The legal rights and protections for couples who live together without marrying—unmarried couples—are often misunderstood. Unlike married couples or those in civil partnerships, unmarried couples face a different set of legal challenges when it comes to the division of assets and financial arrangements upon separation. This article explores the intricacies of the legal framework governing the rights of unmarried couples in England and Wales, offering insights into property ownership, trusts, and the potential benefits of cohabitation agreements.

Legal Status and Misconceptions

A significant misconception persists in  England and Wales regarding “common law marriage.” Contrary to popular belief, common law marriage does not exist in this country. No matter how long a couple has lived together or whether they have children or jointly own property, they do not have the same legal rights and protections as married couples or those in civil partnerships. This distinction becomes particularly critical when relationships end, and the division of assets and financial obligations must be determined.

Division of Assets: A Complex Legal Area

For married couples or civil partners, the court has the power to adjust and divide family assets based on fairness and equality. This process considers the length of the marriage, the contributions of each partner (both financial and non-financial), and the needs of any children involved. However, for unmarried couples, the court’s role is limited to a declaratory function. This means that assets are divided based on existing ownership rather than what might be deemed fair or equitable.

Property Ownership: Joint and Sole Ownership

Joint Ownership

When unmarried couples jointly own a property, the legal declaration made at the time of purchase is crucial. If the ownership shares are explicitly stated and legally recorded during the conveyancing process, this declaration is binding. This often occurs through a Declaration of Trust or a cohabitation agreement. Without such an express declaration, the court may need to determine the intended ownership shares based on evidence of financial contributions and intentions at the time of purchase. This area of law, grounded in trust law principles, requires expert legal advice to navigate effectively.

Sole Ownership

In cases where the property is owned solely by one partner, the other partner may still claim an interest in the property. This claim can be established through several legal doctrines:

  1. Resulting Trust: This arises when a non-owner contributes financially to the property, such as paying towards the purchase price or mortgage, with the implied intention that they would share in the property’s ownership.
  2. Constructive Trust: If both partners agree that the non-owner will have a share in the property and the non-owner relies on this agreement by making financial contributions, a constructive trust can be established.
  3. Proprietary Estoppel: This applies when the property owner promises or allows the non-owner to believe they will have a share in the property, and the non-owner relies on this to their financial detriment.
  4. Temporary Interest: In some cases, a Property Adjustment Order might provide temporary interest in the property to benefit the children of the relationship while they are minors.

Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)

If a non-owner establishes an interest or potential interest in a property, TOLATA provides a legal framework for addressing disputes. Under Section 14, the non-owner can apply to the court for an order declaring their interest and potentially ordering the sale of the property. The court considers various factors, including the property’s original purpose, the couple’s intentions, the welfare of any children, and the interests of any secured creditors.

Other Assets and Financial Support

Unmarried couples do not have automatic rights to each other’s assets beyond jointly owned property. They also cannot claim maintenance from each other, though child maintenance claims are separate and handled through the Child Maintenance Service or under Schedule 1 of the Children Act 1989. Furthermore, unmarried couples cannot claim a share of each other’s pensions.

Cohabitation Agreements: Planning Ahead

Given the legal complexities and potential disputes, unmarried couples are strongly advised to consider a cohabitation agreement. This agreement, drafted and signed before or during cohabitation, outlines how assets and finances will be managed and divided in the event of a separation. Although not legally binding, such agreements can serve as crucial evidence of the couple’s intentions and can be upheld by courts if both parties received independent legal advice, and there was full and frank financial disclosure.

Legal Advice and Protection

Due to the intricate nature of property and trust law applicable to unmarried couples, seeking legal advice early is essential. We at Midwinters  can help draft cohabitation agreements, provide guidance on establishing beneficial interests, and represent parties in court if disputes arise. The cost of legal services varies based on the complexity of the assets and circumstances involved, with typical fees for drafting a cohabitation agreement ranging from £1000 to £2500 plus VAT

Unmarried Couples and Their Rights

In conclusion, legal rights for unmarried couples are markedly different from that for married couples or those in civil partnerships. The absence of statutory protections means that the division of assets and financial arrangements upon separation must be meticulously planned and documented. Cohabitation agreements offer a proactive approach to managing these complexities, providing clarity and protection for both parties. By understanding their rights and seeking appropriate legal advice, unmarried couples can navigate the challenges of property ownership and asset division more effectively.

Unmarried couples who live together face unique legal challenges, and it is crucial to be aware of the potential pitfalls and protections available. Whether through joint ownership declarations, trust law principles, or cohabitation agreements, understanding the legal framework is essential for safeguarding one’s interests in the event of a relationship breakdown.