Family Law

In the first of a three-part series, the legal rights of unmarried couples are analysed in relation to benefits and inheritance. Emily Brand, partner at Boodle Hatfield, considers the ‘archaic’ nature of the law, and the Supreme Court’s decision to award an unmarried woman access to bereavement allowance after the death of her partner.

What rights are currently unavailable to unmarried couples, which are available to spouses and civil partners?

Unlike civil partnerships, none of the rights available to married couples are available by default to unmarried couples, regardless of the length of the relationship and any periods of cohabitation. The ‘common law marriage’ is a myth—unmarried couples do not benefit from the various protections offered by the family courts. At best, they will have claims for maintenance and capital for children (but only during their dependency), and possible claims under the Law of Property Act 1925 if they own property.

In broad terms, married couples will be treated automatically as a family unit. This means that spouses can seek to share in their partners’ pensions and life insurance policies and be provided for upon the death of their partner. Divorcing spouses can be assured of ‘fair’ financial provision being made for them by way of the Matrimonial Causes Act 1973 (MCA 1973), with the usual starting point being that both parties have a 50% interest in the former matrimonial home regardless of whose name is on the title deeds.

In addition, all other assets owned by either party to the marriage are available to be redistributed between the former couple depending on the discretion of a judge seeking to achieve fairness between the parties. The judge will take into account their specific circumstances including (but not limited to) the length of the marriage, their respective ages and their needs.

By contrast, the legal approach to unmarried couples is far less cohesive, and the position of an unmarried partner can be highly precarious in comparison to their married equivalent. There is essentially a much more ‘business-like’ approach taken by the courts to unmarried couples and their families. The financial arrangements after the separation of unmarried couples are dealt with on an ‘issue by issue’ basis.

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Interviewed by Samantha Gilbert.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.