Introduction
The structure of families in England and Wales has changed significantly in recent decades, with a substantial increase in the number of cohabiting couples. Despite this social shift, the law has not kept pace, and couples who live together without marrying or entering a civil partnership have very limited legal protection if their relationship breaks down. Unlike married couples, whose financial settlements on divorce are governed by the Matrimonial Causes Act 1973, cohabitants must rely on complex and often uncertain principles of property and trust law. This situation is made worse by the widespread and mistaken belief in "common law marriage," which leads many to assume they have rights they do not possess. This essay will argue that reform is necessary to address the injustice and hardship frequently caused by the current legal framework. It will examine the problems with the existing law, consider the proposals for reform, and evaluate the arguments against legislative change. It will conclude that a balanced reform, such as an 'opt-out' scheme, is needed to provide a safety net for vulnerable individuals while still respecting the autonomy of couples who choose not to marry.
The Inadequacy of the Current Law
When a cohabiting relationship ends, any dispute over the ownership of a shared home must be resolved using the principles of land law and trusts. This legal framework was not designed to deal with the breakdown of modern family relationships and often produces results that seem unfair. The primary legal tools available are the resulting trust and the constructive trust, with proprietary estoppel offering an alternative, though equally complex, route to a claim.
Resulting trusts are now rarely used in this context, following the landmark House of Lords decision in Stack v Dowden (2007). In that case, the court confirmed that in cases involving a family home, the starting point is to look for a constructive trust based on the parties' "common intention". The Supreme Court in Jones v Kernott (2011) clarified this approach. Where a property is in joint names, there is a strong presumption that the parties intended to share the beneficial interest equally. To rebut this, a party must show that they had a different common intention, either at the time of purchase or one that developed later. Where the property is in one person's sole name, the non-legal owner must prove there was a common intention that they should have a beneficial interest, and that they acted to their detriment in reliance on this intention.
The "common intention" test is the source of much of the difficulty. Courts must try to work out what the couple intended, often many years after the event and in the absence of any written agreement. While the court can consider the "whole course of dealing" between the parties, including non-financial contributions, it is often difficult for a claimant to provide sufficient evidence. A partner who stayed at home to care for children and run the household, thereby enabling the other partner to earn money and pay the mortgage, may find their contributions are not seen as sufficient to establish a common intention to share the property (Douglas et al, 2011). This can lead to significant injustice, particularly for women who are more likely to have taken on these roles. As Baroness Hale stated in Stack v Dowden (2007), "the law has moved on" from a purely financial assessment, but proving a common intention remains a significant hurdle. This leads to uncertainty, lengthy and costly litigation, and outcomes that do not reflect the reality of the parties' contributions to the relationship.
The Social and Legal Case for Reform
The primary argument for reform is to remedy the potential for injustice under the current law. The existing rules fail to protect the economically weaker party upon relationship breakdown. The contrast with the law for married couples is stark. On divorce, the court has a wide discretion under the Matrimonial Causes Act 1973 to redistribute property and assets to achieve a fair outcome, taking into account all the circumstances of the case, including the needs of any children. A cohabitant has no such entitlement to maintenance or a share of their former partner's assets, regardless of the length of the relationship or the sacrifices they made.
This lack of protection is compounded by the "common law marriage myth". A 2019 British Social Attitudes survey found that 46% of people in England and Wales believe that unmarried couples who live together for a certain amount of time have a "common law marriage" and share the same rights as married couples (NatCen Social Research, 2019). This misunderstanding leaves individuals in a vulnerable position, as they do not take steps to protect their interests, such as drawing up a cohabitation agreement, because they believe the law already protects them.
