Many parents post photos of their child on social media without a second thought. New UAE ruling suggests separated parents will require consent before posting images of their child online.

The Judgement

On 9 June 2026, the Abu Dhabi Civil Family Court ruled in a landmark case on a child’s right to privacy. With a growing digital age, this ruling speaks to a child’s right to privacy and the future implications of an early-age presence on social media.

The dispute was between a father and his ex-wife, who works as a high-profile influencer. The couple divorced in Germany in July 2025 and shared joint custody of their two daughters, aged ten and five years old.

The father asked that the court prohibit the mother from “exploiting the minor children in her custody through digital media platforms” This includes posting images of the children for commercial and promotional use. He asked that she remove the posts or conceal the children’s identities in public facing content. Beyond this, the father asked to bar the creation of profiles in the children’s names without the consent of both parents, or the court.

In the UAE, photographing someone without their consent is a criminal offence, even if taken in public. In this case, the father argued that a child cannot consent and therefore his ex-wife could not post a photo online without said consent. A child cannot make informed consent because of their inability to comprehend the wide-reaching, permanent nature of posting online.

The court found that both parents had failed to adhere to proper conduct in raising the children, because each parent had posted pictures of the children online. The court ordered both parties to refrain from any activity that could harm the children mentally or physically, endanger their wellbeing or future – including posting photographs online. In the case of a breach, the consequences could extend to imprisonment or removal from joint custody. The basis for this judgement came from “Wadeema Law” which is the UAE child rights law, which acts to protect children from exploitation and guarantees their rights and best interests.

A Global Issue

This ruling speaks to a bigger, global, issue of social media and children. The expanding industry of digital content creators has given rise to family influencers – a sub-genre of social media users that post images and details of their family and convert views and likes to monetisation.

In addressing the family creators using their children as main characters in their content, certain states in the USA have regulated the child labour aspect of the issue. States such as California, Minnesota and Illinois have legislation requiring parents to place a share of earning from monetised content featuring their children in a trust.

Meanwhile, France adopted legislation in 2020 that expressly classifies child influencing as a form of child labour and prescribes specific working conditions standards for children under the age of sixteen, working on social media as the “main subject”. The legislation requires school attendance, adequate working conditions and implements a trust for the earnings.

Whereas in England and Wales, the influencer industry is largely unregulated. There is no dedicated statute governing child influencers. For example, there is no regulation requiring parents to pay a child a fair earning into a trust or limiting the working hours of a child in relation to monetised online content. By contrast, there is legislation reserved for child actors, which requires the child’s work to be licensed by their local education authority. The regulatory gap creates a legal grey area, failing to protect children’s rights in this new age of working child ‘actors’.

The number of high-net-worth couples that are choosing not to marry is becoming increasingly high. There is a widespread misconception that long-term cohabitation with your partner creates automatic legal rights. You might have heard of the phrase ‘common-law marriage.’ However, this title is simply a myth. As such, property disputes can become especially complex for wealthy unmarried couples and so it is important to be aware of the implications. This article will focus on the reasons why unmarried couples face these challenges, the types of property that can fall into dispute and ways these disputes can be resolved with a primary focus on TOLATA proceedings (Trusts of Land and Appointment of Trustees Act 1996).

Why do these disputes occur for unmarried couples

Unlike married couples, unmarried partners generally do not benefit from a legal framework that automatically governs how assets are divided when a relationship breaks down. You will have heard of the phrase ‘common-law marriage,’ which many people believe grants unmarried couples the same rights as spouses simply because they have lived together for many years. However, this is a complete misconception in England & Wales. People are often unaware that the separation of an unmarried couple is governed by different areas of law.

Instead, disputes between unmarried couples are determined under the ordinary principles of property and trust law and family lawyers often deal with cases under a piece of legislation called TOLATA. As such, legal ownership is crucial to these disputes. A partner who does not legally own the property may be able to establish a beneficial interest by demonstrating a common intention to share ownership and showing that they acted to their detriment in reliance on that intention. These are the type of proceedings that are bought under TOLATA.

For wealthy unmarried couples, these disputes can be complex. There can often be high value property portfolios, and other significant assets which have a complex ownership structure. Establishing who owns what and whether one partner has acquired an interest despite not being named on the title to that property, can often involve a lot of detailed evidence and analysis of the parties’ intentions and financial arrangements.

Types of assets often in dispute

The most common asset that unmarried couples argue over is the family home or other properties they have owned together or deem belong to both of them. When wealthy unmarried couples separate, disagreements can arise over a much wider range of assets. Residential property is often the most valuable asset and this can be the family home, a holiday home or an investment property portfolio. Questions could also arise over business interests, shares or luxury high-value items.

