There is no such thing as common law marriage in England and Wales. However long you have lived together, an unmarried partner has no claim to the other's income, savings or pension on separation: no financial settlement, no spousal maintenance, no pension sharing. The law that applies is property law under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and, where there are children, Schedule 1 of the Children Act 1989. Everything in this guide is about the law of England and Wales; Scotland gives cohabitants materially different rights.
This guide covers both sides of the line: what unmarried couples can and cannot claim, the agreements that fill the gap, and how separation agreements work for married couples who have split but are not yet ready to divorce. If you are in that married group, it pays to know what a court would consider fair before you sign anything: the settlement range estimator gives you a realistic bracket for your circumstances, so a separation agreement records a deal you would still defend in front of a judge.
The common law marriage myth: why there is no divorce for cohabitants
Cohabiting couples are the fastest growing family type in the UK, as the ONS families and households data shows, yet surveys consistently find that a large share of cohabitants believe they acquire marriage-like rights over time. They do not. The financial remedies that divorcing spouses rely on, needs-based division of assets, spousal maintenance, pension sharing orders, exist only inside divorce or dissolution proceedings. End a 20-year cohabiting relationship and the court has no power to redistribute anything based on fairness or need between the adults.
What survives are two narrower routes: a claim about ownership of property, and claims made for the benefit of children. Both are covered below, and both are weaker, slower and less predictable than the financial settlement framework married couples use.
TOLATA claims: how unmarried couples fight over the family home
For cohabitants, the family home is decided by trust law, not family law. Under TOLATA a court can declare who owns what share of a property and order a sale, but it cannot adjust the shares to reflect needs, contributions to family life or the length of the relationship. The questions are technical:
- Joint names: you each keep the share recorded on the title or in any declaration of trust. If nothing was recorded, equal shares are the starting presumption, rebuttable by evidence of a different common intention.
- Sole name: the non-owner starts with nothing and must prove a beneficial interest, typically by showing an agreement or understanding about ownership plus reliance on it, or direct financial contributions to the purchase or mortgage.
Paying household bills, raising children or giving up a career rarely creates a share on its own. TOLATA litigation is also costly, routinely running into the tens of thousands of pounds, and unlike family proceedings the loser can be ordered to pay the winner's costs. The mechanics of one partner buying the other out, valuations, mortgage capacity, transfer of equity, are the same as for divorcing couples, covered in our house buyout and transfer of equity guide.
Schedule 1 and child maintenance: support for children, not partners
Where an unmarried couple have children, two routes provide money, and both belong to the children rather than the ex-partner.
Child maintenance works identically whether or not the parents were married. The CMS formula takes the paying parent's gross weekly income: at the basic rate, 12 percent for one child, 16 percent for two and 19 percent for three or more on income up to £800 a week, then 9, 12 or 15 percent on the slice from £800.01 to £3,000. Using Collect and Pay instead of a direct arrangement adds 20 percent for the payer and deducts 4 percent from the recipient. The full mechanics, including reductions for shared care, are in our CMS formula guide.
Schedule 1 of the Children Act 1989 goes further for bigger money cases. A court can order a lump sum for child-related costs, top-up maintenance where the payer's gross income exceeds the CMS ceiling of £3,000 a week, and, most significantly, housing: a home purchased or settled for the child and caring parent to live in. The catch is that the housing is usually held on trust and reverts to the paying parent when the child turns 18 or finishes education. The caring parent gets stability, not capital. Contrast that with spousal maintenance, which simply does not exist for unmarried partners.
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Married vs unmarried at separation: pensions, maintenance and the family home
| Claim on separation | Married or civil partners | Unmarried cohabitants |
|---|---|---|
| Share of the family home | Yes, divided on needs and fairness, whoever owns it | Only your provable ownership share under TOLATA |
| Pension sharing | Yes, by court order under WRPA 1999 | No claim at all |
| Maintenance for yourself | Possible (not taxable for the recipient, not deductible for the payer) | None |
| Child maintenance | CMS formula | CMS formula, identical |
| Housing for children | Within the overall settlement | Schedule 1, usually reverting to the payer |
| CGT on transfers between you | No-gain-no-loss for 3 tax years after separation, unlimited under a court order | Normal CGT rules, no relief |
Cohabitation agreements: a financial settlement written in advance
Because no court will impose fairness later, unmarried couples have to contract for it up front. A cohabitation agreement records who owns what, how the mortgage, deposit and bills are shared, what happens to the home and other assets if you separate, and practical points like pets and joint accounts. Paired with a declaration of trust fixing the beneficial shares in the property, it removes almost everything a TOLATA dispute would otherwise argue about.
Properly made, with both partners signing freely, disclosure of finances and ideally independent advice on each side, a cohabitation agreement is an enforceable contract. That gives it a firmer legal footing than a prenuptial agreement, which a divorce court can depart from. Typical drafting costs run from about £500 to £1,500, a fraction of contested TOLATA proceedings.
Separation agreements for married couples not yet divorcing
A separation agreement is the married couple's version of the same idea: a deed recording how you will divide money, property and outgoings now, while the divorce itself waits. Couples use them to delay divorce for religious reasons, to preserve marriage-linked benefits, or simply to settle the finances while emotions are still workable. Courts give substantial weight to a separation agreement made with full disclosure and independent advice, but it is still a contract, not an order: financial claims between spouses stay open until a judge approves a consent order, which costs £62 in court fees within divorce proceedings.
Timing has a tax edge for this group. Separating spouses keep no-gain-no-loss CGT treatment on transfers between them for 3 tax years after the tax year of separation, and without limit where the transfer happens under a court order. Unmarried partners get none of that: transferring a share of a property to an ex-partner is a normal disposal, set against a £3,000 annual exempt amount for 2026/27, taxed at 18 or 24 percent on residential gains, with any tax due reportable within 60 days. And either partner buying a next home while still holding a stake in the old one can face the 5 percent SDLT additional-dwelling surcharge. For cohabitants, the tax system is one more place where the safety net is missing.
The bottom line on separation, divorce and financial protection
Marriage is a legal switch, not a formality. Unmarried couples get property law and child-focused claims, nothing more, so the protection has to be written: a declaration of trust and cohabitation agreement while together, a clearly drafted separation agreement if splitting. Married couples who separate without divorcing hold far stronger claims, but those claims cut both ways and stay open until a consent order closes them.
If you are unpicking shared finances in either situation, our financial settlements hub sets out how the numbers work, and if you want a family solicitor to draft or review an agreement, get in touch. This article is information, not legal advice, and everyone's circumstances differ.