Many people believe vaguely in ‘Common Law Marriage’. This is the idea that if you live with someone outside of marriage, sooner or later you gain a share of at least some of their property.
As lawyers, we know that cohabitees in England and Wales don’t usually gain any rights over their partner’s property. In legal practice, I sometimes had to pass on this news to people, usually women, who had lived for decades in a home owned by their partner. Some had been through ceremonies which they believed to be legal marriages, but which were not. These women, often from overseas, were distressed to find that not only were they not married, but that they had no recourse to divorce financial remedies.
Divorcing couples are protected by the Matrimonial Causes Act 1973. The court has wide discretion to allocate possessions between them, often with the starting point of a 50/50 split. But cohabitees have to fall back on the good old-fashioned law of Equity, and in particular the Common-Intention Constructive Trust.
Let’s introduce Sandy and Jay, an example couple who’ve lived together for five years. Sandy owns the house they live in. We’ll keep them gender-neutral for now. At least in theory, the law is gender-neutral and sexuality-neutral.
Jay must try to persuade the court that Sandy holds the property on trust for both of them. This will obviously be an unwelcome idea to Sandy.
A court can only find that such a trust exists by establishing that the parties had a common intention to share the property at equity. This could be actual intention (e.g. email from Sandy to Jay – ‘the house belongs to us equally’). Or intention can be inferred from the circumstances. For example, Jay’s own house is sold, proceeds given by Jay to Sandy. That plus an equal amount of Sandy’s money is used to buy a house in Sandy’s sole name.
If a court finds that a trust exists, it has to work out the size of the share. Again, it can look for actual evidence of intention. In our first example above, Sandy’s email is evidence that both intended Jay to own half. In our second example, Jay’s 50% contribution is evidence of the same thing. The court can even ‘impute’ joint intention if necessary, by considering the whole course of dealings between Sandy and Jay. From that it imputes what a fair share would be. Imputation is controversial, among both judges and lawyers. Many argue that imputation is an artificial device designed to give the court the sort of discretion it has when allocating property in divorce. If so, it’s a drift away from the pure principles of Equity, or a manipulation of them to help the financially vulnerable.
All of this sounds like good news for Jay.
However, this is an illusion. First, Equity case law is not usually a firm foundation for legal action. Decisions are unpredictable. Even within cases, judges dissent vigorously – e.g. about imputation. So there is little legal certainty for Jay here.
Second, the cost of taking a case to court are high, and there is little or no legal aid available. In divorce cases, the poorer spouse can at the outset obtain legal cost funding from the richer spouse. That is not possible here. Counsel would need to be instructed as well as solicitors. The wait for trial would be long, and the outcome uncertain. If Jay lost, there would also be Sandy’s legal costs to pay.
In short, this route is unavailable to and / or unsuitable for most people in Jay’s position.
As cohabitation has increased, governments over recent decades have considered ways to alleviate this problem. Most recently, from 20th June to 20th August 2026 the Ministry Of Justice held a consultation: ‘A Fairer End to Relationships’. This included proposals that cohabitees who have a child together, or have lived together for more than three years, can make a claim against each other. So Jay would be able to claim against Sandy.
The proposals are modest: claims are on the basis of needs, for example in terms of provision for housing. This is a far cry from the discretion given to the court in divorce. However, it would correct some manifest injustices. It would have been enormously useful to some of my clients.
Interestingly, these proposals not only enrage some men but also polarise feminist opinion. There are two main ‘camps’ of feminist thought, which I’ll call Camp A and Camp B.
Camp A welcomes these proposals, at least as a starting point. The view is that economically weaker cohabitees – still mostly women – deserve greater protection. Some take the view that this should equal the provision afforded to spouses upon separation, given that so many people now choose cohabitation over marriage. Camp A also argue that the proposed provision of an agreed opt-out preserves autonomy. Couples can still decide for themselves at the outset how (or if) they are going to share assets if they split.
Camp B views these proposals with disapproval. They are seen as patronising to women, based on outdated views of the ‘poor little woman’. They resist what they see as the assumption that women are still dependent on men, and unable to protect their own interests. They would say: if you want the protections of marriage, get married. If you don’t, then you are a free autonomous individual who doesn’t need the law interfering in your life.
As a Gen-Xer whose earliest opinions were formed by 1970s second-wave feminism, I find it hard to choose between these arguments. So let’s try them out on Jay and Sandy as before.
Let’s make Jay a woman and a doctor. She owns a house and earns a large salary, paying for everything. Sandy, her male partner lives with her; he is a musician, earning little. Here I would say – why should Sandy have any claim over Jay’s assets when they split? He’s already had free food and housing for five years!
Side note: is there unconscious bias at play here? Outrage at the idea of a woman being compelled to support a man?
Now let’s change the facts and make Jay resemble one of the female clients I mentioned earlier. Jay came to the UK to ‘marry’ wealthy businessman Sandy 5 years ago, in a religious ceremony. She’s now discovered that she was never legally married. Sandy has thrown her out, and the house is in his sole name. Jay speaks little English and is isolated and depressed, after years of domestic abuse from Sandy.
Now, of course, I have changed my mind. Absolutely she should have a claim against him.
But again, is unconscious bias at play?
Overall, I would err on the side of Camp A, even at the risk of seeming patronising or over-protective. After all, opt out provisions are available. The law must protect us, especially when we are vulnerable (as we are in our intimate relationships). At present, the law is not doing that job.
How much protection though? And do the current proposals go too far, or not far enough? That’s another story.