However, for the purposes of this article, I will be focusing on residential properties and TOLATA.

Properties – the family home or other residential properties

Real estate is often the most significant asset in disputes between unmarried couples, particularly where substantial wealth is involved. In England and Wales, the starting point is the title to the property which sets out the legal ownership and the presumption is that equity follows the law (i.e. the equitable ownership is the same as the legal ownership). Therefore, if the property is owned by only one partner, the other must establish a legal basis for claiming a beneficial interest. Some good examples of evidence which could be used to establish this are the financial contributions towards the purchase price, mortgage repayments or major renovations which have add capital value to the home.

Disputes often involve the family home, but also second homes and investment properties. These can often have complex ownership structures and can be of significant value which might require detailed analysis of financial records, or correspondence and the conduct between the parties throughout the entire relationship to demonstrate their intention as to the ownership of the property.

Steps to take before issuing TOLATA proceedings

Upon separation, the first step in these types of disputes is to try and agree with your partner the extent of your beneficial interest in the property and the subsequent financial provision you should receive from it.

TOLATA claims are heard in the civil courts rather than the family courts. As such, there is strict procedure to follow before issuing a court application. These can be found by reference to the Civil Procedure Rules and the accompanying Pre-Action Protocol. To give an overview, you should firstly write to your partner to see if matters can be agreed outside of court. If their response is not forthcoming, you need to serve them with what is called a ‘Letter before Action.’ This is a comprehensive document which must fully set out your position, containing the factual background of the matter, the basis of your claim, and the action required to resolve the matter.

As part of the Pre-Action Protocols, attempts at engaging with a form of non-court dispute resolution should be made. For example, you should invite your ex-partner to engage in mediation at the very least. If they do not engage, you can make this point in your Letter before Action.

In terms of setting out the action required to resolve the matter, you should clearly set out the steps you are asking your ex-partner to take. This is essentially the offer you are making in respect of the property and how you want the proceeds to be divided.

Issuing TOLATA proceedings

If an agreement cannot be reached in correspondence, then you may have to issue a court application under TOLATA.

The court’s role is not to redistribute property on the basis of fairness, as it might do in divorce proceedings. However, the intention of the court is to establish the parties’ existing legal and beneficial interests. In doing so, the court will consider the property’s legal title alongside the evidence of the parties’ intentions and conduct. As set out above, this can include evidence of mortgage repayments, renovation costs, discussions about ownership or any written agreements over the course of the relationship.

These types of disputes are heavily reliant on the facts of the case. The outcome will often depend on the quality of the documentary evidence and the credibility of the parties’ accounts, making early legal advice particularly important in high-value property disputes.

Once your TOLATA application is issued, the court will list the first hearing known as the costs and case management conference. This is primarily an administrative hearing, and the substantial outcome of the case will not be determined at this stage.

After the first hearing, there will likely be a further two hearings. The second is a pre-trial review which is a short hearing where a judge checks that all directions have been complied with to ensure the case is ready for a trial. The third is a Final Hearing where a Judge will decide the outcome of the case. Both parties will need to give evidence at this Final Hearing, and it might be listed across a couple of days to ensure there is sufficient time to hear all of the evidence before the court.

In terms of the costs consequences, each party will be responsible for their own legal fees in the first instance. Naturally, the further a court case progresses, the higher the costs will be. As these are civil proceedings, the general rule is that ‘the loser pays the winner’s costs.’ Therefore, this is something that you should bear in mind before issuing a court application. You should be content with the idea that you have a strong case before issuing proceedings as you could be liable to pay the costs of the other party if you are not successful. In some cases this could wipe out the benefit of the potential claim and there always needs to be a careful cost / benefit analysis – TOLATA claims should not be rushed.

Protective measures – Cohabitation Agreements and Declarations of Trust

For unmarried couples with significant wealth, taking proactive legal steps before a dispute arises can provide valuable certainty and reduce the risk of costly litigation.

A well-drafted cohabitation agreement allows partners to record how they intend to own property, manage financial responsibilities during the relationship and deal with assets if they separate. Although cohabitation agreements are not subject to the same statutory framework as prenuptial agreements, they can hold some weight in England and Wales provided they are properly drafted and both parties have the benefit of independent legal advice.

Couples purchasing property together should also consider entering into a declaration of trust. This document will record your respective beneficial interests and can help avoid later disputes over ownership. For example, if one partner has contributed more to the deposit of the property, this can be recorded in the declaration of trust. Thereafter, the declaration of trust can record your intention to own the property equally or in line with distinctive shares referable to the deposit contribution or mortgage payments.

