Single and unready to mingle? Financial claims between unmarried couples

If you and a partner live together for 30 years with no children, there are little or no financial claims available on separation. If you live together for 29 years and 364 days, and are married for one day, you potentially have a financial claim on divorce to share in assets built up over 30 years as though you had been married all along. Is this fair?

If you are unmarried but cohabit ‘as husband and wife’ and your partner dies, you can potentially claim against their estate if you are not reasonably provided for under a Will. Is it right that this relief is only available when a couple is separated by death, and not when separated by choice?

Emily Thornberry, the Shadow Attorney General, has recently indicated a desire for reform should Labour come to power, but whether and, if so, how this might be enacted remains unclear. The Law Commission recommended reform as long ago as 2007 and their proposals were never acted upon. Whether or not the law is reformed, people should understand the financial consequences of a decision to marry – or not to do so – and consider what steps might be taken to ensure their financial security.

The number of couples choosing to live together in a stable relationship, without getting married or entering a civil partnership, has increased by 144 per cent between 1996 and 2021, to over 3.6 million couples. It is the fastest growing family type.

For some, the decision not to marry is an active one – often motivated by a desire to avoid mingling the financial waters with potential claims on divorce. For others, there is a lingering belief that they may have a measure of protection from a ‘common law marriage’ i.e. that if they live together for a defined period of time, then they will obtain certain rights. This is completely incorrect.

This article explores the (limited) rights of unmarried couples.

Home alone

Most couples rent or own property together, and the decision of how their home should be dealt with on separation is a key concern. Married couples are afforded certain protections such as the right to occupy a family home when it is in the other party’s legal name. This is not available where parties are unmarried. If an unmarried partner is not on the lease, they may be left with very little recourse to remain in occupation should the relationship break down.

There are sometimes claims available for parties who own property together, and it is also possible in some circumstances to claim an interest where the property is in the other party’s sole legal name. However, untangling the web what the parties intended, and what promises were or were not given, can be complex and costly.

Single parents

Financial claims are available where unmarried couples have children. However, these are primarily to meet the needs of the children and are much more limited than in a matrimonial context. An unmarried parent will never share in the assets built up during the relationship. They may be entitled to provision for housing and income while a child is under 18 or in full time education, but thereafter the provision ceases. This means an unmarried mother – who may have been out of the workplace for many years looking after the children – can face a financial cliff edge.

Cohabitation Agreements

One way to address such concerns is via a cohabitation agreement. These can serve as vital tools for unmarried couples who wish to define their financial arrangements, both during a relationship and in the event of separation.

Such agreements can be very simple; for example defining ownership of a shared home to avoid an expensive dispute as to ownership in the future.

They can also be wide-ranging; covering how day-to-day expenses should be met, how a shared property should be dealt with and what financial support might be payable in the event of a separation.

Cohabitation agreements can provide couples with clarity and security where there may be no other financial claims available. It may be a conversation worth having during a relationship, rather than waiting until a breakup where the other party might be more inclined to be single and less inclined to mingle their financial resources at all.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2024