In England and Wales, the number of couples choosing not to marry has been steadily increasing year on year. Marriage is obviously not for everyone, however there are many misconceptions regarding the rights of couples in unmarried relationships, specifically pertaining to property, finances and children.
In this blog, we will provide a clear understanding of the legal position for couples living together without being married.
Common law marriage is a myth
‘Common law marriage’ is one of the most widespread myths around cohabitation in England and Wales. The idea of common law marriage is that couples that have cohabited for a long time will gain the same legal rights as married couples; this is simply not true.
Regardless of how long unmarried couples have lived together, they will never have the same legal rights as a married couple, or those in a civil partnership.
Property rights and home ownership
Rights surrounding property and home ownership are often misunderstood. If you are living in a property that is in your partner’s sole name, you do not automatically have a beneficial interest in that property, unless you have made clear financial contributions (like paying towards household bills or renovations), or if there is a Declaration of Trust that clearly stipulates your entitlements.
This point is proven most clearly in the case of Burns v Burns (1984), where an unmarried couple lived together for 18 years in a property owned solely by Mr Burns. After they separated, Mrs Burns was shocked to discover that she did not have an interest in the property.
You can avoid the situation that Mrs Burns found herself in by creating a formal agreement, like a Declaration of Trust or a Cohabitation Agreement, which we will cover in detail below.
Maintenance and financial claims
In England and Wales, unmarried cohabitants have no right to claim maintenance from their ex-partner (save for child maintenance) upon separation, regardless of how large the financial discrepancy is between the pair’s earnings.
This point reinforces the importance of securing some form of agreement with your partner to ensure you are not left in a bad position in the event of a separation.
Children
Under the Children Act 1989, both parents have a legal duty to support their children financially, whether they are married or not. Parental responsibility however is not automatically granted for unmarried fathers. In the jurisdiction of England and Wales, an unmarried father is only automatically granted parental responsibility if he is named on the birth certificate. Fathers can also obtain parental responsibility by signing a ‘parental responsibility agreement’ with the mother or by obtaining a Court Order.
You can read more about parental responsibility and how to obtain it, here: https://wendyhopkins.co.uk/parental-responsibility-what-it-covers-and-how-to-obtain-it/
When unmarried couples separate, it is possible to agree on child arrangements between one another. However, in situations where the relationship has completely broken down or an agreement cannot be reached, either parent can apply to the Court for a Child Arrangements Order.
A Child Arrangements Order is a legally binding agreement that sets out when and how each parent will have contact with the child(ren).
Protect yourself and secure your future
Marriage is not for everyone, and it is not uncommon for couples to remain in a lifelong committed relationship without ever walking down the aisle. It is however wise to explore how you can protect yourself and your interests, should you and your partner separate.
Cohabitation Agreements
Cohabitation Agreements have exploded in popularity over recent years, and for good reason. These agreements allow unmarried couples to clearly set out arrangements for important issues, like:
Property – clarifying ownership of property like your home or vehicles.
Finances – specifying how finances are to be managed during the relationship (i.e. contributions to household bills, joint bank accounts and responsibilities for debts).
Separation – state the entitlements to property and finances post-separation and the plan for child arrangements.
Cohabitation Agreements, when correctly drafted and executed as a deed, are (usually) legally binding. This means whatever terms you set out in the agreement will be upheld by the Court if they are disputed by your ex in the event of separation. It should be noted that, similar to Pre-Nuptial Agreements, these agreements are not automatically legally binding, however the Court will usually uphold them if they were entered into freely and with full financial disclosure.
This is the most air-tight form of agreement available for unmarried couples in England and Wales, and something we recommend to our clients regularly.
You can find out more about Cohabitation Agreements here: https://wendyhopkins.co.uk/services/cohabitation-agreements/
Declarations of Trust
A Declaration of Trust is similar to a Cohabitation Agreement; however, it only applies to property. This document outlines how and by who a property is owned, when purchased by two or more people. A Declaration of Trust clarifies the financial contribution of each party towards the purchase price, mortgage payments and any ongoing costs.
Should you and your partner separate, this document will specify how proceeds are to be split; especially important given the lack of automatic property rights for unmarried couples, as we discussed earlier.
Having a Declaration of Trust or a Cohabitation Agreement in place helps to avoid disputes and ensures that each person’s interest is legally protected. This way, couples can separate without the added stress and acrimony a property dispute can bring.
Should you require advice on a Cohabitation Agreement, Declaration of Trust or anything else we mentioned in this piece, please do not hesitate to contact us. We are a specialist family law firm with decades of experience assisting clients just like you.
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Published: 06.08.25