Maintaining clear financial records, retaining evidence of significant contributions and seeking independent legal advice before acquiring high-value assets can all help minimise uncertainty and place both parties in a stronger position should the relationship come to an end.

High-value property disputed: Unique challenges

Property disputes involving high-net worth unmarried couples often present challenges that extend well beyond establishing who paid for a particular asset. Significant wealth is frequently held through complex structures, including family investment companies or trusts, making it more difficult to identify the true legal and beneficial ownership of the assets.

Given the substantial financial stakes involved, many high-net-worth individuals may prefer to resolve disputes confidentially and outside of court rather than pursuing in lengthy and costly litigation. Judgments in TOLATA proceedings can and will be reported without anonymity which is a big consideration for those with a public profile.

Other forms of Alternative Dispute Resolution

As set out above, as part of the Pre-Action Protocol, engagement in Alternative Dispute Resolution should be attempted. The court has the power to stay the proceedings to return the matter to mediation, or other forms of ADR, if they do not believe sufficient attempts have been made to engage in the same.

Early negotiation between the parties, often through solicitors, may enable an agreement to be reached without the time, expense and uncertainty of litigation. Mediation is another popular option, as discussed above, although the outcome of the same is not binding upon the parties. An alternative option to court is arbitration where a specialist is appointed to provide a binding determination. An arbitration can be conducted in private and outside of the court room.

Conclusion

If you are unmarried and have recently separated, family lawyers can help to ensure that you are protected and can help you to find a way to ensure you receive the appropriate provision from property that you previously owned with your ex-partner.

Frequently Asked Questions (FAQs)

My experience

My name is Alice Carter and I am a Trainee Solicitor at Edwards Family Law. I have worked at the firm for over 3 years, and I have assisted the team in various matters which involves these types of property disputes and TOLATA proceedings. Please do not hesitate to get in touch should you have any questions arising from this article.

A Family Lawyer’s Guide

Q: What is a consent order?

A: A consent order is a court order that records the financial agreement you and your spouse have reached on divorce and makes it legally binding. It can deal with the family home, savings and investments, pensions, lump sum payments, maintenance and the division of belongings, and it can include a clean break that ends all financial ties between you. Even if you agree everything between yourselves, that agreement is not legally binding until a court approves it as a consent order, so in almost every divorce one is strongly advisable.

One of the most common and costly misunderstandings in divorce is the belief that, once the divorce is final, the finances are settled too. They are not. The divorce ends the marriage; the finances are a separate matter, and unless your agreement is recorded in a court order, your financial claims against each other stay open, sometimes for many years. This guide explains what a consent order is, why you need one, how long it takes, what it costs, and how the process works in England and Wales.

What Is a Consent Order?

A consent order is a court order that sets out the financial agreement reached between divorcing spouses and gives it legal force. It is called a consent order because both parties consent to its terms: you are asking the court to approve an agreement you have already reached, rather than to impose one. It can cover what happens to the family home, how savings, investments and pensions are divided, lump sum payments, ongoing maintenance, and the division of personal belongings. In most cases neither party needs to attend court, as it is dealt with on paper.

Do You Need a Consent Order?

In almost all cases, yes. By virtue of the marriage, each spouse can in principle make a financial claim against the other on divorce. Many couples resolve these claims by agreement, but an agreement reached privately, even in writing, is not legally binding unless it is converted into a court order. Until then, the claims remain open with no time limit. In Vince v Wyatt [2015] UKSC 14, a former wife successfully brought a financial claim more than twenty years after the couple had separated with no significant assets, and the Supreme Court confirmed there is no time limit on such claims after divorce. A consent order, ideally with a clean break, is the only way to close that risk off for good.

“Just because an agreement is in writing and signed does not mean the court is bound by it. If circumstances change afterwards (for example, an unexpected windfall from a business sale) those funds could be up for grabs, even if the parties have already acted on the agreement reached. Cutting corners to save on legal fees can end up costing a lot more in the long run. If you reach an agreement around the kitchen table it is imperative a lawyer looks at this and takes the necessary steps to formalise it, or it may not be worth the paper it is written on.”

What Does a Consent Order Cover?

A consent order can deal with all of the financial issues arising from a marriage, including the family home and any other property, savings, investments and other capital, pensions (including pension sharing), lump sum payments from one party to the other, spousal maintenance where appropriate, and the division of belongings. Where you both agree that neither will make any future claim against the other, the order can also include a clean break.

What Is a Clean Break Order?

A clean break order is a consent order that dismisses both parties’ financial claims against each other and ends all financial ties, now and in the future. It provides certainty and finality and prevents either party returning for more later. A clean break is often the goal, particularly for couples with straightforward finances, and it is exactly the protection the husband in Vince v Wyatt lacked.

