The Sherlock Split – advice for unmarried cohabiting couples separating

The couple had been together for some 16 years and have two children. They famously never married.

Many couples today choose not to marry (cohabit). Here are four things to be aware of if you are an unmarried cohabiting couple and your relationship breaks down:

There is no need to start divorce proceedings if you have never married.

Lots of people believe that if they live with another person for a certain period of time, they will eventually become “common law married”. This is not the case and there is no such thing as a “common law husband” or “common law wife”. There is no need for you to divorce your ex if you separate, but were never married. Divorce applies to married couples only.

What happens to the family home may be more complicated if you have never married.

If you are married and separate, you will both have claims to your home (plus any other properties); regardless of who owns what and even if you personally are not named as an owner of any property. If you are cohabiting and the two of you have, then, unless you agreed otherwise when you bought it, you should both be entitled to something from it on separation.

If you are cohabiting and only one of you owns the house, the basic legal position will be that the non-owner has no claim to it. If you find yourself in this situation, you may have to look to the law of equity and trusts or proprietary estoppel to establish an interest in the property. If you have children, there may also be remedies available under the Children Act 1989. These areas of law are more complicated and less favourable than the law that applies to married couples dealing with properties.

You will not have any claim to the finances of a partner you live with if you have never married.

You will have no claim to the finances of your ex if you were not married unless you shared other joint assets, such as a joint bank account. Anything in your ex’s sole name on relationship breakdown will be theirs to keep, including their pension, income and any savings. If you have children you may be able to pursue a claim for financial provision under the Children Act 1989, but be warned this is a difficult area of law.

Matters concerning children are dealt with in the same way as with married couples.

People often think that, because the financial position on the breakdown of a cohabiting relationship is less favourable than for married couples, so is the position in relation to children. This is not true.

Children matters (e.g. who the children live with after separation, where they go to school, child maintenance etc.) are dealt with in the same way for all parents on a relationship breakdown, regardless of whether they were married or not.

One way to secure your financial position if you are living with or plan to live with someone without getting married is by entering a Cohabitation Agreement with your partner.

A Cohabitation Agreement can deal with what happens with the finances if you split up in future and may help you to avoid a situation where you leave the relationship with nothing, or where expensive court proceedings have to be started.

To speak with the Cohabitation Agreement solicitors at Slater and Gordon Lawyers call freephone 0330 041 5869 or contact us online.

All information was correct at the time of publication.