If you’re living with your partner or planning to move in together, you may believe you have a “common law marriage”, granting you automatic legal rights. This is one of the most pervasive and dangerous legal myths in England and Wales today. The reality is starkly different: the law offers very few protections for unmarried couples, regardless of how long you’ve been together or whether you have children.
This comprehensive guide will dismantle the myths, explain your actual legal position, and show you exactly how to protect yourself, your assets, and your family through proper legal agreements.
The “Common Law Marriage” Myth: What Are Your Legal Rights If Not Married?
To be unequivocal, “common law marriage” does not exist in England and Wales law. Whether you have been cohabiting for six months or six years, the legal system will view you as two separate individuals, with almost no automatic rights to each other’s property, income, or assets.
This fundamental principle encompasses everything from asset ownership and finances to what happens if you separate or if one partner were to pass away. As a result, the short answer to “what are your legal rights if not married?” is: very little.
The Reality of a Non-Marital Relationship
When you’re in a non-marital relationship, you can face significant legal vulnerabilities:
- Property: If the family home is in your partner’s sole name, you have no automatic right to live there or claim a share of it, regardless of your financial contributions to the household or mortgage.
- Finances: You have no right to claim ongoing financial support (maintenance) from your ex-partner after separation.
- Pensions: You have no entitlement to a share of your partner’s pension, a potentially highly valuable asset.
- Inheritance: If your partner dies without a will, you have no automatic right to inherit any of their estate, which could leave you homeless and financially vulnerable
This lack of legal status creates a cohabitation crisis — a situation where couples who’ve built lives together for decades can find themselves with no legal claim to the family home or any financial support after separation.
“Not Married But Splitting Up”: The Daunting Reality of a Non-Marital Relationship Breakdown
When an unmarried couple separates, the process is governed by property law, not family law. This means the courts are not tasked with achieving a “fair” outcome as they are in divorce. Instead, they must determine strict legal and beneficial ownership.
Key areas of conflict in laws for unmarried couple breakups include:
- The Family Home: This is the most common and contentious issue. The court will look at:
- Legal Ownership: Whose name is on the title deeds? This person is defined as the legal owner.
- Beneficial Ownership: Does the non-owner have a beneficial interest? This is not automatic. You must prove you had a “common intention” to share ownership and acted to your detriment as a result. This is sometimes demonstrated through a direct financial contribution to the purchase price, a significant deposit, or paying for major renovations.”
- Children: This is the one area where the law provides a framework. Claims can be made for child maintenance via the Child Maintenance Service. Furthermore, under the Children Act 1989, a parent can apply for a lump sum or property adjustment for the benefit of the child. However, this is not a claim for the parent themselves and is typically limited to providing a home until the child reaches adulthood.
- Possessions and Savings: Items are generally owned by the person who bought them. Gifts given to one partner belong to that person, while jointly used assets can become sources of dispute, requiring evidence of who paid for what.
Given this complexity, relying on the courts is often a risky, expensive, and stressful last resort. The smarter approach is to prevent these disputes from ever arising.
The Three Pillars of Protection: Legal Agreements for Unmarried Couples
Fortunately, while unmarried couples’ rights may be severely limited, you’re not powerless. You can create your own legal safety net by utilising one of three agreements that provide the clarity and security the law otherwise denies you. These agreements are “Cohabitation agreements, Separation Agreements, and a Declaration of Trust:
Pillar 1: The Cohabitation Agreement (Your Prenup Without Marriage)
What is a cohabitation agreement? A cohabitation agreement is a formal document setting out the financial and practical agreements of your relationships whilst you are together. Crucially, it also outlines what would happen if you separated.
Many people ask, “can you get a prenup without being married?”. The answer is, effectively yes, and it’s called a cohabitation agreement. It serves the exact same purpose as a prenuptial agreement: to protect assets and define financial arrangements for unmarried couples and partners who don’t plan to marry.
Why do you need it? A cohabitation agreement is the single most effective tool for non-marital relationships. It acts to turn uncertainty and grey-areas into black and white certainty. It is absolutely essential for anybody who values financial security.
What It Can Cover:
- How ownership of the home is split and what happens if it’s sold.
- How mortgage, rent, and household bills will be paid.
- How bank accounts, savings, and investments are handled.
- What happens to pets, vehicles, and other valuable possessions.
- Provisions for any children from previous relationships.
Is it legally binding? While not automatically binding, a cohabitation agreement drafted by a specialist solicitor is overwhelmingly likely to be upheld by a court. This is because it provides compelling evidence of a couples’ intentions, marking it as superior to having no agreement in place.
Pillar 2: The Declaration of Trust
What is it? A Declaration of Trust is a specific legal deed that relates solely to a property. It’s often created alongside a cohabitation agreement or when purchasing a home together.
Why do I need one? A declaration of trust provides absolute clarity on financial interests in your home, which is often your most valuable asset. This document eliminates the potential ambiguity that often causes bitter disputes when people are not married but splitting up.
