Unpopping the question: key differences for married and unmarried couples

‘Do you think – after we’ve dried off, after we’ve spent lots more time together – you might agree not to marry me? And do you think not being married to me might maybe be something you could consider doing for the rest of your life?’ – Charles, Four Weddings and a Funeral

It is an unfortunate reality that relationships between couples can break down. As well as being emotionally difficult, separating can raise complex legal questions – especially when it comes to dividing assets acquired during the relationship. The recent consultation on cohabitation law reform has brought this into sharp relief.

It is a common misconception in England and Wales that unmarried couples have similar rights to married ones when they separate. In fact, unlike in other jurisdictions, there is no such thing as a ‘common law marriage’. For a deep dive into the position on cohabitation in England and Wales and the current state of cohabitation rights around the world, read our International Family Law Report, here.

Regardless of how long the couple have been together, or how financially intertwined their lives are, the legal position for unmarried couples, particularly those without children, is starkly different from that of married ones. The family law community has long called for reform in this area and, on 5 June, the government finally launched its consultation on the rights of cohabiting couples, shifting the debate from whether reform is needed to what form that reform should take.

This short piece provides an overview of the law as it stands now.

Married couples: legal protections on divorce

The court’s powers when a married couple divorce are governed by the Matrimonial Causes Act 1973, which gives the courts wide ranging powers to redistribute assets and award financial support. This can include

• maintenance payments (ongoing financial support);
• lump sum awards;
• transfer or settlement of property, regardless of legal ownership;
• pension sharing, attachment and offsetting orders (to ensure fair division of pension assets).

Unmarried couples (without children): limited legal remedies

Unmarried couples, on the other hand, have no such legal protections. When cohabitees separate, there is no right to financial support if the couple do not have children, and no entitlement to share in assets unless a legal or beneficial interest can be established. .

The parties’ respective rights to property are governed by property and trust law, primarily under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The key considerations are:

• Legal ownership: if the property is in one partner’s name, the other must prove that they have a beneficial interest in it – typically, through a trust claim.
• Tenants in common: If the couple own the property as tenants in common, respective shares are usually declared at the time of purchase, in a declaration of trust or on the transfer form (TR1) itself. If not, a TOLATA claim may be needed to establish respective interests.
• Joint tenants: if the property is owned as joint tenants, ownership is presumed to be 50:50, unless there is clear evidence of an intention to the contrary at the time of purchase or subsequently.

Unmarried couples cannot claim maintenance from each other, regardless of financial disparity. This means that if one partner earns considerably less than the other, they will not be able to make claims upon the other partner’s income to maintain their standard of living post-separation. Married couples may do so, as may parents on behalf of their children. Similarly, there are no claims for pension sharing between cohabiting partners.

Children: a legal game-changer

The situation changes considerably when children are involved. Regardless of marital status, both parents have a duty to support their children financially, and the court endeavours to minimise disruption to the child’s life following separation. Key mechanisms include:

• Child maintenance: this is typically arranged and enforced through the Child Maintenance Service – the court retains jurisdiction to make child maintenance orders in some limited circumstances.
• Children Act 1989: this governs disputes over child arrangements and financial provision.

Where one parent earns substantially less than the other, the court may well award them capital, property and/ or maintenance for the benefit of the child to ensure that the child’s home and lifestyle with both parents are of a similar financial standard. Legally, such awards are made on behalf of the child rather than the financially weaker parent, and maintenance payments typically stop when the child reaches 18 or 21 years old, depending on circumstances. At that point, any property held for the child’s benefit usually reverts to the legal owner (ie the financially stronger parent).

While the law remains unequal, cohabiting couples can take proactive steps to protect themselves, provide clarity and reduce the risks of costly disputes:

• Cohabitation agreements: these set out what the financial arrangements would look like in the event of separation.
• Declarations of trust: these clarify shares in jointly owned property.

Conclusion: the legal divide

Despite protracted lobbying for reform, the different legal protections for married and unmarried couples remains stark. Married couples benefit from a comprehensive legal framework upon divorce that prioritises fairness. Unmarried partners must rely on property and trust law, which often leads to less predictable, and far less generous, outcomes.

Though marriage may not align with everyone’s values or circumstances, the legal safeguards it provides can be critical — and should be factored into any long-term planning. Popping the question is a big decision, but it is equally important to understand the legal consequences should you decide not to.

This article was written by trainee solicitor, Ted Hicks.