Winners of Family Law Team of the Year – Chambers HNW Awards 2024
There is a common misconception that couples who live together acquire rights through “common law” marriage permitting one or either of them to bring a financial claim against the other on the breakdown of their relationship. In fact, there is no separate statutory code governing the breakdown of the relationship of cohabiting couples.
There is a common misconception that couples who live together acquire rights through “common law” marriage permitting one or either of them to bring a financial claim against the other on the breakdown of their relationship. In fact, there is no separate statutory code governing the breakdown of the relationship of cohabiting couples.
Unlike divorcing spouses, cohabitees must turn to complex and sometimes archaic principles of property, trust and contract law. Whilst some family lawyers have campaigned for many years to improve the rights of cohabitants, reform has yet to be enacted. The Government announced in November 2025 that it will launch a wide-ranging consultation in Spring 2026 on the law governing financial remedies on divorce, civil partnership dissolution and cohabitation, but any reform is likely to take years to move from consultation to implementation. In the meantime, the current law is unchanged and proactive legal planning is the most effective protection available to cohabiting couples.
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Whether you are entering into a cohabiting relationship and want to put proper protections in place, separating from a partner and need advice on property, children or finances, or have lost a partner and need to consider an Inheritance Act claim, specialist legal advice is essential. At Payne Hicks Beach our Family team is experienced, discreet and pragmatic, and we are happy to discuss your circumstances in confidence.
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Why Choose Payne Hicks Beach?
With top ratings in Chambers UK, Chambers HNW and The Legal 500 UK guides, the department is recognised as frequently advising in some of the most high-value and high-profile matrimonial cases in the market, including cases involving complex international aspects.
It is crucial that a couple who wish to live together give proper consideration to the regulation of their financial affairs prior to commencing cohabitation. Whilst a party terminating a cohabiting relationship has no right to bring a claim against the other party for financial provision, whether of a capital or income nature, where there is a child or children of the relationship, separate statutory provision permits one parent to make a claim against the other to ensure that the reasonable housing and income needs of the children are properly provided for.
Couples who choose to live together should consider entering into a cohabitation agreement providing for certainty and security. Such agreements, if properly executed and entered into with the benefit of legal advice and full transparency, are likely to be upheld by the court and can provide financial security and protection upon the breakdown of the cohabiting relationship. A cohabitation agreement is likely to address, amongst other things, the rights and responsibilities of each of the parties in relation to their respective financial resources, including, in relation to the family home, the financial arrangements that will apply while the couple live together, a mechanism to bring the relationship to an end and the financial consequences arising.
The key benefit to giving proper consideration to a cohabitation agreement at the outset is that it can avoid costly, lengthy and uncertain litigation if the relationship breaks down. An agreement can provide clarity on what will happen to assets purchased jointly during the relationship and what will happen to assets that each party has brought to the relationship.
As a firm specialising in all matters affecting private clients, we are particularly well placed to advise on property ownership, tax implications and on all financial claims including those brought on behalf of children for capital and maintenance as well as on other child related issues such as parental responsibility, residence, contact and schooling.
We give practical and pragmatic advice and aim to achieve fair solutions whilst keeping conflict to the minimum.
Increasingly, planning for marriage and cohabitation may involve international considerations and complex assets. We have significant experience working with international clients across multiple jurisdictions. We have an established network of trusted lawyers in key jurisdictions whom we can engage to collaborate with us.
TOLATA, what is it?
One of the most important questions that a separating couple will have to resolve is what to do with the property they lived in together. Will it be sold immediately, or at some future date? How will the proceeds of sale be split?
There is still a misconception that a long-term cohabiting couple are a ‘common law husband and wife’, who have acquired the same legal protections afforded to married couples. In fact cohabitees have fewer rights than married couples. The rights they have in relation to the property may be enshrined in the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Alternatively, they may have to rely on trusts law.
View our TOLTATA page.