How Long Does a Consent Order Take?

Two timescales matter. The first is reaching agreement and drafting the order, which depends on how quickly you and your spouse can agree and how complex the finances are, from a few weeks to several months. The second is the court’s approval. A consent order can be submitted once you have reached the conditional order stage of the divorce, and once lodged, court approval typically takes a few weeks to a couple of months, depending on the court’s workload. The order typically takes effect when the final order of divorce is granted. There is no fixed statutory wait for approval itself, but the divorce timetable (a minimum of around 26 weeks) sets the overall pace.

“Delay is often caused by one party who does not wish to engage (even if an agreement has been reached) and there can be many different reasons for this. A common example is where the submission of a consent order will mean a big change for one party (such as selling the family home) meaning they may not be incentivised to act quickly and so drag their heels. Unfortunately, the only way to force someone to engage is by issuing court proceedings but often, the potential costs of this will encourage people to cooperate.“

How Does the Consent Order Process Work?

The process is largely a paper exercise. Once you have reached agreement, the consent order is drafted, and both parties complete a prescribed statement of information (Form D81) giving the court a summary of your finances. A judge reviews this to check the agreement is broadly fair. The judge retains discretion and will approve the order unless it appears manifestly unfair; any queries are usually dealt with in writing. Once approved, the order is sealed and becomes binding on the final order of divorce. If a party later fails to comply, the other can apply to court to enforce it, which is protection an informal agreement can never provide.

How Much Does a Consent Order Cost?

There are two elements. The court fee for submitting a consent order is modest (currently £60, payable to HM Courts and Tribunals Service). The larger element is the cost of drafting the order and the statement of information, which is where professional advice matters. A well-drafted order does more than record the headline split: it addresses pensions correctly, closes off future claims, and sets out the practical steps and timing for implementing the agreement, all of which are commonly missed in templates. Some firms offer fixed fees for straightforward consent orders.

Frequently Asked Questions

Protecting Your Financial Future

A consent order is the single most important step in protecting your financial position after divorce. It turns an agreement into binding protection, and a clean break closes off claims for good. Treating the divorce as the end of the financial story, without a financial order in place, is one of the most avoidable mistakes in family law.

At Edwards Family Law, our team negotiates financial settlements and drafts consent orders across the full range of circumstances. If you have any questions about a consent order or your financial settlement, we would be glad to help.

Need advice on a consent order?

To speak to a specialist family lawyer about your consent order or financial settlement, contact Edwards Family Law.

Contact us: contact@edwardsfamilylaw.co.uk

This article is for general information only and does not constitute legal advice. The law is correct as at the date of publication. Specific advice should always be taken to account for individual circumstances.

Sources

• Vince v Wyatt [2015] UKSC 14 (no time limit on financial claims after divorce)
• Matrimonial Causes Act 1973, in particular sections 23 to 25A
• GOV.UK – Apply for a financial order / consent order, and Form D81 (statement of information)
• Divorce, Dissolution and Separation Act 2020 (no-fault divorce)

A Family Lawyer’s Guide to Spousal Maintenance on Divorce

Q: What is spousal maintenance?

A: Spousal maintenance is a regular payment made by one former spouse to the other after divorce, to help meet their ongoing living costs where they cannot meet their needs from their own income. It is separate from child maintenance. There is no fixed formula: the amount and duration depend on the receiving party’s needs and the paying party’s ability to pay. The court will only order it where there is a genuine need that cannot otherwise be met, and the modern approach favours payments for a defined term, and a clean break wherever fairness allows.

Spousal maintenance is one of the most misunderstood, and most contested, aspects of a financial settlement on divorce. People often assume it is automatic, or that it lasts for life, or that it follows a set formula. None of those is true. This guide explains what spousal maintenance is, who can claim it, how the amount and duration are decided, how it can change, and how it differs from child maintenance, under the law of England and Wales.

What Is Spousal Maintenance?

Spousal maintenance (sometimes called spousal support or periodical payments) is a regular payment, usually monthly, made by one former spouse to the other after divorce. Its purpose is to help meet the recipient’s reasonable living costs where their own income is not enough to do so. It is distinct from the division of capital (the home, savings and pensions) and from child maintenance, which covers the costs of the children.

Am I Entitled to Spousal Maintenance?

There is no automatic entitlement. The court’s first duty is to consider whether a clean break is possible, so that the parties’ financial relationship ends. Spousal maintenance is ordered only where one party cannot meet their reasonable needs from their own resources and a capital settlement alone is not enough to bridge the gap. The factors the court weighs are set out in section 25 of the Matrimonial Causes Act 1973, and include the length of the marriage, the standard of living during it, each party’s income and earning capacity, their ages and health, and the needs and responsibilities of each, particularly the care of children. Longer marriages and a clear disparity in earning capacity make an award more likely.

