Unmarried Couples: what happens if you break up?

For a variety of reasons, many people these days are making the choice to live together without the formality of a marriage. It could be that one or both of the partners is already married to somebody else and can’t obtain a divorce. It could be that they have some kind of atheistic objection to the concept of marriage and all the ceremony that goes with it. Or it could be entirely the opposite, where the couple is waiting until they can afford to splash out on a really lavish and opulent wedding.

Whatever the reason may be for why a cohabiting couple chooses not to marry, there are some very serious legal issues of which they need to be aware. Many couples are shocked upon discovering just how little legal status their relationship has in the eyes of the law. Want to know how little? The answer is actually “zero”, or in other words, in the UK there is no legal status attached to a non-legal marriage or non-legal civil partnership. The so-called “common law marriage” simply does not exist in common law!

The clue, as you have probably guessed, is no special secret. It’s been right out there in the open the whole time, but people still have some funny ideas about the law, probably from watching too much American TV. But even marriage ceremonies contain the phrase “lawfully wed”, and you need to know these are not just empty words. They are in the ceremony for a reason, and that reason is that marriage is a contract between two people.

You can dress it up in all kinds of romantic disguises, but in the unclouded eyes of the law, marriage is a binding contractual agreement where two individuals merge into a single legal entity, jointly responsible for whatever they each may do unless there are specific exceptions in a bona fide legal contract (usually in the form of a prenuptial agreement). Essentially, the legal process of creating a marriage is not very different from forming a business partnership. It’s just that the celebrations that follow the successful launch of a new business partnership are usually quite different to those that follow a marriage.

It is worth mentioning at this point that marriage is certainly a serious matter and you shouldn’t enter into a marriage any more frivolously than you would enter into a business partnership. You need to be really certain, because you are going to be legally responsible for the other partner at least for the duration of the marriage and sometimes long after it has ended. This is one reason why marriage is not necessarily more advisable than a simple cohabitation, even though a marriage has full legal recognition and a cohabitation doesn’t.

This legal responsibility applies only to civil matters. If your spouse commits a crime, it does not necessarily follow that you will get into trouble for it unless there is evidence that you knew about it and did not report it to the police. On the other hand, if your spouse is working on the roof and accidentally drops a can of paint on somebody below, you may be responsible for any damages that arise, even though you personally were not involved in the incident. In a similar way, you are both also legally responsible for anything your children may do.

That issue of legal and personal responsibility for the spouse is the main disadvantage – if you choose to view it that way – compared to cohabitation. Now let’s take a look at some of the advantages:

1. Dwelling Rights

In a marriage or civil partnership, both partners have full legal rights to enter the family home, except where:

1. a) there is a court order rescinding this right for one or both of the partners;
2. b) the police have given a clear instruction for one of the partners to not enter; or
3. c) there is a legal agreement in place where one of the partners has forfeited this right.

In a simply cohabitation situation, you have no such right unless:

1. a) your name is listed on the title of the property as an owner;
2. b) your name is listed on a lease contract as a tenant; or
3. c) there is a clause in a cohabitation agreement which grants you this right.

2. Duty of Care

When you get married, you make a vow to take care of the other person in sickness and in health, for richer or poorer, and so on. These are not merely poetic words that are exaggerated for the sake of pomp and ceremony. Marriage implies a duty of care for the other person, and every court in the UK will uphold this view. What this means is that if your spouse becomes seriously ill or injured, you can’t just run away. You have a duty to ensure adequate care for the other person, including the payment of any necessary costs. The real twist here is that this still applies even if you have moved out but not yet divorced.

The only proper way to remove duty of care is to divorce or to die, and in the former case, the duty of care will only be fully removed if you divorce before you know of some medical condition affecting your spouse, or the courts are still likely to take the view that you have a persistent duty of care even after divorcing.

If you are cohabiting, then neither of you has any official duty of care towards the other, unless there is a clause in a cohabitation agreement that explicitly states that you do.

3. Right of Inheritance

If you die without making a will, your entire estate is deemed to be “intestate”, and after a due waiting period, your next of kin will inherit most (if not all) of your estate. This won’t necessarily happen automatically. They may have to make a claim. But there is nothing legally that would prevent them from inheriting. When you are married, your spouse is automatically your next of kin. The only way to prevent your spouse from inheriting your estate is to leave a will (but you still have to make it fair… a spiteful will is an invalid will).

A really big problem for cohabiting couples is that sometimes one of them dies and the other person is expecting they will continue to have a roof over their head, a car to drive, and a bit of money in the bank. They may even continue to go about their daily business as if this was the case. What they usually are not aware of, until it suddenly slaps them in the face, is that they have no legal right to anything. What actually ends up happening is that your evil uncle Alvin, whom neither of you liked, is declared your next of kin and inherits the lot, then kicks your partner out into the cold. Something like that, anyway.

Here there are two options. A cohabitation agreement that explicitly sets out what should happen in the event of your untimely demise, or a legal will. The latter is actually better. Unlike if you were married, however, there is absolutely no legal requirement for your will to be fair. It can still be contested, but not on the grounds that you have a duty of care to your partner.

A related point is that if you are married you are exempt from inheritance tax on the estate of your spouse (because legally you’re a single entity, there is technically no transfer of assets from one entity to another, and thus nothing to be taxed). For cohabiters there is no exemption, and you will be liable for payment of any taxes that are levied.

4. Pension Rights

A surviving member of a married couple can continue to receive a state pension that was paid to their spouse upon the death of that spouse. They may also be able to claim a bereavement allowance. Private pension schemes will also usually honour the obligation to continue payment to the surviving spouse without question.

If you are just cohabiting and not legally married or in a civil partnership, you don’t really have any pension rights. You can usually name your cohabitation partner as a beneficiary to receive your private pension payments if you die, but it is up to the operators of the pension fund as to whether they will honour your wishes.

5. Access to Children

When a couple is married, any children they have are legally their children and both parents technically have equal rights. That is not the case when you are just cohabiting. If you are not named as a parent on your child’s birth certificate, you could possibly have no legal right of access to the child.

This is even more of an issue if the other parent dies, particularly if you are not the natural parent of the child. You may well face a scenario where state authorities drag the children away kicking and screaming and put them into “care”. This happens because legally you are not considered to be a parent. Here again a proper cohabitation agreement and a legal will can make a big difference to what happens with regard to your children if you cease to be a couple for any reason.

When a married couple divorces, the court divides their assets and may make an order that one of the partners must provide maintenance payments to the other. This absolutely never happens if you are unmarried. It simply is not possible. If you have children, you can apply to receive maintenance payments for them but it is technically their money, not yours, and you must be able to prove that the other party is genuinely a natural parent of the children. If you have multiple children but your former cohabitation partner is only the natural parent of some of them, then you will only receive payments for those children and not for all of them.

From all of the above it is very clear that unmarried couples can encounter severe difficulties if the break up or if something serious happens to one of them such as illness, injury, or death. Most of the potential problems can be circumvented by a properly drawn up legal cohabitation agreement, and of course it never hurts to supplement this with a legal will.

These will give you a lot more power and some legal advantage compared to if you don’t have them, and it is to the benefit of both parties in the partnership to make sure that you get these important documents. Then you will have peace-of-mind and you may even find that living together is actually easier and less stressful without the burden of worry about what may happen if you don’t stay together. Strange as it may seem, this may actually help to ensure you don’t break up.

For advice and assistance with matters such as cohabitation agreements, prenuptial agreements, and legal wills, you can contact us on 020 7381 8111 or send an email to [email protected].

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