Nobody wants to think the worst of their soulmate, but the following will hopefully make you think no less of them, but more about the legal nightmare that unmarried couples can find themselves in. There are 3.5 million cohabiting couple families in the UK, 17.7 per cent of all families, up from 3.1 million in 2014. Most of them almost certainly believe that years of shared life, shared bills and a shared mortgage add up to something legally meaningful. But in reality, they do not.
‘Common law marriage’ does not exist in England and Wales. It never has. Whether a couple has lived together for six months or six years, the law treats them as two separate individuals with almost no automatic rights to each other’s property, income or assets. The assumption that time together creates protection is the kind of misconception that only becomes apparent at the worst possible moment.
When an unmarried couple splits and both names are on the mortgage, neither partner can be forced out of the property without a court order. That sounds like security. It is not. It means both people are trapped in a flat together, or one leaves voluntarily while continuing to pay a mortgage on a home they no longer live in, because the lender will not release either party simply because the relationship has ended. Until there is a sale, a buyout or a formal transfer of ownership, the mortgage continues under the same terms. The bank does not care about the breakup.
If the couple cannot agree on what to do with the property, either party can apply to the court under the Trusts of Land and Appointment of Trustees Act 1996, known as TOLATA. This is the legal mechanism, and it is a blunt one. Under TOLATA, the court can order a sale, declare each party’s beneficial share, or make orders about how the trustees exercise their powers. It cannot adjust the proportions in which the property is owned. A judge deciding a TOLATA claim is not asking what a fair outcome looks like for two people starting over. The question is what the parties actually intended and contributed in the past. That, and nothing wider, is the test.
Filing a TOLATA claim costs £387 in the county court, or £663 in the High Court, under HMCTS fees updated on 13 July 2026. A contested multi-track hearing adds a further four-figure sum in court fees alone, before solicitor costs are counted, and those commonly run to several thousand pounds per side. Total legal costs for obtaining a court order to force a sale can range from £2,000 to £20,000 or more, depending on how hard either party fights. The couple who could not agree on who keeps the flat may end up spending the equity arguing about it.
On 5 June 2026, the government published a Green Paper called ‘A fairer end to relationships’, proposing for the first time a statutory opt-out framework of financial rights for cohabitants who have lived together for at least three years, or who share a child. The consultation closed on 14 August 2026. Any resulting legislation is unlikely before 2028. Until it passes, the strict current law governs every separation happening right now.
One further detail the brief allows: without a will, an unmarried partner inherits nothing automatically under intestacy rules, regardless of how long the couple was together. The law that applies at death is the same law that applies at separation, and neither one knows how long you were together. – I just softened the start
