Many couples believe in the concept of a ‘common‑law marriage’. In reality, no such legal status exists in England and Wales. This article explores some of the main options couples in these circumstances should consider.
Agreeing arrangements informally
Some couples are able to reach amicable agreements about matters such as who keeps or sells the home, how household belongings are divided and/or how joint debts will be managed.
An informal agreement can work if trust remains high. However, it is not legally binding and may lead to disputes later, including court applications being made. A written agreement, drafted with legal advice, can offer greater protection and clarity for both parties.
Financial separation where one partner owns the home
If only one partner is named on the legal title, the non‑owner may still have financial claims if they can show that:
- A “relevant” financial contribution has been made by them, for example to the purchase price or mortgage; and
- They have suffered a detriment as a result; and
- There was a clear agreement or understanding between the couple that they would share ownership.
An agreement could be reached through solicitors’ correspondence, designed to reflect each of the couples’ contributions/intentions. If a court application is needed, the application would be made under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA).
Through TLATA, the court can declare each partner’s share in the property, order the sale of the home and/or decide how sale proceeds will be divided. TLATA claims are often complex, making early legal advice essential.
Financial arrangements where the home is jointly owned
If both partners are named on the title of the property, each is presumed to own the property in the shares set out in the legal documents. If the title does not specify the shares, ownership is usually presumed to be 50/50 unless proven otherwise.
Options include one partner buying out the other, selling the property and dividing proceeds, or, retaining the property temporarily (e.g. until children reach a certain age).
A Declaration of Trust, if previously prepared, will often guide how equity should be split. If there is no Declaration of Trust, there are other ways to try and establish each of the couples’ contribution/intention was, in relation to the ownership of the property.
Once again, an agreement could be reached through solicitor negotiations, with the possibility of either a Consent Order (a binding legal order approved by the court) or a Separation Agreement being prepared.
Separation Agreements
A Separation Agreement can be drafted to record agreed terms. These agreements can be used to confirm how property, savings, and possessions will be divided and to record financial obligations such as continued contributions.
These agreements are often given a lot of weight if certain conditions are met, such as if both parties took legal advice, there was full financial information shared in advance and if the agreement has been entered into freely.
Financial support for children – Schedule 1 claims
If a separating couple have children together, they may be able to apply under Schedule 1 of the Children Act 1989 for financial provision. The court can order, for example, a lump sum (e.g. for furniture, equipment, or education costs for the child), a transfer or settlement of property for the benefit of the child (usually until adulthood), or in some circumstances monthly payments (e.g. if the parents fall into the category where the Child Maintenance Service (CMS) would not be involved).
One of the key differences between claims under Schedule 1 of the Children Act 1989, for unmarried couples, and claims under the Matrimonial Causes Act 1973, for married couples, is that Schedule 1 claims are for the child, not the parent.
Mediation
Mediation offers separated couples a safe, structured environment to reach their own agreements on property and finances, child arrangements and communication and co‑parenting.
It is often quicker and more cost‑effective than court proceedings. Unless a specific exemption applies, a court application cannot be made until mediation has been explored.
Conclusion
Separation is challenging for any couple, but those who are not married nor in a civil partnership navigate a particularly complex legal landscape because they do not benefit from the protections of marriage. Understanding your legal rights, and the options available for resolving property, finances, and arrangements for children, can help you regain clarity and control during a difficult time.
How TWM can help you
If you are considering separation, or simply want to understand your options, we are here to help. Contact our Family Law team to book an initial consultation. We’ll explain your options clearly and objectively so you can move forward with confidence.