CHARLOTTE’S EXPERIENCE: When maintenance is, and is not, appropriate

“Just because one party earns more than the other does not automatically mean there is a spousal maintenance claim – it is all about needs and if you can meet needs from your own income and resources then the court will not make an order. Parties do not have a right to share in future income after divorce. Sometimes maintenance will be appropriate for a short period in these situations, but only whilst adjustments are made to transition to financial independence.“

How Is Spousal Maintenance Calculated?

Unlike child maintenance, there is no formula or calculator for spousal maintenance. It is assessed on the basis of need: the court looks at the recipient’s reasonable income needs (in the context of the standard of living during the marriage) and the payer’s ability to meet them while meeting their own needs. The figure is therefore highly fact-specific. In practice, the parties prepare detailed budgets, and the court balances one party’s needs against the other’s capacity to pay, rather than applying any fixed percentage.

How Long Does Spousal Maintenance Last?

The modern approach strongly favours maintenance for a defined, limited term rather than indefinitely. A term order runs for a set number of years, often linked to a point when the recipient can be expected to become financially independent, such as when young children start school or full-time education. The court can also make a ‘joint lives’ order (lasting until death, remarriage or further order), but these are now far less common and reserved for cases where genuine independence is not realistically achievable, often after a long marriage. The leading guidance on the proper approach to spousal maintenance was set out by the court in SS v NS [2014] EWHC 4183 (Fam), which emphasised need, the transition to independence, and that an award should be made for no longer than is required.

Where a term is ordered, the court may or may not allow it to be extended. A term order without a bar under section 28(1A) of the Matrimonial Causes Act 1973 can be extended on application before it ends; with a section 28(1A) bar, it cannot. This distinction is one of the most important, and most overlooked, points in any maintenance order.

“Life is uncertain and the variability of maintenance orders is designed to guard against that. At the same time, finality is incredibly important. Whilst many orders will not include a ‘bar’ to an extension, meaning it is theoretically possible, I have never seen a successful application to extend maintenance beyond the original term in a decade of practice.

Whilst it is no longer as common, a few decades ago the court would frequently make orders for maintenance to be paid for long periods and sometimes for the rest of someone’s life. The variation of maintenance was arguably more important to deal with those orders, and I still see historic orders from that period that need to be varied today. If maintenance could not be varied, there would be no way to factor in changes to earnings or the future capital a recipient might build up. Circumstances change in both directions, whether due to specific matters like inheritance, living with a new partner, ill health or more generally, rising inflation and economic downturn. The benefit of variation is that it cuts both ways and there is always the option to seek a variation if there has been a significant change in circumstances.“

Can Spousal Maintenance Be Changed or Ended?

Yes. Spousal maintenance is variable: either party can apply to court to increase, reduce, extend, shorten or end it if circumstances change materially, for example a change in either party’s income, the payer’s retirement, or the recipient’s new relationship. It also ends automatically on the death of either party or on the recipient’s remarriage. Cohabitation by the recipient does not automatically end maintenance, but it is a relevant change of circumstances that can justify a reduction or termination.

Can Maintenance Be Paid as a Lump Sum (Capitalisation)?

Often, yes, and it is frequently desirable. Instead of ongoing payments, the maintenance can be ‘capitalised’ into a single lump sum, calculated using an established method (commonly a Duxbury calculation), which achieves a clean break. This gives both parties certainty and independence and removes the need for continuing financial ties. Whether capitalisation is appropriate depends on whether there is enough capital available to fund it fairly.

Spousal Maintenance vs Child Maintenance

These are separate and should not be confused. Child maintenance covers the costs of the children and is usually calculated under a statutory formula administered by the Child Maintenance Service, based largely on the paying parent’s income (however this only applies for incomes of up to £156,000 per year). Spousal maintenance is for the former spouse’s own needs, has no formula, and is decided by the court or by agreement. A settlement can involve one, both or neither, depending on the circumstances.

Frequently Asked Questions (FAQs)

Getting Advice on Spousal Maintenance

Spousal maintenance is fact-sensitive and frequently contested, and the details, the amount, the term, whether it can be extended, and whether it should be capitalised, can have a major long-term effect on both parties. Clear advice early, whether you may pay or receive it, is the best way to reach a fair and durable outcome.

At Edwards Family Law, our team advises on every aspect of spousal maintenance, from negotiating fair terms to capitalisation and variation. If you would like to discuss your position, we would be glad to help.

