The Government consultation on TOLATA – Practical Implications for Property Lawyers

The Ministry of Justice’s consultation A Fairer End to Relationships (launched 5 June 2026, closing 14 August 2026) revisits cohabitation law reform in England and Wales. For nearly two decades, the law has been criticised for failing to reflect modern family life, given rising numbers of unmarried couples and persistent misconceptions about “common law” rights.

The proposals link three reform areas: financial remedies on divorce/dissolution; cohabitants’ rights on separation; and cohabitants’ rights on intestacy. For property lawyers, the proposals for rights on separation deserve particular attention.

The Current Legal Position on Separation and its Difficulties

Unlike married couples and civil partners, cohabitants do not benefit from a comprehensive statutory regime governing the financial consequences of relationship breakdown. As the consultation document notes, the current law was not designed with cohabitants specifically in mind.

Claims made via the Civil Courts are based on property ownership and their scope is significantly more limited in the types of order that can be made.

The persistent myth of the “common law spouse” continues to cause confusion among the public. No such legal status exists. Regardless of the duration of a relationship, cohabitants generally acquire no automatic rights to share property or assets simply by virtue of living together.

Absent an uncontentious express deed of trust, in practice, TOLATA claims in the domestic context are often argued over the existence and detail of common intention constructive trusts, less frequently, proprietary estoppel (with its own requirements of assurance, detrimental reliance and unconscionability), and rarer still resulting trusts. Disputes are often uncertain, complex and costly, particularly for vulnerable litigants to understand or appreciate what their legal position and its merits may be.

The leading authorities on constructive trusts, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, established that the Court may infer a common intention from the parties’ conduct and, where a common intention constructive trust is established but the parties’ actual intentions as to shares cannot be discerned, may impute an intention for the purpose of quantifying beneficial interests.

Where legal title is held in joint names with no declaration of beneficial interests, the presumption is that beneficial ownership is held jointly in equal shares unless otherwise proved. Where it is clear that beneficial interests are to be shared, but the common intention about the proportions in which they are to be shared is not clear, each party will be entitled to a share that the court considers fair having regard to the whole course of dealing between them in relation to the property. Disputes are though always highly fact-sensitive and often difficult to predict.

Further, unlike in other jurisdictions, the existing law does not currently provide a fully binding statutory regime for parties to enter into pre-nuptial or cohabitation agreements to manage their financial arrangements, although such agreements may be given significant weight in any subsequent dispute.

The court’s task in a TOLATA claim is not to achieve fairness in the broad family law sense. Rather, it is to determine the parties’ beneficial interests in the property. The focus is therefore on ownership, intentions and contributions, rather than needs, relationship sacrifice or future financial security.

While Schedule 1 to the Children Act 1989 may provide limited financial relief for the benefit of children, there is no general right for a cohabitant to seek financial provision comparable to that available on divorce or dissolution.

The Consultation Proposals for Cohabitants on Separation

The Government acknowledges that current law offers limited protection and can leave vulnerable parties facing significant financial hardship following relationship breakdown. A new statutory framework would apply automatically to eligible cohabiting couples and provide for opt-out rather than opt-in. The framework would remain distinct from marriage/civil partnership and would not replicate the full range of financial remedies available on divorce or dissolution.

Qualifying criteria: The proposed framework will only apply to relationships where two people are living together as a couple in an enduring family relationship, with or without children. The intention is to ensure the framework applies to cohabitants who are in romantic, committed, long-term interdependent relationships. It would not apply to other shared living arrangements, such as siblings or flatmates. Factors to take into account would include, non-exhaustively: existence of a joint household; stability of the relationship; financial arrangements; responsibility for children; presence of a sexual relationship; public recognition of the relationship. Questions may well arise on the possibility of exploitation of vulnerable individuals and the ease of proving marriage/civil partnership compared to the potential difficulties establishing qualifying cohabitants under the proposals.

