With the number of marriages and civil partnerships dwindling over recent years, there has been a steady increase in the amount of children being born to unmarried couples. In 2021, and again in 2022, births taking place outside of marriage outnumbered those within marriages – 51% to 49%. This shift is notable when you consider the statistics from 2003, where the situation was almost reversed – 59% births within marriage, 41% born outside of it.
With the number of marriages and civil partnerships dwindling over recent years, there has been a steady increase in the amount of children being born to unmarried couples. In 2021, and again in 2022, births taking place outside of marriage outnumbered those within marriages – 51% to 49%. This shift is notable when you consider the statistics from 2003, where the situation was almost reversed – 59% births within marriage, 41% born outside of it.
If you are experiencing issues with your relationship and you feel you need legal advice to resolve matters, contact specialist family solicitor Maria Coster of Stowe Family Law. Maria has an excellent record in family law matters as well as being involved in a number of complex cases involving issues such as domestic violence, substance misuse, and parental alienation.
Whatever the reasons for this change, it is important to understand that having children without getting married comes with specific legal implications for the parents. In this article, we discuss some of the key issues.
Busting a myth
It is extremely common for cohabiting couples to believe they are in a common law marriage. This is not the case, and has not been so since the introduction of the Marriage Act in 1753 which required a marriage ceremony to take place. Living together for many years, buying a house, or having a child together makes no difference, and your protections are extremely limited.
Parental Responsibility
Parental responsibility confers on a parent the right to make certain decisions regarding their child’s welfare and upbringing. This can include, but is not limited to:
- Providing a home and deciding where the child will live
- Protecting and maintaining the child
- Choosing and registering the child’s name
- Choosing the child’s school and/or religion
- Deciding on a child’s medical treatment
- Disciplining the child
Mothers are automatically granted parental responsibility as soon as the child is born. Their partner, on the other hand, only acquires automatic parental responsibility if they are married to the child’s mother. Therefore, if you have a child outside of marriage, the partner will need to be named on the child’s birth certificate to gain parental responsibility. Failing that, they would need to enter into a parental responsibility agreement or obtain an order from the court, conferring this on them at a later date.
Family home
Regardless of the length of cohabitation, the rights available to married couples when they separate are not available to those who are unmarried. This can lead to issues over what happens to jointly or individually owned property when you separate, especially when children are involved.
Schedule 1 Children Act 1989 applications can be made to ensure that children of unmarried couples are not financially disadvantaged by a separation. If a claim is made, the court can step in to address any financial needs of the children. Depending on the circumstances, schedule 1 claims could also be made to meet the housing needs of the child.
If you own the family home jointly and both names are on the title deeds, then you need to work out what share of the property value you own. If you own the property as “joint tenants” then you will each own half the property, which would therefore be split on a 50:50 basis. If the property was held as “tenants in common” in unequal shares, such as 40:60, then the sale proceeds will be shared in that way.
If you cannot agree how to divide the property, then you may need to go to mediation. You can also ask the court to decide what happens to your home, but it will usually divide the value according to the shares you own. If your name is not on the title deeds, but you contributed financially, you could still demonstrate you have a right to the home, even if you are unmarried. Although you would need to demonstrate how you have contributed financially or acted to your detriment in some other way.
If your ex-partner wants you to move out, unmarried couples do not have the same protection as their married counterparts, so your rights to stay in the property largely depends on whether you own it or are named on the tenancy agreement.
Financial matters
From a financial perspective, there are vast differences between being married and living with someone. Unfortunately, as stated above, unmarried couples do not have the same legal protection as those who are married and have no financial responsibility towards each other when they separate, unless there are children involved.
If you are married to your child’s parent and separate, there are a host of orders the court can make, including transferring property, lump sum orders, pension sharing, and spousal maintenance. This is not the case if you are merely cohabiting, no matter the length of the relationship. Legal challenges would be restricted to claims with regard to property under Trust of Land and Appointment of Trustees Act 1989, but those must be justified on the basis of the child’s needs.
This may lead to unfair situations where one party is effectively left with nothing when the relationship ends, struggling to re-home and meet the needs of themselves and their children. That is, despite having been with their partner for many years and giving up their career to care for the children, negatively affecting their ability to earn, not forgetting capital and pension provision.
Wills and inheritance
Wills are incredibly important if you have children. For unmarried parents, the situation can be particularly complex and have a range of potential implications. If you and your partner are not married and there is no valid will in place, you will not be an automatic beneficiary of each other’s estate. Instead, the estate will be distributed according to the rules of intestacy, which can create several issues, especially if you have children.
In these situations, the child will inherit everything the deceased parent owned (or shared equally if there is more than one child). In such a scenario, parents may be forced to bring a claim against their own children and/or family members for financial provision.
What can I do to reduce the risks?
As the law stands, the only solution for cohabiting couples who want legal protection is either to marry, enter a civil partnership, or draw up a cohabitation agreement. A cohabitation agreement sets out who owns what, in what shares, and clarifies how you will split your property, its contents, personal belongings, savings, and any other assets if your relationship breaks down.
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