Need advice on spousal maintenance?

To speak to a specialist family lawyer about spousal maintenance, whether you may pay or receive it, contact Edwards Family Law.

Contact Us: contact@edwardsfamilylaw.co.uk

This article is for general information only and does not constitute legal advice. The law is correct as at the date of publication. Specific advice should always be taken to account for individual circumstances.

Sources

• Matrimonial Causes Act 1973, in particular sections 23 to 25A and section 28(1A)
• SS v NS [2014] EWHC 4183 (Fam) (principles governing spousal maintenance)
• Child Maintenance Service – how child maintenance is calculated. gov.uk
• Duxbury v Duxbury [1992] Fam 62 (capitalisation of maintenance)

Q: What is the legal difference between cohabitation and marriage in England and Wales?

A: Married couples and civil partners have comprehensive legal protections covering property, finances, pensions, inheritance and maintenance. Cohabiting couples have almost none. There is no such thing as a common law marriage. The legal gap is significant and affects what happens on separation, on death, and in everyday financial matters.

The number of cohabiting couples in England and Wales has increased by 25% in the past decade, yet the law has not kept pace. Many couples who choose to live together without marrying assume they have similar legal protections. They do not. In my practice, I see the consequences of this assumption regularly – particularly when relationships end or when one partner dies unexpectedly.

In this article, I set out eight important legal differences between cohabitation and marriage, so that couples can make informed decisions about their living arrangements and take steps to protect themselves.

1. Property rights on separation

Married: The court has broad powers to divide property fairly, taking into account the parties’ needs, contributions and the welfare of any children. The court can transfer property from one spouse to the other regardless of whose name is on the title.

Cohabiting: Property belongs to whoever legally owns it. If you are not on the title, you must prove a beneficial interest through a TOLATA claim. The court cannot redistribute property based on fairness or need.

2. Maintenance and financial support

Married: Either spouse can claim maintenance from the other during and after divorce, based on their financial needs and the other’s ability to pay.

Cohabiting: There is no right to maintenance from a former cohabiting partner. You cannot ask the court to order financial support for yourself after separation, only for your children.

This is one of the most common misconceptions of clients in long-term unmarried relationships. Unmarried clients do not have a right to claim maintenance from their former partner.

3. Pensions

Married: Pensions are treated as a matrimonial asset and can be shared through the making of a Pension Sharing Order on divorce. Pensions are often the single most valuable asset in a marriage.

Cohabiting: There is no mechanism to share pensions between unmarried partners. Each partner’s pension remains entirely their own on separation.

4. Inheritance on death

Married: A surviving spouse inherits automatically under the rules of intestacy if there is no will. Even if there is a will that excludes the surviving spouse, they can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 with a strong presumption in their favour.

Cohabiting: A surviving cohabiting partner has no automatic right to inherit. Under the intestacy rules, the estate passes to children, parents, siblings or other relatives. A cohabiting partner can make an Inheritance Act claim, but the threshold is higher and the outcome less certain than for a spouse.

5. Tax

Married: Married couples benefit from the Marriage Allowance (a transfer of personal allowance worth up to £1,260 in tax savings), exemption from Capital Gains Tax on transfers between spouses, and exemption from Inheritance Tax on transfers between spouses.

Cohabiting: None of these tax advantages apply. Transfers of property or assets between unmarried partners may trigger Capital Gains Tax. There is no Inheritance Tax spousal exemption.

6. Parental responsibility

Married: Both parents automatically have parental responsibility for their children.

Cohabiting: Mothers automatically have parental responsibility. Unmarried fathers only have parental responsibility if they are named on the birth certificate (for births after 1 December 2003), have a Parental Responsibility Agreement, or have obtained a court order. This is an important distinction that many unmarried fathers are unaware of.

7. Decision-making in medical emergencies

Married: A spouse is automatically treated as next of kin for medical decisions and has the right to be consulted about treatment.

Cohabiting: A cohabiting partner has no automatic right to be consulted or to make decisions about their partner’s medical treatment. This can be addressed by executing a Lasting Power of Attorney.

8. Protection from domestic abuse

Married and cohabiting: Both married and cohabiting partners have the same rights to apply for a Non-Molestation Order or Occupation Order under the Family Law Act 1996. This is one of the few areas where the law treats married and cohabiting couples equally.

Both married and unmarried individuals have the right to apply for protective orders under the Family Law Act 1996. Like married individuals, those that are or have been cohabitants are also classified as “associated persons” and so can make the same applications to court.

What can cohabiting couples do to protect themselves?

