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Separating When Unmarried

Less people than ever before are choosing to get married, which is good news for the divorce courts, at least – but what are the legal rights if you are planning on separating when unmarried? For many of these couples, a split isn’t as simple as dividing up a DVD collection – there are often children, property and joint bank accounts involved. Its important to remember that unmarried couples have no legal claim against each other as individuals, unlike married couples,  “common law man and wife” is a legal fiction.

Let’s take a look at the legal stance if you are separating when unmarried…


The family home is often the largest asset that a couple will own together. In the case of a divorce, the protocol for dealing with property is fairly simple, but what about a co-habiting couple that have never tied the knot?

The law here is based on trust law. If the couple purchased the home in joint names, they can choose to own it in one of two ways, reordered at the time of purchase. A couple could choose to own as joint tenants, meaning they would own the property equally despite what they may pay towards the purchase price.  Alternatively, they may own it as tenants in common, whereby they could own different shares and interests, for example if one had contributed more to the purchase and wanted this recognising.

If there is a dispute as to what should happen to the property at the time of separation,  the couple could instruct solicitors to help them negotiate and also attend at mediation to help them reach an agreement.

When the property is owned in joint names and if an agreement cannot be reached, either of the couple could make an application to the Court for a declaration as to their interests in the property, which will usually be how they agreed to own it at the point of purchase i.e  equally if joint tenants  or in defined shares,  if owned as tenants in common.  They can also ask for an order which forces the home to be sold. In deciding whether to order a sale, the Court would look at the purpose for which the property was purchased i.e as a family home and whether it is still needed for this purpose and the interests of a minor children. One party could potentially be given the option to “buy the other out” avoiding a sale, if they were able to secure the others release from any mortgage and raise a lump sum to pay to the other in consideration for their interest in the property

If the property is only owned by one half of the couple the situation is more complicated. If there is no written agreement to record the none owning partner would have an interest in the property, an investigation would have to be undertaken by the court to see if it was intended the none owner would have an interest.  In the absence of any clear agreement, only direct contributions to the purchase price would usually justify the Court drawing an inference there was such an intention.  Conduct and contributions from which an inference could be drawn that the party not on the legal tile would have an interest would usually be evidence of direct contributions to the purchase price or to the value of the property, such as payment to the deposit, substantial payments to the mortgage or paying for works or extensions to the property which have added to its value

If the property is rented, only the tenant whose name is on the original rental agreement will have the legal right to live there. Those who aren’t named tenants will need to have the landlord’s consent to live in the property, and the named tenant can ask you to move out with reasonable notice.

Children Maintenance

Luckily, the Child Maintenance Service has similar rules for non-married couples as it does for those who are married. None married couples can agree child maintenance between them at any amount, so long as they both agree.  No further action would be needed.  If they cannot agree they can approach the Child Maintenance Service to carry out an assessment and to collect maintenance.  The CMS uses a basic formula which takes a set percentage of the parents income, who does not live with the children. They would be given reductions if they have overnight contact with the children, or have any other children living with them who they care for.  Parents should always try and agree maintenance and avoid the involvement of the CMS,  as the CMS can charge both parents for dealing with a maintenance application.

Unmarried couples can only pursue maintenance from each other for their children,  unlike married couples, they have no right or claim for maintenance for themselves.

Cohabitation Agreements

Savvy couples that want to protect themselves legally can put together a cohabitation agreement – a legally binding document that sets out who owns what and allows the couple to document how property, assets, child support, personal belongings and savings will be divided and dealt  with, should the relationship come to an end.  This will be binding on them and the Court.  It avoids the need for lengthy & costly Court proceedings and negotiations at the point of separation

For more information about cohabitation agreements or to seek help with a separating when unmarried, talk to one of our solicitors here at Hopkins.

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