Many couples choose to cohabit for years, buy homes together, raise children and combine their finances without ever formalising their relationship through marriage or a civil partnership. While this arrangement may suit their personal circumstances, it is important to understand that the legal position of unmarried couples differs significantly from that of married spouses and civil partners.

One of the most common misconceptions is the belief that there is such a thing as a “common law marriage”. Despite how widely the phrase is used, there is no legal status known as a common law spouse in England and Wales. Simply living together for a long period does not automatically give either partner the same financial rights that married couples enjoy if the relationship ends.

As a result, unmarried couples should consider taking practical legal steps to protect themselves financially. Doing so can provide certainty, reduce the likelihood of disputes, and ensure that each person’s intentions are properly recorded should circumstances change in the future.

The difference between married and unmarried couples

When a married couple or civil partners separate, the family court has broad powers under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to redistribute assets fairly. The court can consider factors such as the parties’ needs, contributions, earning capacity, and the welfare of any children before making financial orders.

Unmarried couples do not benefit from this legal framework. Instead, disputes are usually determined using principles of property law and trust law rather than family law. This means that ownership of assets, particularly property, often depends upon legal title, documentary evidence and the parties’ intentions rather than what may appear fair overall.

For example, one partner may have spent years contributing towards household bills, renovations, or mortgage payments without actually acquiring a legal interest in the property. If their name is not recorded as an owner and there is no written agreement setting out their entitlement, establishing a financial interest can become complicated, expensive, and uncertain.

This difference often comes as a surprise to separating couples who assumed their long-term relationship would provide them with similar protections to those enjoyed by married couples.

Cohabitation agreements can provide greater certainty

One of the most effective ways for unmarried couples to protect themselves is through a cohabitation agreement. This is a written contract entered into by partners who live together or intend to live together.

Although every agreement is tailored to the couple’s circumstances, it typically deals with the following financial matters, including:

  • How household expenses will be shared
  • Ownership of savings and investments
  • Responsibility for mortgage repayments and other debts
  • What happens if one partner pays significantly more towards the property
  • Arrangements if the relationship ends

A properly drafted agreement provides clarity from the outset and can significantly reduce disputes if the relationship later breaks down. While the courts will consider the circumstances of each case, agreements that have been entered into freely, with independent legal advice and full financial disclosure, are more likely to be enforced.

Entering into a cohabitation agreement encourages couples to have open conversations about finances before disagreements arise. Addressing these issues early can avoid uncertainty later.

Recording property ownership correctly

Buying a home together is often the largest financial commitment a couple will make, so ensuring that ownership is recorded correctly is essential. Where both partners purchase a property together, they can generally choose to own it either as joint tenants or as tenants in common.

Joint tenants each own the whole property together. If one owner dies, their interest automatically passes to the surviving owner regardless of what their will says.

Tenants in common each own a separate share of the property. Those shares may be equal or unequal depending upon the contributions made by each person. Unlike joint tenancy, an owner’s share passes under their will or the rules of intestacy rather than automatically transferring to the surviving co-owner.

Selecting the appropriate form of ownership should reflect the couple’s intentions and financial circumstances. Simply choosing the default option without considering the legal consequences can create difficulties later.

Should couples consider a declaration of trust?

A declaration of trust is a legally binding document that records each person’s financial interest in the property. It can specify precisely how ownership is divided and explain how sale proceeds should be distributed if the property is sold.

For example, one partner may contribute a significantly larger deposit while both contribute equally towards the mortgage thereafter. Alternatively, one partner may pay for substantial renovation works or fund later improvements that increase the property’s value.

Without a declaration of trust, proving these intentions years later may become extremely difficult, particularly if memories differ or documentary evidence is limited.

A carefully prepared declaration of trust provides certainty by recording the parties’ agreement at the time the property is purchased or when contributions change.

Documenting loans between partners

Many couples lend each other money during their relationship, but problems often arise because these arrangements are informal. A common issue is when one partner believes the money was intended as a loan, while the other assumes it was a gift. Drafting a written loan agreement can avoid considerable uncertainty in the future.