If you choose to cohabit and not marry, you can still take steps to protect your legal and financial position:

• Enter into a cohabitation agreement setting out your financial arrangements and what happens on separation.
• Make a will leaving your partner the share of your estate you wish them to have.
• Ensure the legal title to any property reflects the true ownership, supported by a declaration of trust.
• Nominate your partner as a pension beneficiary.
• Consider a Lasting Power of Attorney for health and welfare decisions.
• Ensure unmarried fathers are named on the birth certificate.

If you are living with a partner and want to understand how the law applies to your situation, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Questions

Q: What am I entitled to if my partner and I split up and we are not married?

A: Very little, by default. Unlike married couples, cohabiting partners have no automatic right to each other’s property, savings, pension or maintenance. Your entitlements depend on legal ownership, any cohabitation agreement, and whether you can establish a beneficial interest in a property through a TOLATA claim.

When a cohabiting relationship breaks down, the legal reality can be a shock. I regularly advise clients who assumed that years of living together, raising children together, and contributing to a shared home would give them financial protection similar to a married spouse. It does not. The law in England and Wales treats unmarried partners as separate individuals with separate assets – regardless of how intertwined their lives have become.

In this article, I explain what actually happens to property, finances and children when an unmarried couple separates, and what steps you should take to protect your position.

1. The starting point: who owns what?

When unmarried couples separate, the law does not divide assets based on fairness, need, or the length of the relationship. Instead, property belongs to whoever legally owns it. If the family home is in your partner’s sole name, the presumption is that it is entirely theirs. The starting point where there is sole legal ownership is sole beneficial ownership. If it is in joint names, the starting point is that you own it in equal shares. If you believe the true position is different from what the legal title shows, you will need to establish your claim through the court.

2. What if I contributed to a property that is not in my name?

If you contributed financially to a property that is in your partner’s sole name – for example, by paying towards the deposit, the mortgage, or substantial renovations – you may be able to establish a ‘beneficial interest’ through a resulting trust or constructive trust. This is done through a TOLATA claim. The court will consider the nature and extent of your financial contributions, any agreement (express or implied) about ownership, and whether you acted to your detriment in reliance on a shared understanding that you would have a stake in the property.

This is not straightforward. The burden of proof is on the person claiming the interest, the evidence requirements are demanding, and the outcome is uncertain. A contested TOLATA claim can cost tens of thousands of pounds and take twelve months or more to resolve.

I have had a number of clients over the years who presume they have a resulting trust arising from their having contributed to the deposit or the purchase price of a property.  Unfortunately, no such presumption exists.

3. What about savings, investments and personal assets?

Savings and investments belong to whoever’s name they are in. Joint accounts are presumed to be owned equally. There is no mechanism for the court to redistribute savings, investments or other personal assets between unmarried partners on the basis of fairness or need, as it can in a divorce. If you have contributed to savings or investments held in your partner’s name, you would need to establish a claim based on trust law principles – which is difficult and expensive.

4. Can I claim maintenance from my ex-partner?

No. There is no right to spousal maintenance for unmarried partners in England and Wales. Unlike a divorcing spouse, you cannot ask the court to order your former partner to support you financially after separation. The only financial claims available are for children (through the Child Maintenance Service or Schedule 1 of the Children Act 1989) and property claims under TOLATA.

5. What about the children?

Your rights and responsibilities as parents are identical to those of married parents. Both parents have a duty to support their children financially, and both can apply for a Child Arrangements Order to determine where the children live and how much time they spend with each parent. For higher-income families, Schedule 1 of the Children Act 1989 allows the court to order housing, maintenance and lump sums for the benefit of the child. This is often the most significant financial provision available to an unmarried parent on separation.

6. What should I do right now if we are separating?

Take these steps immediately:

• Get legal advice from a specialist cohabitation solicitor before agreeing anything or leaving the property.
• If your name is not on the property title but you believe you have a beneficial interest, register a restriction at the Land Registry to prevent a sale without your knowledge.
• Gather evidence of your financial contributions: bank statements, mortgage payments, receipts for renovations, and any written communications about ownership.
• Do not move out of the property without legal advice. Leaving may weaken your position.
• If you have children, prioritise agreeing living arrangements. The court’s paramount concern is always the children’s welfare.

Separating from a partner, no matter how long the relationship, is a major life change. Taking these steps that can ensure stability for your children and the protection of your finances. Clients that act quickly often find that they save considerable time, stress and money on resolving matters.

7. How can I prevent this situation in the future?

A cohabitation agreement, drafted by a solicitor with independent legal advice for both parties, is the most effective way to protect yourself. It sets out in advance how property, finances and practical matters will be handled on separation. It is significantly cheaper and less stressful than a contested TOLATA claim after the event. If you already own a property together, a declaration of trust recording each partner’s share is essential.

