In brief: unmarried and separating – where do you stand?

Kate Daly 0:00 Cohabiting couples have very few automatic rights over property, finances, or inheritance. Even though cohabitation is now very common, the law hasn't yet caught up. Welcome to the divorce podcast where we explore relationship separation and parenting apart. If your relationship has ended or someone close to you is going through it, this podcast is for you. I'm Kate Daly, a relationship counsellor, divorce expert, and co-founder of amicable, a legal service helping couples navigate relationship change. Each episode looks at separation from a different angle, emotional, legal, or social, and with experts and special guests who share their own stories and tips to help people separate in a kinder, better way. Living together for years feels like a marriage in everything but name, but legally it isn't. So in this brief episode, I'm walking you through what rights unmarried couples actually have when they separate in England and Wales. We'll bust the common law marriage myth, unpack what happens to your home, money and children, and how separation agreements can help to protect you. So let's get started. The first thing I really want to say here is that there is no such thing as a common law marriage in England and Wales. And what that means is that it doesn't matter how long you've been living together. Living together for a long time doesn't create the same rights to property or belongings or finances as when you're married. And this applies whether you have children or not. So cohabiting couples have very few automatic rights over property, finances, or inheritance. Even though cohabitation is now very common, the law hasn't yet caught up. The government is actually looking at whether or not we should change this. And in the summer, there was a consultation asking for views and ideas about what should happen when couples cohabit. However, at the moment, the law is as it is, and there are no or very few protections for cohabiting couples. Just remember, I'm giving general information, not legal advice in this episode. So if there's anything you want to check out, please book one of our free 15-minute consultations or speak to your own legal representative. Let's talk a little bit about property and the home. So again, just like everything else, there's no automatic right to your partner's assets. And that includes if your partner owns the home that you're living in. If you split up, you don't automatically have the right to remain there. And who owns the property is going to come down to the paperwork. So that means whose names are on the deeds. If your name isn't on the deeds, then you have very few rights and you might find yourself in a situation where literally you pop out one day, your partner locks the door and doesn't allow you back. That's a real risk when you cohabit and have no ownership in the property. If you're not the owner and your relationship ends, but you feel you may have a claim, then you need to prove that you've made a financial contribution or a shared intention to sharing that property in your relationship. And that means going back through emails, looking at banking records. Perhaps you may did an extension or paid for new windows or something like that. In that case, you could have an interest in the property. So again, this is an area where you'll need some real specialist advice on whether or not you've got a claim. And just because you've got a claim, you always have to balance how much it's going to cost you to make that claim as well. So in any of this, it's always a lot better if you can come to an agreement yourselves about how you're going to move on and how to move forward. Now, for some people, this is a bit simpler. If they own a property together and their name is on the deeds, then sometimes they have what's called a declaration of trust. And that's where you state your interest in the property. So if you own the property jointly, then by default you own the property 50-50. But tenants in common gives you the opportunity to write down how much of a property you each own. So perhaps you put different amounts of money in, and therefore you might own it in different shares. So a declaration of trust is a good way if you own the property together, of setting out what the expectations are and there is no guessing. Now, another way of documenting what your intentions are is to get a cohabitation agreement. So, again, that's a way of writing down explicitly what you both understand the ownership to be and what you want to happen in the event that you split up. It's kind of just like setting out the rules in advance. And a cohabitation agreement is a really lovely way of making sure that you're trying to do the best for each other and making those agreements before the relationship is broken down and before you're in a situation where there's a lot of raw emotion involved. So I sometimes think of it as more of a kind of a good way, a good communication tool about money. Lots of people get worried about it and think it's preparing for failure or preparing for divorce, but it's not. It's just a way of having a very sensible, logical conversation so everybody knows what the situation is. Now, the other thing I get asked about a lot is children. What happens to children? Now, if you're not married and you have children, parental responsibility is a key factor. Now, parental responsibility is what parents have in order to make major decisions about a child's welfare. In an unmarried couple, it's automatic for the mum, the person that's given birth to the child. It's not necessarily automatic for the dad. And lots of people are very surprised to find that out. So again, it's worth having these conversations and understanding what the situation is before you actually have children. So in this scenario, if you want parental responsibility or checking whether you have it, you need to go back to the birth certificate. If you're named on the birth certificate and your child was born after 2003, then that will enable you to have parental responsibility for your child. If your name isn't on the birth certificate, you don't automatically have it. And you may need to seek legal representation or go to court to have parental responsibility. A court can grant parental responsibility and in rare cases it can take it away as well. But decisions about children are usually based on their best interests, and both parents have a shared financial and emotional responsibility. And irrespective of whether you have parental responsibility, you may still have a responsibility financially to your child as well. So again, it's quite a complicated area. It's worth having a conversation with one of our specialists or with your own legal person just to check out whether you do have parental responsibility and what that means. Now, irrespective of whether or not you have parental responsibility, child maintenance, if you pay it, is a statutory responsibility. So if you separate and you're not married, but you have a child, irrespective of parental responsibility, you still have an obligation to look after your child financially. So again, something that perhaps feels a bit inconsistent if you don't have parental responsibility, but something that's laid down on the statute. The other big one to think about is inheritance. So without a will, a surviving cohabiting partner doesn't have an automatic claim because intestinance rules favor close relatives. So that might not be what you want, irrespective of whether you divorce or not. And therefore, it's really important to get this checked out and make sure that you've got a will. For now, protections include a will, a declaration of trust, and a clear joint tenancy or tenancy in common arrangement. That's how you protect each other in the event you do separate, but you do want your partner to be able to remain in a property. And that's really key. So those documents are particularly key in making sure that you've got everything battened down and a surviving partner will have some claim, even though the claim isn't automatic unless you've got that will. Now, if you separate, do you need to go through a legal process like divorce? Well, no, not the same process. Legal separation and divorce are only for married couples and civilly partnered couples. But a separation agreement still gives you the opportunity to set out a document similar to a consent order that puts down the formal record, a formal written record of what you want to happen to property and to money and to other finances on separation. Now it's not automatically enforceable in the same way that a consent order is when you're married, but it does carry weight in court and it's part of contract law. So it does hold validity and meaning. The court will try and uphold it if it's been done correctly. So it's certainly worth considering having a separation agreement if you're not married and you end up splitting up and going your separate ways. It's not essential, it's not required. You should protect yourself wherever you can when you're separating. And whilst the laws and the rules are not yet in place to protect you in the same way that you can when you're married, cohabiting couples can still act. So the key takeaways from this are make a will. That's super important. Consider a cohabitation agreement that sets out exactly what you want to happen and makes a record of what your intent is, andor have a declaration of trust put in place which governs any property you might jointly own. The key thing to do is check things like whether your home is held as joint tenants or tenants in common and decide whether that is the correct way you want to hold the property. And think about making sure you understand whether or not you've got parental responsibility for any children that you have. And if you're still together and you haven't, then get that changed sooner rather than later. I hope that was useful. It's a whistle stop tour of separating when you're cohabiting rather than married. Don't forget, for separation and co-parenting supports, you can visit amicable.co.uk where you can explore our resources or book a free advice consultation if anything in this episode has piqued your interest. And of course, you can find me on LinkedIn and Insta. You can hear about new podcast episodes by subscribing for updates and visiting thedivorcepodcast.com, or you can find us on your favourite listening platforms. We'd love to know how we can help further. So share questions on divorce, separation, or co parenting with us at hello at amicable.co.uk. Thanks very much for listening. I hope you found this useful.