Contrary to popular belief, there is no such legal term as a ‘common law husband or wife’, this is simply a figure of speech which does not give either party any legal rights simply because they have cohabited. They have to rely on other legislation to assist them.

The only way to minimise what could be costly court cases when it comes to asset division after a separation, is to draft and execute a cohabitation agreement.

The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA)

A cohabitation agreement (a.k.a. a living together agreement or contract) will set out how a couple manage their money, property and other assets during a separation and can be made at any time during the relationship.

If a case comes to court, a cohabitation agreement is treated the same as any other contract, and can be challenged on the grounds of fraud, duress, undue influence, mistake and misrepresentation.

However, with Russells Solicitors overseeing your draft of the agreement, we will minimise the possibility for such challenges.

ToLATA gives courts certain powers to resolve disputes concerning the legal and beneficial ownership of land. In general applications of ToLATA are used to determine:

  • Who is entitled to occupy the land or property.
  • The extent of ownership.

These will determine how property is to be divided between the couple. In cases of unmarried cohabitation, this can mean all or nothing.

Drafting a cohabitation agreement is seen as highly relevant, and will greatly affect the outcome of ToLATA cases.

Dealing with a separation can be a highly troubling time for both the parents and the children involved. As such, it’s best to deal with these cases as swiftly and as delicately as possible.

When it comes to an unmarried, cohabiting couple, the laws are slightly different and couples are urged to formalise their relationship in order to avoid any complications that may arise as the result of a separation.

Whether the couple is married or not, children will be protected under the Children Act in order to ensure that they are safeguarded.

However, in the case of unmarried couples, fathers who have not registered themselves as the parent on the child’s birth certificate will not have parental responsibility.

At the same time, if the couple were to separate, the father would still be legally obliged to pay child support.

In situations where one partner owns the family home, things can become slightly more complicated. The parent responsible for taking care of the child can apply for financial provision, which could entail the transfer of the property.

A cohabitation agreement can establish the responsibilities of either party for current or future children, preventing unnecessary acrimony down the line.

Specialising in dealing with high profile clients from the music industry, and worlds of media and finance, we assure complete discretion and sensitivity to your situation.

To arrange a cohabitation agreement consultation, contact Carol Ellinas:


Phone: 020 7439 8692