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Resolution’s third edition of its Cohabitation Law and Practice Handbook comes at an opportune time. It illuminates the current unsatisfactory, and far from straightforward, law faced by unmarried cohabitants; an area, at least in respect of real property, memorably described by Carnwath LJ in Stack v Dowden [2005] EWCA Civ 857 as:
‘ a witch’s brew into which various esoteric ingredients have been stirred over the years, and in which different ideas bubble to the surface at different times ’.
He characterised many of the legal concepts in play, as ‘likely to mean nothing to laymen, and often little more to the lawyers who use them’. As to the latter point, a close reading of the Resolution handbook would certainly assist.
However, the real problem is not simply that the law is complex, but that it provides limited remedies for long-term cohabitants at the end of their relationship.
The identification of this lacuna in the law is not new. The courts have suggested this is an area that should be looked at by Parliament for more than 40 years – from at least the Court of Appeal’s decision in Burns v Burns [1984] Ch 317.
Two Law Commission reports have looked at it: in 2007 and 2011. Yet in neither case did the government choose to act.
The current government has now promised to address the issue. Labour’s manifesto spoke of strengthening the rights and protections of women in cohabiting relationships. In February the government announced it would be launching a consultation later this year to ‘build public consensus on what cohabitation reform should look like’. It is understood this remains the government’s intention, but no further detail of the nature and timing of this consultation has been forthcoming to date.
To illustrate the problem, take the following, far from fanciful, scenario: An unmarried couple, Patrick and Valerie, split up after 25 years and two children.
During their relationship they buy a home. At the time of purchase Valerie was not working. She had given up her career just after the birth of the couple’s second child. As Patrick was the sole earner at this point, the home was bought in his sole name. The purchase price was made up of a small deposit from Patrick’s savings and a mortgage.
By the time they separate, both children are adults and Valerie has gone back to relatively modestly paid employment. Previously she was the full-time carer for the children and looked after the home. When working all of Valerie’s income was applied to family expenses.
In the meantime, Patrick has developed a successful career in well-paid employment and has some reasonable savings and decent pension provision.
At first blush, this is a fairly clear case of relationship-based financial disadvantage. In the given situation, this disadvantage has arisen from the best of intentions. But, as is now more readily recognised, such disadvantage can also arise because of economic abuse and coercive control. The economic choices in the relationship thus being far from purely voluntary.
Surely this is something the courts should be able to address if the relationship breaks down? All the more so if there has been an abusive element within the family dynamic.
While the courts do have wide powers if the parties in our example had been married or in a civil partnership, this is not the case where the parties are simply cohabiting – however long and settled that cohabitation may have been.
The court has no discretionary powers in respect of the parties’ property or financial resources at the point of relationship breakdown.
The court is limited to dividing Patrick and Valerie’s property under the principles of property law, where, on the face of it, everything of value is owned by Patrick.
Valerie could make a claim to the family home alleging a common intention constructive trust. But without being able to show a direct contribution to the purchase price or mortgage payments, or evidence of a specific agreement to share combined with detrimental reliance, she is unlikely to succeed.
Moreover, with her children now adult Valerie has no recourse to child support or housing provision via Schedule 1 of the Children Act 1989.
The astute will readily recognise that the example given is similar to the facts of Burns v Burns [1984] Ch 317. In 1983 the unmarried Ms Burns got nothing despite the clear sympathy of the court. Hence the encouragement of Parliament to act.
The House of Lords and Supreme Court have since stated, in Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53, both cases dealing with homes in joint names, that in single name cases the law has ‘moved on’. However, they did not specify how.
It is true that the common intention constructive trust has developed and in cases where properties are in joint names the starting, and usually finishing point, is now 50:50 ownership. However, for someone in Valerie’s position, not on the title and economically unable to make a direct financial contribution to purchase, despite their economic sacrifices in the relationship, little has changed.
Valerie, in 2025, would almost certainly find herself in exactly the same position as Ms Burns did 40+ years earlier: with no interest in the home and no other financial compensation on leaving the relationship.
Yet, outside legal circles, this is not widely appreciated. Many members of the public would likely say the parties in our example are in a ‘common law marriage’.
There is, of course, no such thing. Yet, this myth is both persistent and widespread. In research published in 2019 some 46% of respondents believed that longstanding cohabitants form a ‘common law marriage’ and thus presumably believe they have the same or similar rights as married persons.
Only 41% of respondents correctly identified there was no such thing as common law marriage – the remainder presumably having no idea one way or the other.
Sadly, there is little reason to believe the general public are better informed in 2025. Moreover, in some communities people may believe they are married by reason of religious ceremonies which are in fact not legally recognised as marriages under the law of England and Wales.
This problem is not going away. The most recent government statistics suggest that, as of 2022, 22% of couples living together are not married or in a civil partnership. This had increased by 144% since 1996. It is by far the fastest growing type of cohabitation arrangement. Further, it does not appear the availability of civil partnerships for opposite sex couples has had any meaningful impact on this trend.
Reform in this area is long overdue. It is currently the number one lobbying priority for Resolution. The precise form reform will take must be the subject of proper debate, but that should not be an impediment.
The issue has been addressed in other jurisdictions that both share our common law heritage, Australia, and those that share our island, Scotland.
It is surely now time to act. Cohabiting couples deserve better than to be left on the blasted heath with the existing witch’s brew for another four decades. Indeed, is it not ironic that if our cohabitants lived in the land of that most famous of witch’s brews a statutory remedy would already exist.
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Christopher Stirling is a barrister at Field Court Chambers in London and a door tenant at 1 Crown Office Row in Brighton. He is one of the contributors to Resolution’s Cohabitation Law and Practice, 3rd Edition.
