Cohabitation, Children & ‘Common-Law Marriage’

Rachel Harrison and Angharad Bentley of Farleys Solicitors advise on protecting your assets as a cohabiting couple

Cohabitation continues to be the fastest growing family type in the UK, with the Office for National Statistics reporting that the number of couples choosing to live together without getting married or entering a civil partnership, in what is often called a common-law marriage, increased by 137 per cent between 1996 and 2020.

Many people are still however, of the mind that a common-law marriage provides the same rights as legally married couples. It doesn’t. Some couples take the steps to put in place a cohabitation agreement, which sets out what they want to happen if the relationship breaks down. However, many don’t. So, what happens when cohabitees who are not married, but own a property together decide that they need to separate? What legislation is there to protect their property, and any dependent children?

If an unmarried, separating couple own (or one person owns) a property which was shared together, then a claim might be able to be made under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

With TOLATA, there are three main types of application that can be made with the Court having the power to:
• Order a sale of a property, including directions on the practical arrangements for the sale
• Decide who is entitled to occupy
• Decide the nature and extent of how a property is owned by two (or more) people

Essentially, TOLATA permits a Court to decide who are the legal and beneficial owners of a property, and in what proportion. In some cases, you can make a claim even if you are not named on the deeds to the property.

The decision to issue Court proceedings is a last resort, and these types of claims can often be settled outside of Court, but it’s important to get the right legal advice on your side. Proving someone has/or hasn’t got a financial interest in property or land can involve very technical and robust legal arguments, so you need an experienced dispute resolution solicitor on your side to ensure the best result.

We are also seeing a rise in separating unmarried couples who have been badly advised by a solicitor when a property was purchased, in terms of protecting their individual interests. These situations can give rise to a professional negligence claim.

These things understandably get more complex when children are involved. When a relationship between an unmarried couple breaks down it is possible in some cases for an application to be made to the Court in respect of children under Schedule 1 of the Children Act 1989. Schedule 1 claims are often made in tandem with proceedings under TOLATA. Under Schedule 1 the Court can make provision for children under 18 years of age for periodical payments (regular maintenance), secured periodical payments, a lump sum, a settlement or transfer of property during a child’s minority.

Once the children reach majority, unless there are factors that could trigger the end of the arrangement sooner, the property might be sold, with the proceeds of sale being divided in the proportions directed by the Court or as may be agreed between the parties themselves.

For children aged 18 or over, in some limited situations the Court can make periodical payments and/or a lump sum payment, sometimes directly to the child for their benefit.

It’s always a good idea for people who are planning on living together to agree in advance how their financial and property affairs will be resolved should separation occur – however unlikely that may seem at the outset. Whatever stage you are at in your relationship – legal advice at an early stage is the most important step to protect yourself and what matters most to you.

Contact Rachel Harrison (Dispute Resolution) or Angharad Bentley (Family Law) at Farleys on 01254 368040 or visit:

Offices across Lancashire



Tedd Walmsley

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Tedd Walmsley managing director of Live Magazines shares his views on the latest topics in media.

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