You and Your Unmarried Partner Are Separating
Unlike married couples, cohabitees have no automatic financial claims against each other on separation. Property disputes are resolved under the Trusts of Land and Appointment of Trustees Act 1996, and financial provision for children may be sought under Schedule 1 to the Children Act 1989.
Quick Answer
There is no 'common law marriage' in England and Wales. On separation, cohabitees must rely on property law (TOLATA 1996) to resolve disputes over jointly or solely owned property. Financial claims for children can be made under Schedule 1 to the Children Act 1989. Unlike divorce, there is no general right to share each other's assets.
Full Explanation
The myth of the 'common law marriage' persists widely in England and Wales, but cohabitees have none of the automatic financial protections available to married couples or civil partners on relationship breakdown. There is no statutory scheme equivalent to the Matrimonial Causes Act 1973 for cohabitees.
Where property is jointly owned in law, it is presumed to be held in equal beneficial shares unless there is evidence to the contrary โ a declaration of trust, conduct, or contributions that establish a different common intention. Where property is in one partner's sole name, the other may claim a beneficial interest by establishing either an express trust (a written declaration) or a constructive trust (a common intention that they would share the property and that they acted to their detriment in reliance on that intention โ see Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53).
Disputes about occupation or sale of property can be resolved by an application under Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) s.14. The court has a discretion to make a wide range of orders, including orders for sale, orders specifying each party's share, and orders regulating occupation. The court considers the factors in TOLATA s.15, including the purposes for which the trust was created and the welfare of any children occupying the property.
Where the separating couple have children under 18 (or in full-time education up to 21), the financially weaker party may apply under Schedule 1 to the Children Act 1989 for periodical payments, a lump sum, or a settlement of property for the benefit of the children. Schedule 1 orders are for the children's benefit and not the parent's personal benefit โ any settlement of the family home will typically revert to the legal owner when the youngest child reaches 18 or finishes education.
Cohabitees should take legal advice early, since their position is very different from that of divorcing spouses. In the meantime, both parties should preserve evidence of contributions made to the property โ mortgage payments, renovation costs, deposit contributions โ as this is central to any TOLATA claim.
Legal Basis
- ยงTrusts of Land and Appointment of Trustees Act 1996 s.14 โ application for order relating to trust property
- ยงTrusts of Land and Appointment of Trustees Act 1996 s.15 โ matters to which court must have regard
- ยงChildren Act 1989 Schedule 1 โ financial provision for children of unmarried parents
- ยงStack v Dowden [2007] UKHL 17 โ beneficial interests in jointly owned property
- ยงJones v Kernott [2011] UKSC 53 โ constructive trust and imputed intention
What To Do
List All Assets and Document Each Party's Contributions
Set out who owns what, how property was acquired, what each party contributed financially and otherwise (deposit, mortgage payments, renovation work, childcare). This financial picture is the foundation of any TOLATA claim or negotiated settlement.
Seek Specialist Cohabitation Law Advice
Instruct a family or property solicitor with experience in cohabitation disputes. The law is complex and fact-specific. A solicitor can advise on your beneficial interest in any property, your prospects in TOLATA proceedings, and any Schedule 1 claims for the children.
Consider Mediation for Property Disputes
Cohabitation disputes can be resolved through mediation, which is usually faster and cheaper than litigation. A mediator experienced in financial disputes can help you negotiate an agreed division of assets, which can then be recorded in a legally binding deed or consent order.
Issue a TOLATA Claim If Dispute Cannot Be Resolved
If agreement cannot be reached about property, issue a claim in the County Court or High Court under TOLATA 1996 s.14. You will need to set out your claim to a beneficial interest and the order you are seeking (sale, declaration of shares, or occupation order).
Apply Under Schedule 1 Children Act 1989 for Child-Related Financial Orders
If you have children under 18, apply to the Family Court for financial provision under Schedule 1. Common orders include periodical payments (child maintenance top-up where CMS is not applicable), lump sums, and settlement of property. Schedule 1 applications are separate from any TOLATA claim.
Important Deadlines
Important Warnings
There is no 'common law marriage' in English law. Without a declaration of trust or evidence of a constructive trust, a cohabitee whose name is not on the title deeds may have no claim to the property at all.
Claims under TOLATA are governed by the Limitation Act 1980 โ act promptly to avoid a limitation defence being raised.
Schedule 1 Children Act 1989 orders are for the benefit of the children and not the parent. Any property settlement typically reverts to the legal owner when the youngest child turns 18.
Frequently asked questions
- Do I have automatic financial rights if I separate from my unmarried partner?
- No, there is no 'common law marriage' in England and Wales. Unlike married couples or civil partners, cohabitees have no automatic financial claims against each other upon separation. There is no statutory scheme equivalent to the Matrimonial Causes Act 1973 for cohabitees, meaning you cannot simply share assets based on the length of the relationship.
- Can I claim a share of the house if it is only in my partner's name?
- If property is in one partner's sole name, the other may claim a beneficial interest by establishing an express trust (a written declaration) or a constructive trust. A constructive trust requires evidence of a common intention to share the property and that the claimant acted to their detriment in reliance on that intention. Without such evidence, a cohabitee whose name is not on the title deeds may have no claim.
- How is jointly owned property divided when an unmarried couple separates?
- If the property is jointly owned in law, it is presumed to be held in equal beneficial shares unless there is evidence to the contrary. Evidence such as a declaration of trust, specific conduct, or financial contributions can establish a different common intention regarding the shares. This presumption helps resolve disputes over how the property is divided between the partners.
- Can I get financial support for my children if I am not married to their other parent?
- Yes, if you have children under 18 (or in full-time education up to 21), the financially weaker party may apply under Schedule 1 to the Children Act 1989. This can result in periodical payments, a lump sum, or a settlement of property for the children's benefit. These orders are separate from property disputes and are specifically for the children, not the parent's personal benefit.
- What evidence should I keep if I am separating from my unmarried partner?
- You should preserve evidence of all contributions made to the property, including mortgage payments, renovation costs, and deposit contributions. This financial picture is central to any claim under the Trusts of Land and Appointment of Trustees Act 1996. Additionally, you should seek specialist legal advice early, as cohabitation law is complex and fact-specific, and your position differs significantly from that of divorcing spouses.