Resolution’s third edition of its Cohabitation Law and Practice Handbook comes at an opportune time. It illuminates the current unsatisfactory, and far from straightforward, law faced by unmarried cohabitants; an area, at least in respect of real property, memorably described by Carnwath LJ in Stack v Dowden [2005] EWCA Civ 857 as:
‘ a witch’s brew into which various esoteric ingredients have been stirred over the years, and in which different ideas bubble to the surface at different times ’.
He characterised many of the legal concepts in play, as ‘likely to mean nothing to laymen, and often little more to the lawyers who use them’. As to the latter point, a close reading of the Resolution handbook would certainly assist.
However, the real problem is not simply that the law is complex, but that it provides limited remedies for long-term cohabitants at the end of their relationship.
The identification of this lacuna in the law is not new. The courts have suggested this is an area that should be looked at by Parliament for more than 40 years – from at least the Court of Appeal’s decision in Burns v Burns [1984] Ch 317.
Two Law Commission reports have looked at it: in 2007 and 2011. Yet in neither case did the government choose to act.
The current government has now promised to address the issue. Labour’s manifesto spoke of strengthening the rights and protections of women in cohabiting relationships. In February the government announced it would be launching a consultation later this year to ‘build public consensus on what cohabitation reform should look like’. It is understood this remains the government’s intention, but no further detail of the nature and timing of this consultation has been forthcoming to date.
To illustrate the problem, take the following, far from fanciful, scenario: An unmarried couple, Patrick and Valerie, split up after 25 years and two children.
During their relationship they buy a home. At the time of purchase Valerie was not working. She had given up her career just after the birth of the couple’s second child. As Patrick was the sole earner at this point, the home was bought in his sole name. The purchase price was made up of a small deposit from Patrick’s savings and a mortgage.
By the time they separate, both children are adults and Valerie has gone back to relatively modestly paid employment. Previously she was the full-time carer for the children and looked after the home. When working all of Valerie’s income was applied to family expenses.
In the meantime, Patrick has developed a successful career in well-paid employment and has some reasonable savings and decent pension provision.
At first blush, this is a fairly clear case of relationship-based financial disadvantage. In the given situation, this disadvantage has arisen from the best of intentions. But, as is now more readily recognised, such disadvantage can also arise because of economic abuse and coercive control. The economic choices in the relationship thus being far from purely voluntary.
Surely this is something the courts should be able to address if the relationship breaks down? All the more so if there has been an abusive element within the family dynamic.
While the courts do have wide powers if the parties in our example had been married or in a civil partnership, this is not the case where the parties are simply cohabiting – however long and settled that cohabitation may have been.
The court has no discretionary powers in respect of the parties’ property or financial resources at the point of relationship breakdown.
The court is limited to dividing Patrick and Valerie’s property under the principles of property law, where, on the face of it, everything of value is owned by Patrick.
Valerie could make a claim to the family home alleging a common intention constructive trust. But without being able to show a direct contribution to the purchase price or mortgage payments, or evidence of a specific agreement to share combined with detrimental reliance, she is unlikely to succeed.
Moreover, with her children now adult Valerie has no recourse to child support or housing provision via Schedule 1 of the Children Act 1989.
The astute will readily recognise that the example given is similar to the facts of Burns v Burns [1984] Ch 317. In 1983 the unmarried Ms Burns got nothing despite the clear sympathy of the court. Hence the encouragement of Parliament to act.
The House of Lords and Supreme Court have since stated, in Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53, both cases dealing with homes in joint names, that in single name cases the law has ‘moved on’. However, they did not specify how.
It is true that the common intention constructive trust has developed and in cases where properties are in joint names the starting, and usually finishing point, is now 50:50 ownership. However, for someone in Valerie’s position, not on the title and economically unable to make a direct financial contribution to purchase, despite their economic sacrifices in the relationship, little has changed.
Valerie, in 2025, would almost certainly find herself in exactly the same position as Ms Burns did 40+ years earlier: with no interest in the home and no other financial compensation on leaving the relationship.
Yet, outside legal circles, this is not widely appreciated. Many members of the public would likely say the parties in our example are in a ‘common law marriage’.
There is, of course, no such thing. Yet, this myth is both persistent and widespread. In research published in 2019 some 46% of respondents believed that longstanding cohabitants form a ‘common law marriage’ and thus presumably believe they have the same or similar rights as married persons.
Only 41% of respondents correctly identified there was no such thing as common law marriage – the remainder presumably having no idea one way or the other.
Sadly, there is little reason to believe the general public are better informed in 2025. Moreover, in some communities people may believe they are married by reason of religious ceremonies which are in fact not legally recognised as marriages under the law of England and Wales.
This problem is not going away. The most recent government statistics suggest that, as of 2022, 22% of couples living together are not married or in a civil partnership. This had increased by 144% since 1996. It is by far the fastest growing type of cohabitation arrangement. Further, it does not appear the availability of civil partnerships for opposite sex couples has had any meaningful impact on this trend.
Reform in this area is long overdue. It is currently the number one lobbying priority for Resolution. The precise form reform will take must be the subject of proper debate, but that should not be an impediment.
The issue has been addressed in other jurisdictions that both share our common law heritage, Australia, and those that share our island, Scotland.
It is surely now time to act. Cohabiting couples deserve better than to be left on the blasted heath with the existing witch’s brew for another four decades. Indeed, is it not ironic that if our cohabitants lived in the land of that most famous of witch’s brews a statutory remedy would already exist.
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Little has changed since Burns v Burns . Cohabiting couples deserve better than to be left on the blasted heath with the existing witch’s brew for another four decades, argues Christopher Stirling
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