Rights that unmarried couples do and don't have

  • Describe the differences in property ownership between married and unmarried couples
  • Explain how property ownership is determined in the case of unmarried couples
  • Summarise how child maintenance is determined
Rights that unmarried couples do and don't have

It is official. Following the government's recent announcement, lovers, single adults living alone or with children under the age 18, who have been kept apart by lockdown would be able to reunite and spend time together again in support bubbles (as long as they are in England).

The government's advice at the beginning of lockdown had been that in the face of Covid-19, couples, "should test the strength of their relationship" and move in together or remain apart for the duration of the lockdown.

This was a big decision for those in relationships, especially for those who would otherwise be living alone.

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Whatever the circumstances, now is a good time for couples to put aside some time to reflect and consider their options and the legal implications of living together.

So, what happens if things have gone well and the impulsive decision to fast track your relationship becomes a permanent arrangement or you decide that you can no longer face living apart?

It is a common misconception that if couples have a child and/or live together they have acquired the same legal rights as those who are married.

Unfortunately, unmarried couples have no claims on each other's property save under general contract and property law, or on death if they qualify under certain statutory provisions.

This reinforces the frequently held myth that if a couple live together for a certain length of time, they then acquire the legal status of a married couple, a "common law marriage".

In England and Wales, (different provisions apply in Scotland) it is only when a couple marry that they assume financial obligations to each other.

Most significantly, it is only marriage that empowers a court to make orders redistributing their assets and for the payment of maintenance in the event that they subsequently separate.

Parents will, however, have financial obligations towards their children irrespective of their marital status.

As family lawyers, we all too often experience how difficult it is for unmarried clients to come to terms with the fact that in the eyes of the law they are not entitled to any financial support.

However, one way a claim can be made, albeit indirectly, is by a claim for financial provision for any child of the relationship. This may also result in the right to occupy property necessary for the support of the child.

Financial provision for children

Where children spend the majority of their time with one parent, that parent will be able to seek child maintenance from the other through the Child Maintenance Service (CMS).

The CMS applies a set formula depending on the level of the non-resident parent's income, the number of children involved, and how much time they spend with each of their parents.

The CMS formula does not take into account any income over £156,000 gross a year, but an application can be made to the court to "top up" child maintenance where the non-resident parent's income is in excess of this amount.