Publish date

11 May 2023

Unmarried and separating: where do I stand?

Your rights upon separation will depend on whether or not you are married. With a rise in the number of couples electing to live together but remain unmarried, but very few of them being aware of the difference in rights available to them by not being married, it’s more important than ever to know the law and how it relates to you, if you are unmarried.

Do I as an unmarried partner have the same legal protection as a married person when separating?

When it comes to the finances, the short answer is no! Although many people wrongly assume there exists a status known as a ‘common law spouse’ which entitles them to automatically acquire the same rights as married couples after time, no such status exists. For that reason, unmarried couples generally have significantly fewer legal rights upon separation than someone who is married or in a civil partnership.

When it comes to the arrangements for the children, your rights on separation are the same whether you are married or not, save that parental responsibility may be affected if you are not named on the birth certificate and are unmarried at the time of birth.

What will happen to my home on separation?

What happens to your home upon separation will depend on how the property is owned, regardless of whether you have children. If both you and your partner are named on the title deeds to the property either as ‘tenants in common’ or ‘joint tenants’, you are likely to receive a share of the proceeds of sale when the property is sold, subject to any express agreement stating otherwise. Every case will be decided based on its own facts, and so a detailed analysis of the background and circumstances around the purchase of the property would need to be considered.

If the home is registered in your partner’s sole name, your rights are likely to be more limited. If you made a financial contribution towards the purchase price, or you contributed to the monthly mortgage repayments or other capital improvements to the property, you may be able to establish an interest in the property, even if you are not a named owner. There are other circumstances when you may be able to establish an interest in the property, even without making a financial contribution, but such instances are rarer. Again, consideration of all of the facts would need to be given to determine whether or not that is likely to be the case.

We aren’t married and we don’t have any children together – what rights do I have?

Unlike a divorcing married couple or a couple dissolving their civil partnership, neither you nor your partner will have any financial obligation toward each other upon separation. Whilst this means that you are able to retain all of your income and your assets, it also means that you do not have any financial claim against your partner’s income (by way of ‘spousal maintenance’ for example) or their assets. Your claims will be limited to any property in which you have an interest, joint assets, chattels or pets, for example.

We aren’t married but we do have children together – what rights do I have?

Although you and your partner are not obliged to support each other financially upon separation, having children can make a difference because one parent may have to pay child maintenance to the other during the child’s minority or even until the end of university. Assuming the children live with you, the amount of child maintenance payable will depend on the number of children you have, your partner’s gross weekly income and also the number of nights the children stay overnight with your partner. A claim for child maintenance will typically be dealt with through the Child Maintenance Service, though the court can be asked to order ‘top up’ maintenance if a paying parent’s income is greater than £156,000 per annum. Claims can also be made in respect of joint debts.

If you are an unmarried father, you may have limited rights when it comes to making decisions regarding your children. Unless you are named on the child’s birth certificate, have attained parental responsibility from the court, or have entered into a formal written parental responsibility agreement with your child’s mother, you will not have parental responsibility. This means that you will be unable to make, or indeed be consulted on, many important decisions relating to your child, such as what school they attend, what name they are known by, and if your former partner wished to move abroad with your child.

In some circumstances, it may be possible for you to apply (or your partner may apply) for financial provision for a child under Schedule 1 of the Children Act 1989. The court can make various orders such as lump sum payments, a settlement or transfer of property order, payment of “top up” child maintenance over and above what the Child Maintenance Service would calculate, payment of private school fees and provision of a vehicle to transport the children to and from school. Any provision of a property for you and your child to live in will typically be limited until the child completes full time education, at which point the property would revert back to the other parent.

How do we resolve issues relating to our children or our finances upon separation?

In some circumstances, separating couples are able to agree future arrangements for the children or their finances without having to involve solicitors. However, there are many occasions when matters are much more complicated and an agreement cannot be reached.

If you cannot agree, one option is for you and your partner to attend mediation. There are many advantages to mediation, including the fact that it is often considerably cheaper, quicker and less stressful than court proceedings. However, if mediation is not appropriate, it may still be possible to resolve matters without having to attend court. Our family lawyers will be able to provide pragmatic advice as to the options available to assist you with trying to reach an agreement with your partner, which can be recorded in a separation agreement.

A separation agreement is a formal document which records financial arrangements agreed between unmarried couples after separation. It can also record agreed child arrangements. Such agreements act as evidence of the decisions made by separating parties.

A separation agreement may not be legally binding, but it will be evidence of the parties’ intentions at the time of separation and provided certain guidelines are followed it is likely to be upheld by a judge if there is a dispute at a later date. Our expert family lawyers will be able to advise you on the preparation of a separation agreement and the necessary steps to ensure that such an agreement is likely to be upheld.

If you would like the confidential assistance of Thomson Snell & Passmore in relation to anything referred to above, or there is anything else we can assist you with, please call us on 01892 510000 or 01322 623700.

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