A relationship breakdown affects many people during their lives, whether they are married or not, but there are some key differences to be aware of.

There are common misconceptions regarding the differing positions of individuals who are married and unmarried, and the rights they may have in relation to property and finances following a separation. This article looks at some of those differences and dispels a few common myths.

Is common law marriage the same as marriage?

No – ‘Common Law Marriage’ is a myth and doesn’t exist in England and Wales.

Regardless of the length of cohabitation, an unmarried partner will not have the same rights as a spouse or civil partner. The best way to ensure your position as an unmarried partner is protected is by entering into a Cohabitation Agreement.

The house is registered in my former partner’s sole name – am I entitled to any of it?

Married couples going through relationship breakdown

If you are married, both parties’ assets are divided to meet the needs of the couple and this includes properties owned by one spouse/civil partner in their sole name.

If your spouse solely own property you should register a Home Rights Notice (if it is your marital home) or a Unilateral Notice against the title for the other sole property which flags to third parties that there is a spouse/civil partner with a claim in respect of it. This makes it very difficult for the owner to dispose of any part of their interest in the property so that it is preserved until the financial issues arising out of the divorce/dissolution are formally resolved.

Unmarried couples going through relationship breakdown

If you are unmarried, the legal presumption is that the person in whose name the property is registered is entitled to the entirety of the equity in it. This presumption can however be rebutted and the non-owner can pursue a claim for a share in the equity. Further information on these claims can be found here.

They have a large pension – am I entitled to share this?

Married couples going through relationship breakdown

If you are married, pensions are often a valuable element of the assets in a divorce/dissolution and there is an entitlement to share it, certainly to the extent it was accrued during the relationship. There are several ways pensions can be dealt with:

  • Pension Sharing Orders – where a percentage of one spouse’s pension is carved off and transferred into the other spouse’s name for them to draw benefits from at retirement age;
  • Offsetting – where one person exchanges their claim against the other’s pension provision to receive more of the available capital now; and
  • Pension Attachment Orders – these are a rare way to share the income or lump sum from a pension between spouses.

Unmarried couples going through relationship breakdown

If you are unmarried, one partner does not have an automatic entitlement to share the pension assets of the other. There can be some exceptions if both parties have paid into a pension scheme in a sole name, however unlike married couples, there is no presumption of financial equality.

There is a significant income disparity between us – am I entitled to maintenance?

Married couples going through relationship breakdown

If you are married, where one party cannot afford to meet their reasonable outgoings after maximising their own earning capacity and the other person has sufficient income (after paying for their own reasonable outgoings) to meet that earning capacity shortfall, it is possible that this surplus income may be used to “top up” the other spouse’s income for so long as necessary.

Unmarried couples going through relationship breakdown

If you are unmarried you have no right to receive (or to pay) a maintenance to your partner on relationship breakdown. There are however claims available to you in respect of the children, which are covered further in this article.

An income disparity may however become relevant where it has impacted how household finances and the payment of the mortgage and utilities are managed.

This article was co-written by Holly Bryan, who specialises in unmarried separation and cohabitation, and Kirsten Sibley, who specialises in marital/civil partnership breakdowns and financial provision for children. For further advice please get in touch with our team.