Separating when you are unmarried with children

More and more couples are choosing to live together before getting married or are choosing not to get married at all. More than half of children born in the UK in 2017 were born to unmarried parents. The increase in the divorce rate as a result of the pandemic has been much publicised, but what happens to couples separating who aren’t married, especially where there are children involved? Rachel Macwilliam, family law solicitor at Penderlaw, answers some common questions on this subject.

Do unmarried couples have any legal protection when separating?
Unfortunately, unmarried couples don’t have the same legal protection as those who are married and have no financial responsibility to each other should they decide to separate, unless there are children involved.

What about common law marriage?
It is a very common myth, but there has been no such thing as common law marriage since the introduction of the Marriage Act in 1753 which required a marriage ceremony. The only way to attain legal protection is to get married or enter a civil partnership. Living together for many years, buying a house, or having a child makes no difference.

Does my ex-partner have to support me financially when we are separated?
No. Unmarried couples do not have any financial liability to each other following the breakdown of their relationship. They are not entitled to spousal maintenance which would apply to a divorcing married couple. However, if you have children, you may be eligible for child maintenance.

Do children automatically remain with their mother if the parents are unmarried?
Unlike mothers, fathers do not automatically have parental responsibility for their children, unless they are married to the mother at the time the child is born or they are named on the birth certificate (if the child was born after 2006). Parents don’t need to be married to add the father’s name on the birth certificate, and the child can have either parent’s surname. Having said that, should the matter go to court, a court will decide purely based on the best interests of the child. For further information about child custody read our blog on the topic.

What happens to the property we bought together once we are separated?
Cohabiting couples have no rights to each other’s property, but if you bought the property together and both your names are on the title deeds, then you need to work out what share of the property value you own. You can find out what kind of joint ownership you have on GOV.UK.
If you can’t agree on how to split the property between you, you may need to go to mediation. If you are unmarried, you can ask the court to decide what happens to your home. The court will usually divide your home’s value between you according to the shares you own.
If your name is not on the title deeds, but you contributed financially to the home, then you might still be able to prove your right to the home, even if you are unmarried. You would need to be able to demonstrate how you have contributed financially to paying for your home.

What is a cohabitation agreement?
To avoid problems like this in the future, it is worth considering a cohabitation agreement should you decide to move in with a partner in the future. Information about cohabitation agreements can be found here.

What if my ex-partner wants to me move out?
Married couples have the right to stay in their home, even if they do not own it or are not named on the tenancy. They can only be forced to leave by the court. Unmarried couples do not have the same protection and your right to stay depends on whether you own the property or are named as a tenant.

Get in touch
If you would like to speak to a member of the family law team at Penderlaw, just call us on 01872 241408 or email