Schedule 1 Children Act Claims
Where unmarried couples separate but have children together, the primary route to financial provision for those children, over and above child maintenance administered by the Child Maintenance Service, is by making an application under Schedule 1 of the Children Act 1989. Schedule 1 allows the court to order lump sums, transfers of property, settlements of property and periodical payments for the benefit of a child. In high value cases, Schedule 1 applications frequently involve provision of a family home for the primary carer and child to live in until the child reaches 18 or completes full time education. At that point the property will ordinarily revert to the ownership of the settlor.
Schedule 1 and TOLATA claims are often pursued in parallel where separating cohabitants jointly own property and have children, and the interaction between the two regimes requires careful handling. We advise both applicants seeking financial provision for children and respondents facing such claims, including cases involving internationally mobile families, trust held assets and complex income structures.
Inheritance & Cohabitation: Claims on Death
Unlike spouses and civil partners, cohabitants have no automatic inheritance rights on the death of a partner under the intestacy rules of England and Wales. If a partner dies without a valid will, the estate passes to blood relatives rather than to the surviving cohabitant. A cohabitant who lived with the deceased as if married or in a civil partnership for at least the two years immediately before death, or who was being maintained by the deceased, may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate. These claims are subject to strict time limits, usually six months from the date of the grant of representation, and benefit from early legal advice.
We advise surviving cohabitants and estates on Inheritance Act claims, working alongside PHB’s Contentious Trusts and Probate specialists. We also encourage all our cohabiting clients to make or update their wills: the absence of a valid will is the most common reason that surviving cohabitants find themselves in contested probate proceedings in the first place.
Credentials & Accreditations
- Chambers HNW 2025: Leading Firm for Family Law
- Chambers UK: Leading Firm for Family Law
- The Legal 500 UK: Top Tier, Family Law
- Chambers HNW Awards 2024: Winner, Family Law Team of the Year
- ePrivateclient: Tier 1 Ranking, Top Family Law Firms
- Doyle’s Guide: Leading Family & Divorce Law (London)
- Spear’s Family Lawyers Index: Featured for top family lawyers
Directory commentary
The Family Team at Payne Hicks Beach is ranked in Chambers HNW 2023. The directory writes that “Payne Hicks Beach has a highly esteemed family law department which regularly handles high-value and sophisticated matters.” “They are uniformly first rate, from the technical ability of more junior team members with day to day responsibility on a case, to the deep experience and strategic thinking offered by the partners and more senior associates.” “PHB are absolutely excellent. They are all extremely competent, and can handle really big cases without being fazed by anything.” With rankings over many years in Chambers HNW, testimonials include “They’re as good as you’ll find; they’re a class act,” says a source, explaining: “They have a lot of depth to their practice. They all have great experience and are very good to deal with.” Another comments: “They are a fantastic group of lawyers. They provide excellent advice to clients, and they have strong expertise in a range of areas. They really invest in their clients; it’s a real pleasure dealing with them.”
The Legal 500 UK 2023 describes Payne Hicks Beach LLP as a “top notch firm that does A list work for the most influential, successful and high profile clients.” The law directory expands to say that “the department is ‘outstanding’ and garners praise for its specialist advice on the full spectrum of complex family law issues often with an international dimension for high-profile individuals, entrepreneurs, UHNWs and others including members of international Royalty” and recognises that the team “is frequently instructed in cases that go to the Supreme Court and the Court of Appeal.” “Overall it is a ‘class act with a team of great lawyers who know exactly how to run the big, difficult litigation but never lose sight of what the client wants’.” One source comments: “The PHB family team has exceptional experience of the most complex international family law disputes. Very few other firms have this level of experience. Hand-in-hand with this the firm delivers a very personal service, giving clients the assurance that both their case and their welfare are being cared for with utmost attention.”
