions if the other loses capacity.
We are here to help
Here at George Ide LLP we can help you navigate the future by advising on cohabitation agreements, declarations of trust and preparing wills. We also routinely advise clients in relation to property and trust disputes, Schedule 1 claims for children, and inheritance provision claims. Contact our specialist lawyers for individual, tailored advice.
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Author: Alice Leadbeatter
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