There is the common misconception, the so-called “myth of common law marriage”, that cohabiting couples have the same or similar legal rights in relation to children, finances and property as if they were married.

By way of example, in Burns v Burns [1984] Ch 317 the parties were not married, though Valerie Burns took Patrick Burns’ last name. They had been in a relationship and lived together for 19 years. They also had two children. They moved to the family home together but it was in Mr Burns’ name and he paid the purchase price and the mortgage. Mrs Burns paid for redecoration, white goods, furniture, household bills whilst primarily bringing up their children. Mrs Burns applied to Court to determine whether she had a beneficial interest in the property under common intention constructive trust when they separated. In dismissing the appeal, it was held by Lord Justice May that:

when the house is taken in the man’s name alone, if the woman makes no ‘real’ or ‘substantial’ financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union”.

Whilst Burns was heard some 40 years ago, it remains legally relevant to cohabitation rights today, whether there is a dispute over ownership or occupation of the family home under TOLATA 1996 or a dispute about the children of the relationship under the Children Act 1989, Schedule 1. Put plainly, in a legal sense not much has changed.

Therefore upon relationship breakdown, former cohabiting couples cannot claim ongoing periodical payments by way of maintenance, share pensions or have the court divide their property equitably in the same way as their married counterparts. Any property adjustment order would also be limited in duration. Those that cohabit are therefore left at the mercy of the general law of property, trusts and contract, and common intention still provides the foundation for the determination of property ownership. Lord Justice May in Burns stated that:

when one compares this ultimate result with what it would have been had she been married to the respondent, and taken appropriate steps under the Matrimonial Causes Act, 1973, I think that she can justifiably say that fate has not been kind to her”.

Such a distinction clearly prevails today. 24.3% of people living as a couple are cohabiting (according to the Office for National Statistics’ 2021 Census, released this year) but we still rely on many laws that were not originally created in contemplation of cohabiting couples. Whilst cohabitants can make wills and sign cohabitation contracts, in practice, these agreements can be overlooked as couples are unlikely to take a legal view of the consequences in the event that their relationship breaks down, especially when the myth of common law marriage persists. Cohabiting couples are therefore left with a legal position that is insufficient and outdated.

An inquiry by the UK Parliament’s Women and Equalities Committee in 2021 found that the current law for cohabitants can be “costly, complicated and unfair” and that “the lack of legal protections” can mean that women suffer “relationship-generated disadvantage”. The Committee called for public awareness and targeted information campaigns (to tackle the common law marriage myth, for example) alongside a reform of family law and implementation of an opt-out cohabitation scheme as proposed in the Law Commission’s 2007 report.

The recognition of the issues faced by cohabiting couples upon relationship breakdown and the disposition towards legal reform was promising until the Government widely rejected these recommendations in November 2022. Not only did the Government opine that a national campaign was not “necessary” and refuse to take a view on implementing a targeted information campaign until a decision on marriage law reform is made, it also rejected any family law reform until the review on financial provisions for divorce is concluded.

So, what now – cohabitation law remains inequitable and the myth of common law marriage prospers?

Reform of cohabitation law is still however in the pipeline. Family Law Reform Now is campaigning for cohabitation reform and, most recently, at the Labour Party Conference on 10 October 2023, the Shadow Attorney General, Emily Thornberry MP, announced that a Labour government would reform cohabitation law, which would be a welcome and much needed change for many.

Over the years, we have seen how the campaigns and lobbying for no-fault divorce has come to fruition so it is hoped the same progress will be made to reform cohabitation law.  Reform. Until then, however, the situation remains wholly unsatisfactory and leaves many cohabiting couples without sufficient legal recourse if their relationship breaks down.