The agreement should record:

  • The amount being lent
  • Whether interest is payable
  • When repayment is expected
  • What happens if the relationship ends before repayment

Having these terms clearly documented reduces the scope for disagreement and may make enforcement significantly easier if repayment later becomes an issue.

The importance of making a will

Unlike married couples and civil partners, unmarried partners do not automatically inherit from one another if one dies without leaving a valid will. This can create serious financial difficulties, particularly where the surviving partner lives in a property owned solely by the deceased or relies upon shared assets.

Preparing an up-to-date will allows each partner to decide who should inherit their estate and can provide significantly greater security for the surviving partner.

Couples may also wish to consider lasting powers of attorney so that decisions can be made if one partner loses mental capacity.

What happens if there are no legal agreements?

When unmarried couples separate with no legal agreements in place, resolving financial issues can become considerably more complicated.

Property disputes often depend upon detailed factual evidence concerning ownership, financial contributions, and the parties’ intentions throughout the relationship. The court cannot simply redistribute assets because one outcome appears fair. Instead, it must apply legal principles relating to ownership and trusts.

This can lead to outcomes that one or both parties perceive as unfair, particularly where one person has made indirect contributions such as paying household expenses while the other accumulated equity through property ownership.

Taking preventative legal advice before disputes arise is usually far less costly than attempting to resolve disagreements after separation.

When should legal advice be sought?

Many people assume legal advice is only necessary once problems develop. In reality, obtaining advice at an early stage often provides the greatest protection.

Legal advice should be considered before:

  • Purchasing property together
  • Moving into a property already owned by one partner
  • Making unequal contributions towards a property purchase
  • Lending substantial sums of money to a partner
  • Entering into long-term cohabitation arrangements

Legal advice may also be appropriate if circumstances change during the relationship, such as one partner funding major renovations, paying off the mortgage alone, or receiving significant assets.

Every relationship is different, and the most appropriate legal protection will depend upon each couple’s individual circumstances. Documents prepared at the beginning of a relationship can often be updated if circumstances later change.

If you would like advice on financial protection for unmarried couples, including cohabitation agreements, declarations of trust, property ownership or your legal rights following the breakdown of a relationship, please contact our team today. We will be happy to provide clear, practical advice tailored to your individual circumstances.

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Co–Habitation Scenario

The scenario below does not relate to any individual clients of ours but the facts and the outcomes relate to some similar experiences in our practice.

The Scenario

Mr R separated from his partner of 10 years with whom he had a five year old son. Their apartment was in her name. This came about because he was working abroad when they began their relationship. He paid half the purchase price into his partner's account and she completed the purchase paying the other half. Now she had the property up for sale.

Our Solution

We took detailed instructions and put a block on the title. We then located the evidence to prove his claim. He offered to buy out his partner but she then insisted the apartment was worth more than the price she had been offering it for sale. We issued an application following which the property was professionally valued and Mr R bought the remaining half share. She then refused to let Mr R see their son. We obtained a declaration of parental responsibility and visiting rights for Mr R.

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About The Team

We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

Partner

Philip Morton

Recommended by The Legal 500, Philip is an expert in all areas of family law, including domestic and international financial disputes, fraud and commercial dispute resolution.

Partner

Henry Brookman

With over 45 years' experience, Henry Brookman is the senior member of the team. He is described by The Legal 500 as ‘shrewd, savvy, sagacious and highly experienced’.

Partner

Natasha Slabas

Expert in all areas of family law, often involving cases that have an international element, including work in relation to financial settlements following divorce.

Partner

Mark Rennie

Mark is the Group Head of the Horsham Family Law team. He specialises in all areas of matrimonial law, including complex divorce and financial disputes, and is recommended by The Legal 500.

Partner

Nigel Winter

A highly experienced solicitor, Nigel has expertise in collaborative law, divorce, contested litigation, relationship agreements, and children matters. Nigel is recommended by The Legal 500.

Partner

Samantha Jago

Partner at our Guildford office and recommended by The Legal 500, Samantha has specialist expertise in divorce, children matters, complex international cases, and is a trained mediator.

Partner

Joanna Potbury

Family law specialist based in Brighton advising on divorce, cohabitation agreements, children, post-nuptial agreements, and domestic violence. Joanna is recommended by The Legal 500.