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Frequently Asked Questions
Cohabiting couples in England and Wales do not have the same legal rights as married couples or civil partners. The concept of “common law marriage” does not exist in English law, however long a couple has lived together. On separation, cohabitants have no automatic right to maintenance, to a share of the other partner’s pension, or to a redistribution of assets on a needs or fairness basis. Property rights are determined by ordinary trusts and property law principles and under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). On the death of a partner, cohabitants do not automatically inherit under the intestacy rules and must rely on a valid will or a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A cohabitation agreement is a written contract between unmarried partners that records how property, finances and practical arrangements will be handled during the relationship and if the relationship ends. Cohabitation agreements may be enforceable as contracts , provided they are properly drafted, executed as a deed, entered into following full financial disclosure, and signed by both parties after each has received independent legal advice. A well drafted cohabitation agreement is the most effective protection currently available to cohabiting couples under English law and can significantly reduce the risk and cost of any later dispute.
The cost of a cohabitation agreement depends on the complexity of the couple’s circumstances: the value and ownership structure of the home, the treatment of other assets, whether family gifts or loans are involved, and whether there are children of the relationship. Straightforward agreements can be produced quickly; more complex cases involving high value property, trust interests, business assets, international elements or bespoke arrangements require more detailed drafting and advice. We are happy to provide a fee estimate at the outset of any engagement following an initial confidential consultation.
Whether a cohabiting partner is entitled to a share of a property owned in your sole name depends on the circumstances, not on the length of the relationship. If your partner has made direct financial contributions, for example to the purchase price or the mortgage, or if there is evidence of a common intention that they would have a beneficial interest (for example because assurances were given and relied on to their detriment), they may be able to establish an interest through a resulting or constructive trust and bring a TOLATA claim. A declaration of trust, executed at the time of purchase or when contributions begin, is the clearest way to document what was intended.
A declaration of trust is a legal document that records the beneficial ownership of a property: who owns what share, how the proceeds of sale will be divided, and how contributions to the deposit, mortgage and outgoings are to be treated. For cohabiting couples buying a home together, or where one partner contributes to a home owned by the other, a declaration of trust is the most reliable way to avoid a contested TOLATA claim in the future. It is usually drafted at the point of purchase but can be prepared retrospectively, and is often executed alongside a cohabitation agreement.
Child maintenance is administered by the Child Maintenance Service on a formula basis and is available regardless of whether the parents were married. Beyond that, unmarried parents may apply to the family court under Schedule 1 of the Children Act 1989 for additional financial provision for the benefit of a child. The court can order lump sums, transfers of property, settlements of property, and periodical payments. In high value cases, Schedule 1 is most commonly used to secure the provision of a family home for the primary carer and child until the child reaches 18 or completes full time education, at which point the property typically reverts to the paying parent.
A surviving cohabitant has no automatic inheritance rights under the intestacy rules of England and Wales, which means that if the deceased partner died without a valid will, the estate would pass to blood relatives rather than to the surviving partner. A surviving cohabitant who lived with the deceased as if married or in a civil partnership for at least the two years immediately before death, or who was being maintained by the deceased, may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. These claims are subject to strict time limits, usually six months from the grant of representation, and benefit from early legal advice.
The Government confirmed in November 2025 that it will launch a wide-ranging consultation in Spring 2026 on the law governing financial remedies on divorce, civil partnership dissolution and cohabitation. The consultation follows the Law Commission’s 2024 scoping paper on financial remedies and the Labour Government’s 2024 manifesto commitment to strengthen protections for cohabiting couples. Any reform will take several years to move from consultation to implementation. In the meantime, the current law is unchanged and proactive steps (cohabitation agreements, declarations of trust, up to date wills and life cover) remain the most effective protections available to cohabiting couples.
Insights
15 January 2024
Property Disputes expert Scott Goldstein provides the essential breakdown of all things TOLATA.
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Cohabitation: how can cohabiting couples protect themselves in the event of a split?
20 August 2021
Commentary by Nick Manners, a specialist family lawyer and partner in the Family department at Payne...
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Cohabitation Agreements: Your questions answered
10 December 2020
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Contact Us for a Confidential Consultation
If you are entering into cohabitation, separating from a partner, or dealing with the financial or inheritance consequences of a partner’s death, our Family team is here to help. We are happy to discuss your circumstances, explain your options and set out a clear path forward.
