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Married and Unmarried Couples - What Are Your Rights if Separating?

View profile for Danielle Dyer
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When couples separate one of the first questions, we will ask, is whether you are married or not - but why does this make a difference? This article aims to provide an overview of the key legal differences between married and unmarried couples upon separation.

Is Common-Law Marriage a Thing?

No. There is no such recognised relationship in law, as a Common-Law Marriage, and couples that live together who are not married do not acquire the same rights as those that are married.   It is a common misconception that unmarried couples who have lived together for a long period of time (who do or do not have children) have become a ‘Common-Law Marriage’ and have acquired the same rights as those that are married. 

This means that cohabiting couples do not have the same financial claims against one and other as married couples do upon separation.

Key Differences between the Rights of Married and Unmarried Couples:

Upon marriage, married couples automatically acquire rights under the Matrimonial Causes Act 1973 (‘MCA’) which protects them upon divorce or separation. The MCA enables married couples to bring financial claims against one and another in respect of assets such as property, pensions, investments and bank accounts etc whether owned jointly, solely or even pre or post marriage. Married couples can also make a claim against the other for spousal maintenance payments.

Unmarried couples do not acquire these same rights and so it could be said that unmarried couples are potentially left exposed and vulnerable to financial hardship or difficult financial disputes following the breakdown of their relationship, particularly if the relationship is long and the couple have either jointly, or personally, acquired a number of assets during their time together, or there is disparity between the couple’s financial incomes.  This is because there is no legal framework which assists unmarried couples following their separation and the distribution of their financial assets.                                                                                                                                                                                                 

By way of example, a common asset usually at the heart of any relationship breakdown is the Family Home. If married, the MCA gives married couples a right to a financial claim in the Family Home whether the property is jointly owned by the couple or not. An issue that often arises is when cohabiting couples live together, but only one of them is named as the legal owner of the property. If it cannot be agreed how the property will be distributed between the parties, this can leave parties open to potential lengthy and costly litigation under the Trusts of Land and Appointment of Trustees Act 1996.                                                                         

It is important to stress that it does not matter if you are married or unmarried when it comes to children. If the couple have children, The Children Act 1989 is applicable to both kinds of relationship and to parents who do not live together.

How can Unmarried couples protect themselves?

Despite there not being a legal framework which protects unmarried couples in respect of financial matters upon separation, unmarried couples can take steps to regulate and protect themselves should the relationship later breakdown by entering into a Cohabitation Agreement.

Cohabitation Agreements are not legally binding, but they can be very persuasive and if prepared properly they can be vital should a dispute arise.  They can be entered in to at any point during the relationship, but naturally the earlier they are entered in to prior to the separation the more likely it is that it will be supported by the Court.

Contact us 

Should you require any assistance in relation to marital or cohabitation separation or should you wish to enter into a Cohabitation Agreement please do not hesitate to contact our experienced and friendly Family Team on 01252 733 770 or email who will be happy to help.