In response to these problems, the Law Commission published a report in 2007, Cohabitation: The Financial Consequences of Relationship Breakdown. It recommended the introduction of a new statutory scheme to provide remedies for eligible cohabitants. To be eligible, couples would either have to have a child together or have lived together for a minimum period (suggested to be between two and five years). The scheme would allow a court to make an order if the claimant could show they had made "qualifying contributions" to the relationship which had resulted in the other partner retaining a financial benefit, or had given the claimant a continuing economic disadvantage. The aim was not to replicate the law of divorce, but to redress specific economic injustices. Crucially, the Law Commission proposed that couples could "opt out" of the scheme by signing a written agreement. Despite these measured proposals, the government at the time decided not to implement them, a position that subsequent governments have maintained. However, the issue has not gone away, with the Cohabitation Rights Bill, a Private Member's Bill, being repeatedly introduced in Parliament, and a 2022 report from the Women and Equalities Committee again calling for the implementation of an opt-out scheme (Women and Equalities Committee, 2022).
Arguments Against Reform
Despite the strong case for reform, there are significant counterarguments. The most powerful is the argument from autonomy. Opponents of reform argue that people who choose not to marry are deliberately opting out of the legal and financial commitments that marriage entails. Imposing a marriage-like regime upon them would disrespect their freedom of choice and personal autonomy (Barlow and Probert, 2004). Marriage is a formal status that couples consciously enter into, aware of its legal consequences. To automatically apply a similar status to cohabitants could be seen as an unwelcome intrusion by the state into private relationships.
Related to this is the argument that reform would undermine the institution of marriage. If cohabitation offered similar legal protections to marriage, it might reduce the incentive for couples to marry, thereby devaluing its special status in society. Furthermore, there are practical difficulties in defining cohabitation. It can be difficult to determine at what point a relationship crosses the line from dating to cohabitation that should attract legal consequences, potentially leading to a flood of speculative claims.
However, these arguments can be countered. The argument for autonomy assumes that both partners have made a conscious and informed decision not to marry and to accept the legal consequences. This is often not the case, as evidenced by the prevalence of the common law marriage myth. The Law Commission's proposed opt-out scheme directly addresses the autonomy argument by allowing couples who genuinely wish to keep their affairs separate the freedom to do so. The proposals also deal with the definition problem by setting clear eligibility criteria, such as having a child together or cohabiting for a minimum period.
Conclusion
The current law governing cohabiting couples in England and Wales is no longer fit for purpose. It relies on complex and uncertain property law doctrines that were not designed for the breakdown of modern family relationships and often fail to deliver fair outcomes. This can cause significant hardship and injustice, particularly for economically vulnerable partners who have made non-financial contributions to a long relationship. The widespread belief in the "common law marriage" myth exacerbates this problem, leaving many people with a false sense of security.
While arguments against reform based on personal autonomy and the status of marriage have some merit, they are not insurmountable. The need to protect vulnerable individuals and provide a remedy for clear injustice should be the priority. The proposals put forward by the Law Commission in 2007 offer a sensible and balanced solution. By creating a specific legal scheme for eligible cohabitants based on correcting economic advantage and disadvantage, rather than simply mimicking divorce law, it targets the key problems. Most importantly, the inclusion of an opt-out provision respects the autonomy of those couples who have made a deliberate choice to arrange their financial affairs independently. Therefore, there is a clear and pressing need for Parliament to legislate in this area to provide a modern legal framework that reflects the social reality of family life today.
References
Barlow, A. and Probert, R. (2004) 'Regulating cohabitation: from status to contract or contract to status?', in R. Probert (ed.) Family Life and the Law. Ashgate.
Douglas, G., Pearce, J. and Woodward, H. (2011) A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown. Cardiff Law School.
Jones v Kernott [2011] UKSC 53.
Law Commission. (2007) Cohabitation: The Financial Consequences of Relationship Breakdown. Law Com No 307. HC 427.
Matrimonial Causes Act 1973.
NatCen Social Research. (2019) British Social Attitudes 36: Common-law marriage and cohabitation. Available at: https://www.bsa.natcen.ac.uk/latest-report/british-social-attitudes-36/common-law-marriage-and-cohabitation.aspx (Accessed: 15 May 2024).
Stack v Dowden [2007] UKHL 17.
Women and Equalities Committee. (2022) The rights of cohabiting partners. First Report of Session 2022-23. HC 92.