What it Can Cover:
- The exact percentage of the property each of you owns.
- How the deposit was contributed.
- How mortgage payments and renovation costs will be shared.
- What happens if the property is sold — how the sale proceeds will be divided after repaying the mortgage.
A declaration of trust can be essential in avoiding costly and acrimonious disputes over property, providing a clear roadmap for a fair split.
Pillar 3: The Separation Agreement for Unmarried Couples
What is it? If your relationship has already broken down and you didn’t have a cohabitation agreement, a separation agreement for unmarried couples can be an ideal tool for a clean and organised break. This is because it formalises any financial settlement you reach.
Why do I need one? A separation agreement for non-married couples provides a written record of your agreement, preventing future claims.
While it’s a contract rather than a court order, if drafted fairly, with both parties having received independent legal advice and providing full financial disclosure, the courts will look to give it significant weight on the decision-making process.
What it Can Cover:
- The division of sale proceeds from the family home.
- Who will stay in the property in the short term.
- The division of savings and other assets.
- Arrangements for any children.
Do I Need a Prenuptial Agreement? Understanding Prenups in the UK
For those who eventually decide to marry, a prenuptial agreement can be one of the most powerful tools available. Many people wonder, “Can you get a prenup in the UK?” The answer is absolutely yes — and if you have assets to protect, you should seriously consider one.
A prenuptial agreement is a legal document created before marriage that outlines how assets, property, and finances will be divided if the marriage ends. English law treats properly drafted prenups as “decisive” factors in divorce proceedings.
Marriage Without Prenuptial Agreement: The Risks
Entering marriage without a prenuptial agreement means your financial future will be determined entirely by the court’s discretion should you divorce. Without a prenup, you have far less control over the outcome, and the division may not reflect what you consider fair.
Can a Prenuptial Agreement Be Broken?
Yes, a prenuptial agreement can be broken by a court, but this is not common. The court will usually uphold the agreement unless it fails to meet certain criteria. A prenup is most likely to be enforced when:
- Both parties received independent legal advice.
- There was full financial disclosure from both sides.
- The agreement was signed at least 28 days before the wedding.
- The terms are fair and weren’t signed under duress.
- The agreement meets the needs of any children.
This underscores why you should never attempt a prenup without guidance from a specialist family law solicitor. Free premarital agreements or DIY documents found online lack the legal rigour required for court recognition and could leave you completely unprotected.
Prenup Without Lawyer: Why This Is a Costly Mistake
Many couples search for free premarital agreements or consider creating a prenup without a solicitor to save money. This could be a significant mistake that ends up costing you significant amounts in the long run.
The hidden costs of DIY legal documents include:
- Courts are far more likely to set aside agreements that weren’t professionally drafted.
- You may miss crucial clauses that protect your interests.
- The document may contain unenforceable provisions.
- It won’t meet the standard for “independent legal advice” that courts expect.
- Tax implications may be completely overlooked.
The initial cost of professional legal advice is often minimal compared to the potential losses if your agreement were to fail when you need it most.
Married Without Antenuptial Contract: International Considerations
For couples from countries where prenuptial agreements are standard practice, marrying in the UK without one can create confusion. If you’re married without an antenuptial contract and later face divorce proceedings in the UK, your financial settlement will be governed by English law, regardless of your country of origin.
International couples should seek specialist legal advice to ensure their arrangements are recognised across jurisdictions.
Take Control of Your Future
The gap between public belief and legal reality for unmarried couples is a chasm. Relying on outdated myths like “common law marriage” is a recipe for financial and emotional distress when relationships break down.
The solution is proactive, informed legal planning. Whether you’re moving in together, planning to marry, or are navigating a difficult separation, the right legal agreement provides the security and clarity you deserve.
Why Choose Expert Legal Advice?
At WHN Solicitors, we understand the unique challenges unmarried couples face. Our specialist team provides:
- Free Initial Discussion: Understand your rights without financial commitment.
- Fixed Fee Options: Clear pricing with no hidden costs.
- Expert Solicitors: Specialists in cohabitation law, prenuptial agreements, Declarations of Trust, and separation agreements
- Personalised Service: Your case will be handled by qualified solicitors who understand the complex nuances of unmarried couples’ law
Whether you need a cohabitation agreement, Declaration of Trust, prenuptial agreement, or help with a separation agreement unmarried couples can rely on, we’ll guide you through every step with clarity, compassion, and legal expertise.
Do not leave your future to chance. The complications of separation rights and laws for unmarried couples during breakups have a simple, powerful solution: a professionally drafted, bespoke legal agreement tailored to your circumstances.
- Call us For Expert Advice: 01706 232039
- Email: David.Connor@whnsolicitors.co.uk
This article is for informational purposes only and does not constitute legal advice. You should consult with a qualified legal professional for advice on your specific circumstances.
