The cohabitation trap: what to say before an unmarried couple buys together

There are 3.5 million couples in England and Wales living together without marrying or entering a civil partnership. Many of them buy a home together, sign a TR1 with "joint tenants" ticked, and never think about it again. The solicitor who acted on that purchase is often the only lawyer either of them will speak to until the relationship ends. By then the options have narrowed considerably.

Family practitioners see the back end of this constantly. The front end is a conveyancing file. Which is why the most useful intervention is usually not a family lawyer's at all.

Is there such a thing as a common law marriage?

No, and it is worth stating plainly, because clients still believe otherwise. The Ministry of Justice puts the figure at 47% of people in England and Wales who think the status exists.

A cohabiting partner has no claim to maintenance, no entitlement to a share of the other's pension, and no route to the discretionary redistribution that section 25 of the Matrimonial Causes Act 1973 gives a divorcing spouse. The Law Commission recommended reform in 2007. Nothing has been enacted since, although the position is now under consultation, and the reform proposals are set out below.

What a cohabitant has instead is property law. Their position depends on how the legal and beneficial title was set up at purchase, what was said and done afterwards, and whether any of it was written down. Those are facts fixed years before anyone instructs a family solicitor.

Which decisions on the purchase file decide the outcome?

Three choices on a conveyancing file do most of the work later.

Joint tenants or tenants in common

A couple contributing £80,000 and £10,000 respectively, who tick joint tenants without discussion, have declared that they hold the beneficial interest equally. That declaration is close to unanswerable afterwards. Where the beneficial shares have been expressly declared, the declaration is conclusive and the court will not go behind it except on grounds such as rectification or fraud, following Goodman v Gallant [1986] Fam 106 and applied by the Court of Appeal in Pankhania v Chandegra [2012] EWCA Civ 1438.

The common intention constructive trust reasoning in Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53 does not help here, because those cases deal with the different situation of joint legal owners who never declared their beneficial shares at all. A separate declaration of trust at completion costs a fraction of what the argument costs on separation, and where contributions are unequal it is the only document that reliably records what the parties actually agreed.

Sole name with a contributing partner

The non-owning partner who paid the deposit, covered the mortgage during a redundancy, or funded an extension has to establish a beneficial interest by constructive trust or proprietary estoppel. Evidence is everything, and most of it was never kept. A short declaration of trust, or even a contemporaneous letter from the solicitor recording the contribution, changes the case.

Parents' money

Gifted deposits from one side of the family are routine. Whether that money was a gift to the couple, a gift to one of them, or a loan determines where it sits on separation, and the mortgage lender's gift letter is not the last word on the point. Asking the question at purchase, and recording the answer, avoids a dispute that regularly ends up pleaded as a third-party claim.

What is a TOLATA claim, and what can the court do?

When an unmarried couple separates and cannot agree what happens to the property, the route is a TOLATA claim under the Trusts of Land and Appointment of Trustees Act 1996. The court can declare the beneficial shares and order a sale, and in doing so it weighs the matters set out in section 15 of the Act: the intentions of the people who created the trust, the purpose for which the property is held, the welfare of any minor who occupies it, and the interests of any secured creditor.

What it cannot do is adjust the shares to produce a fair result. A partner who gave up work to raise the children, in a house held in the other's sole name, may walk away with nothing beyond what the trust analysis gives them. Where there are children, a Schedule 1 Children Act application can secure housing until the youngest reaches majority, but the property reverts afterwards. Clients find this hard to accept, and they find it harder still when they learn a two-page document at purchase would have avoided it.

What should a conveyancer say at completion?

None of this requires a conveyancer to give family law advice. It requires a short, recorded conversation and, where appropriate, a referral.

That last step is the one most often skipped, usually because the client is at completion and wants the keys. The answer is a one-line note on the file and a follow-up letter.

What about later-life cohabitants?

Older cohabiting couples are a growing group, and they frequently hold property in a sole name from a previous marriage, move a new partner in, and make no changes. On death the surviving partner may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which generally requires the couple to have lived together as if married or in a civil partnership for at least two years ending with the death. On separation they have very little.

Private client solicitors drafting wills for a cohabiting client are well placed to raise both points, and a referral to a family practitioner for a cohabitation agreement sits naturally alongside the will instruction.

What has the government proposed, and does it change the advice?

The gap the Law Commission identified in 2007 is now the subject of a live reform programme, and none of it is law.

On 5 June 2026 the Ministry of Justice opened a consultation, A fairer end to relationships, which ran for ten weeks and closed on 14 August 2026. For cohabitants it proposes a statutory framework for adults in long-term, committed and interdependent relationships who have either lived together for at least three years or live together and share a child. The protections would apply automatically to eligible couples, with an opt-out where both partners agree. Qualifying cohabitants would also inherit automatically where a partner dies without a valid will, and the qualifying period for applying for provision from a deceased partner's estate would be removed where the couple had children together. The same consultation covers financial remedies on divorce and proposes making qualifying nuptial agreements binding.

For a client buying a house this month, the proposals change the advice very little, and arguably strengthen the case for giving it. Any framework that arrives is likely to carry a minimum duration, so a couple who separate before that period is up would fall outside the regime altogether. An opt-out, if enacted, is one more document that has to be explained at the point of purchase. And a couple who have expressly declared their beneficial shares have at least taken the property question out of the argument before it starts.

The conveyancing file is not a stopgap until Parliament acts. It decides the outcome now, and it will still decide the outcome for every couple who falls outside whatever replaces it.