If your cohabiting relationship has broken down and you need advice about your property rights and financial position, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Question

Q: Do common law partners have legal rights in England and Wales?

A: No. There is no such thing as a ‘common law marriage’ in England and Wales. Cohabiting couples do not have the same legal rights as married couples or civil partners, regardless of how long they have lived together. An unmarried partner has no automatic right to the other’s property, pension, savings or inheritance.

One of the most persistent and damaging myths in English family law is the belief that living together for a long period creates a ‘common law marriage’ with legal protections similar to those enjoyed by married couples. It does not. I see the consequences of this misunderstanding regularly in my practice, and the financial and emotional cost to the partner who assumed they were protected can be devastating.

Below, I address the questions I am most frequently asked about the legal position of unmarried, cohabiting couples in England and Wales – and what you can do to protect yourself.

1. Is common law marriage a real thing in England and Wales?

No. The term ‘common law marriage’ has no legal status in England and Wales. A 2019 British Social Attitudes Survey found that 46% of the population wrongly believed it did. Whether you have lived together for two years or twenty, you do not acquire the financial rights or legal protections that come with marriage. This is not a technicality – it fundamentally affects what happens to your property, your finances and your future if the relationship ends.

I have had multiple clients make contact believing they are entitled to financial provision from a long-term partner when in reality, they are not. Conversely, I am also regularly approached by clients who believe they are required to make significant financial provision when they are not.

2. What rights do cohabiting couples actually have?

The short answer is: very few compared to married couples. An unmarried partner cannot claim spousal maintenance, has no automatic right to a share of the other’s property (regardless of how long they may have lived there), has no entitlement to a share of the other’s pension, and has no automatic right to inherit if the other partner dies without a will. The only legal routes available are claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for property disputes, claims for children under Schedule 1 of the Children Act 1989, and in some cases a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if a partner dies.

3. What happens to the family home if we split up?

This depends entirely on whose name is on the legal title. If the property is in your partner’s sole name, you have no automatic right to remain in the property or to any share of its value – even if you paid towards the mortgage, funded renovations, or lived there for years. If the property is in joint names, the starting point is equal ownership, but this can be displaced by a declaration of trust or evidence of a different intention.

If you believe you have contributed to a property that is not in your name, you may be able to establish a ‘beneficial interest’ through a resulting trust or constructive trust under TOLATA. This requires evidence of financial contributions or a shared intention to own the property together. It is a complex, costly and uncertain process – which is precisely why a cohabitation agreement is so important.

What many people do not realise is that even if both parties are responsible for the payment of a mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit or indeed the purchase of a property.

4. Can I claim a share of my partner’s pension?

No. Unlike in a divorce, there is no mechanism for pension sharing between unmarried partners. If your partner has a substantial pension and you have been out of the workforce raising children, the pension remains entirely theirs. This is one of the most significant financial disadvantages of cohabitation compared to marriage, and one that many people only discover when it is too late.

5. What if we have children together?

Your rights and responsibilities as parents are the same whether you are married or not. Both parents can apply to the Court for a Child Arrangements Order, and both have a duty to support their children financially. The key difference is that an unmarried parent cannot make a financial claim for their own benefit (spousal maintenance) – only for the children. Under Schedule 1 of the Children Act 1989, the court can order maintenance, lump sums and housing provision for the benefit of a child, which in practice may result in the parent with care living in a property funded by the other parent until the child reaches adulthood.

6. What happens if my partner dies without a will?

If your partner dies without a will, the rules of intestacy apply. These rules make no provision for cohabiting partners. The estate passes to the deceased’s children, parents, siblings or other blood relatives – not to the surviving partner. You may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but you must prove that you were maintained by the deceased or had lived together as husband and wife (or civil partners) for at least two years. The threshold is higher and the outcome less certain than for a surviving spouse.

7. How can I protect myself?

The single most important step you can take is to enter into a cohabitation agreement. This is a written document, drafted by a solicitor, that sets out how you and your partner will manage your finances, property and practical arrangements during the relationship and on separation. You should also ensure the legal title to any property reflects the true ownership (or is supported by a declaration of trust), make a will, and review your life insurance and pension nominations.

Cohabitation Agreements are legally binding documents that can go into very specific detail as to how couples own property, manage their finances and divide assets should the relationship break down. It can detail who is responsible for mortgage and bill payments as well as who owns specific personal belongings such as vehicles, furniture or even pets.

If you are in a cohabiting relationship and want to understand your legal position, or if your relationship has ended and you need advice about your rights, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Questions