Cohabitation:
There is no such thing as a ‘Common Law Wife’
INTRODUCTION
This article explores the position of the cohabitee and the lack of financial protection offered to them by
contrast with the position of a husband or wife. The relevance is the increasing numbers of couples
(including same sex couples) who are living in relationships outside marriage and the vulnerability of the
weaker party on the breakup of the relationship.
Whilst on divorce the court has the power to adjust property and capital interests, with cohabitants, the
court’s power is limited to dealing with financial contributions to property and to making financial provision if
there are children.
HISTORICAL PERSPECTIVE
There has been a fall in the number of divorces in recent years. Why the fall? