Many clients say to us that they have been living with their partner for a number of years as though they were married and therefore they are common law spouses. Unfortunately, this is a myth which needs to be busted.

It is widely accepted that due to a number of reasons such as the cost and people’s perception of marriage the number of couples that are cohabiting rather than formalising their relationship through marriage or civil partnership is increasing. Few people know that opposite sex couples can, as of 2nd December 2019, enter into civil partnerships and this can afford cohabiting parties additional protection if they do not wish to marry. As many people are unaware that this is an option people are living with their partners for a long time without formalising their relationship and protecting themselves financially. Unfortunately, the law is not well equipped to deal with parties who separate following a period of cohabitation if they remain unmarried/do not enter into a civil partnership. Given the change in society’s structure many are calling for the law to be updated in order to afford cohabiting partners more protection.

However, until this is done if you remain unmarried/not in a civil partnership, the claims you have against your partner are limited. There are two pieces of legislation that you can rely on if you separate from your unmarried partner, namely Schedule 1 of the Children Act 1989 (‘Schedule 1’) and the Trusts of Land and Appointment of Trustees Act 1996 (‘TLATA’).

A Schedule 1 application allows a person to seek financial provision for a child and the Court can make a variety of Orders for the child’s benefit. However, the needs of the parent/spouse would not be considered. Furthermore, it is likely that various conditions will be placed on the financial provision such a repaying any sum paid or returning the property to the original owner.

The second type of claim available for unmarried couples is a TLATA claim which deals solely with property. However, it is a complicated area of law. In a TLATA claim the Court will not consider what would be a fair division of assets. Instead a clinical application of strict rules will be applied to work out an individual’s interest in the property.

Beyond the above limited applications, a cohabiting couple will not have any further claims against their partner unless they marry or enter into a civil partnership.

If you are experiencing difficulties in your relationship and you would like further advice regarding the claims available to a cohabiting couple please speak to a member of our Family Department, either Rebecca Bye, Lachlan Donaldson or Robert Green on 01622 759051 or email