Age and duration/time limits: Consistent with marriage or civil partnership, the proposals envisage a minimum age of 18, with couples living together for a minimum of three years or no minimum duration where the couple live together and have had a child or if there is a child present considered to be a member of the family. Further thought perhaps might be given to whether protections should be extended to those with children who are 16 or 17, but the three year duration otherwise seeks to strike a balance to include vulnerable individuals in need of protection whilst recognising that relationships should demonstrate commitment and interdependence. Setting a fixed period provides certainty for public confidence on when rights would apply, but there may well remain uncertainty and arguments in practice on when time has started to run. The Government proposes a two-year time limit to bring a financial claim after a cohabiting relationship has ended, even where individuals continue to live in the same property, even though their relationship has ended. Again, practical issues may arise on when time starts for this purpose.

Needs-based approach: Based on existing financial remedies law, broadly mirroring section 25 of the Matrimonial Causes Act 1973, this is to be the guiding principle for determining outcomes when cohabitants separate, more narrowly defined than on divorce, excluding discretionary needs (considered comforts rather than necessities), so there would be no starting assumption of a 50:50 split of relationship assets. Children’s needs would come first, then the individuals’ own financial needs. The factors for each person’s circumstances would include: earning capacity; financial resources; any physical or mental disability; age; and relationship length. Domestic abuse and misconduct could also be considered.

Opting out: Qualifying cohabitants would be covered by the framework by default, but they could choose to opt out if they mutually agree to do so. The rationale is directed specifically towards the common law marriage myth and to protect those who may be financially vulnerable. There are good reasons to prefer an opt-in by default, rather than alternatives such as cohabitation agreements, which can be unattractive because they are costly, or seen as unromantic, unnecessary or because couples tend to assume they will not separate and so do not plan for it. Proposed safeguards to opt outs include execution as a deed and material financial disclosure of the other party’s financial situation, along with independent legal advice, with no ability to waive their rights to disclosure or advice.

Remedies: The proposals include access to a broad set of remedies which reflect what is available on divorce, including property adjustment orders, lump sum orders and pension sharing orders. Provision for maintenance orders would be available but only in exceptional circumstances, because unlike marriage or civil partnership the cohabitants have not entered any legal union and ongoing financial obligations between them should end as soon as is just and reasonable, in line with the proposals based on needs. No greater outcome would be permitted than would have been reasonably ordered if the parties had been married or civil partnered, to protect the distinct status of marriage.

Venue: Under the proposed framework, the Family Courts would hear financial disputes between qualifying cohabitants. The existing position under the TOLATA in the Civil Courts would remain for those who do not meet the eligibility criteria, those who are time barred from making a cohabitation claim, or for those who have opted out. Whilst TOLATA and the Civil Courts still have their place, it seems that the burden of relationship breakdown would more likely fall to the already busy Family Courts to determine. Property lawyers could also still be involved directly in third party TOLATA applications forming part of cohabitation proceedings, the example the consultation gives being if there is a dispute about whether a person outside the relationship has a beneficial interest in a property owned by a cohabitant.

Practical Implications for Property Lawyers

Clients purchasing property with unmarried partners will still benefit from advice about entering into declarations of trust, whether current cohabitation agreements work for them, ensuring they keep clear records of financial contributions, along with reviewing ownership arrangements where appropriate.

The consultation represents the most substantial reform opportunity since the Law Commission’s 2007 report. If implemented, the changes could reduce reliance on TOLATA and introduce a tailored framework based on needs, providing remedies not previously available to cohabitants.

For property lawyers, the challenge will be navigating traditional trust and TOLATA principles alongside any new statutory rights. Ownership disputes are unlikely to disappear. The legal context in which they are resolved may soon look different, but this will present opportunities for property lawyers to expand their current practice beyond TOLATA and dealing only with parties’ strict property rights.

The consultation is available at https://www.gov.uk/government/consultations/a-fairer-end-to-relationships.

Article written by Carl Brewin.