Partner

Kevin Danagher

Kevin specialises exclusively in family law, advising on all aspects of relationship breakdown, divorce, same sex marriage, marital agreements, and international family cases.

Partner

Ella Welsby

Known for her sensitivity and discretion combined with significant expertise, Ella advises on all family issues including high-value and multi-jurisdiction divorce and complex financial and children matters.

Partner

Gemma Garrett

Based in Horsham, Gemma is a specialist advising on all areas of family law including divorce and separation (often involving jurisdiction issues), complex financial matters, and children matters.

Partner

Alicia Cenizo

Alicia is a Partner in the family team and advises on all elements of family law, particularly private children work, including matters with an international element such as relocation.

Partner

Rachel Osgood

Rachel specialises in financial claims on divorce and separation with a particular emphasis on high value cases and those involving inheritances, family businesses and claims by adult children.

Partner

Nisha Tayal

With over 20 years of expertise in family law, Nisha specialises on all aspects of relationship breakdown and is trusted by clients for her discreet, tailored advice.

Family Director (filex)

Natalie Matthews Bunting

Natalie is a specialist in divorce and financial remedy, including high value cases involving multiple pensions, multiple properties and multiple businesses.

Senior Associate

Lauren Blythe

Lauren is a highly regarded specialist family law solicitor, based at our Guildford office. She advises on divorce, family finances, children matters, domestic abuse, cohabitee issues, and relationship agreements.

Senior Solicitor

Susan Hayes

Susan qualified as a solicitor in 1992 and is based at our Brighton office. She is a longstanding member of the Law Society Specialist Children Panel and Family Law Panel. Susan is also a trained Collaborative Lawyer.

Associate

Rachael Au

Rachael is a highly capable member of the family team in Brighton. She specialises in family law, advising on divorce, civil partnerships, financial matters, and children issues.

Associate

Alice Barrett

Alice advises and supports clients on a range of family law matters including divorce, separation, financial remedy, private children matters and emergency applications.

Associate

Amelia Groom

Amelia has experience across a full range of family matters, including divorce, complex disputes regarding finances that range from trusts through to cryptocurrencies, and arrangements for children.

Associate

Natalie Higham

Natalie is a Family Legal Executive who advises individuals on divorce, separation, financial remedies available to them on the breakdown of their relationship, and children matters.

Associate

Katie O'Kelly

Katie advises on a wide range of family law matters including co-habitation, divorce and separation, financial remedies, and private children law matters.

Solicitor

Sophie John

An experienced solicitor, Sophie advises on matters relating to divorce, financial separation in both marriages and cohabiting relationships and children arrangements.

Solicitor

Alex Robinson

Alex supports the family team on a variety of matrimonial and Children Act matters that are often complex and with an international element.

Paralegal

Michelle Davies

Part of the Family Law team, Michelle supports on a variety of cases involving divorce, finances, children matters and day to day enquiries.

Paralegal

Isabelle Basson

Isabelle is responsible for following up day-to-day enquiries, administrative case management and generally supporting the Family team fee-earners.

Paralegal

Amelia Mahraj

Amelia is responsible, in her current role, for dealing with day-to day enquiries, administrative duties and supporting fee earners.

Paralegal

Aimee Atalay

Aimee provides dedicated support to the Family and Contentious Probate teams across a diverse range of matters. Aimee studied Law and Criminology at the University of Kent.

Paralegal

Izzy Minor

Izzy Minor is a Paralegal in the Family Team, supporting fee earners, and is a qualified Advanced CILEx Paralegal (MCILEx), holding a Diploma in Law and Practice.

Paralegal

Madison Bryant-Pollins

Madison provides dedicated support to the Family and Contentious Probate teams, including case management and the provision of clear, empathetic assistance to clients.

Secretary

Victoria Delatouche

Victoria is a highly experienced Legal Secretary and a long-standing member of the team. She provides secretarial support for the office.

Secretary

Michelle Louison

Michelle provides secretarial support to Henry Brookman. A very experienced family law secretary, Michelle has worked in law for over 12 years.

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