At a Glance
- You cannot get a consent order if you were not married. A financial consent order is part of a divorce or the dissolution of a civil partnership.
- There is no such thing as common law marriage in England and Wales, however long you lived together.
- Unmarried couples have no automatic financial claims against each other on separation.
- What you can do instead: a separation agreement, a declaration of trust, a property claim under TOLATA, or a claim for the children.
- Claims for children are different. Child maintenance and, in some cases, capital provision for a child are available whether or not you married.
Quick Answer
No. A consent order is a financial order made in divorce or dissolution proceedings, so if you were never married or in a civil partnership there is no case for the court to make one in. That does not leave you with nothing, but the routes are different: an agreement between you, a declaration of trust over property, a property claim under TOLATA, or a claim on behalf of a child.
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People ask about a consent order if not married for a good reason. They have separated, they own things together, and they want the same thing a divorcing couple wants: a document that draws a line and cannot be reopened.
The answer is that the specific tool is not available to you, and the reason is worth understanding, because it explains what is available.
Why a consent order needs a marriage
The court’s power to make a financial consent order comes from the Matrimonial Causes Act 1973. That Act deals with marriage and its ending. The equivalent provisions for civil partnerships sit in the Civil Partnership Act 2004.
A consent order is made within proceedings. If there is no divorce or dissolution, there are no proceedings, so there is nothing for the order to attach to. It is not a rule about fairness, it is a rule about jurisdiction.
Common law marriage does not exist
This is the single most widely believed myth in family law in England and Wales. Living together for two years, ten years or thirty years does not create a marriage, and it does not create financial claims against each other. Having children together does not change that either, although it does open different routes for the children themselves.
What is available instead
| Route | What it does | How binding is it |
|---|---|---|
| Separation agreement | Records what you have agreed about property, savings, debts and possessions. Sometimes called a cohabitation separation agreement. | A contract rather than a court order. Not automatically enforceable in the way an order is, but given real weight where both of you had independent advice, disclosed your finances and were not pressured. |
| Declaration of trust | Sets out the shares in which a property is held, and what happens on a sale. | Strong. It is the document a court will look to first when deciding who owns what share of a property. |
| TOLATA claim | A court application about a shared property where you cannot agree who owns what or whether it should be sold. | A court order, but it decides ownership rather than dividing assets fairly. It asks who owns what, not who needs what. |
| Child maintenance | Regular payments for a child, arranged between you or through the Child Maintenance Service. | Available whether or not you were married. |
| Schedule 1 Children Act claim | A claim for financial provision for a child, which can include housing for the child during their minority. | A court order. For the benefit of the child rather than the parent, and the housing usually reverts when the child grows up. |
The difference that matters most is the one in the TOLATA row. Divorce law asks what is fair, taking into account need, contributions and the length of the relationship. Property law asks who owns what. For unmarried couples, the second question is usually the only one on the table, and the answers can feel very different.
“The conversation we have most often with people who lived together for years is not about the law being complicated. It is about the gap between what they assumed the law was and what it actually is. That is a difficult conversation, and it is much better had before someone moves out.”
Jess Knauf, Director of Client Strategy
How to make an agreement stick
Since a court order is not available, the quality of your agreement is what protects you. A separation agreement carries weight where four things are true.
- Both of you disclosed your finances honestly. An agreement based on incomplete information is the easiest kind to challenge.
- Both of you had the chance to take independent legal advice. Not necessarily that you did, but that you could have.
- Neither of you was pressured, and it was not signed at the last minute under duress.
- It is in writing, signed and dated, and ideally executed as a deed.
Where a property is involved, pair the agreement with a declaration of trust and, if the shares are changing, deal with the Land Registry entry at the same time. An agreement that says one thing and a title register that says another causes problems years later.
Not agreed everything yet?
Mediation works just as well for unmarried couples, and it is usually quicker and less expensive than a property claim through the courts. A mediator can help you reach an agreement that can then be written up properly.
If you are engaged, or planning to marry
If you are separating before a planned marriage, you are in the unmarried category and the routes above apply. If you are together and thinking ahead, a cohabitation agreement now does the job a consent order would do later, and it is far easier to write while you are both content.
What changes if you do marry
Marriage brings the financial claims that cohabitation does not: claims for a lump sum, property adjustment, pension sharing and maintenance. It also brings the ability to dismiss all of those permanently with a clean break consent order at the end. Our page on what consent orders are explains how that works, and the clean break consent order covers the dismissal itself.
Frequently asked questions
Can you get a consent order if you are not married?
No. A financial consent order is made within divorce or dissolution proceedings under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004. Without a marriage or civil partnership to end, there are no proceedings for the order to sit in.
Is there such a thing as common law marriage in the UK?
Not in England and Wales. However long you have lived together, you do not acquire the financial claims that married couples have. Scotland has some limited provision for cohabitants, which is a separate system.
What can unmarried couples do instead?
A separation agreement recording what you have agreed, a declaration of trust setting out property shares, a TOLATA claim if you cannot agree about a property, and claims relating to any children. Which combination fits depends on what you own and whether you have children.
Is a separation agreement legally binding?
It is a contract rather than a court order, so it is not enforceable in exactly the same way. A court will give it real weight where both of you disclosed your finances, both had the opportunity to take independent advice, and neither was pressured into signing.
Can I claim maintenance from an ex-partner I was not married to?
Not for yourself. Spousal maintenance is only available between spouses and civil partners. Child maintenance is different and is available whether or not you were married, either by agreement or through the Child Maintenance Service.
What is a TOLATA claim?
An application under the Trusts of Land and Appointment of Trustees Act 1996, used where people who own property together cannot agree on their shares or on whether it should be sold. It decides ownership rather than dividing assets according to need.
Does having children together give us the same rights as married couples?
No, not between the adults. It does open routes for the children, including child maintenance and, in some cases, a claim under Schedule 1 of the Children Act 1989 which can provide housing for a child during their minority. Those claims belong to the child rather than to you.
We are separating and we own a house together. Where do we start?
Start with the title register and any declaration of trust, because they set the starting point. Then work out what you both want to happen to the property. Mediation is usually a faster and cheaper way to reach that agreement than a court claim, and the agreement can be written up properly afterwards.
Where to go from here
You cannot get a consent order, but you can get a clear, well-documented agreement, and for most separating couples that is what they actually wanted. Reach the agreement first, then have it recorded properly, and deal with the property paperwork at the same time rather than leaving it for later.
Want advice on your position?
Where a property is in one name, or the contributions were uneven, an hour with a family lawyer is usually money well spent before you agree anything.
About the author
Jess Knauf is the Director of Client Strategy at Mediate UK and co-founder of Family Law Service. With over six years’ experience in family mediation, Jess is focused on making family law easy to understand and accessible, and is the author of The Complete Guide to Divorce in England and Wales.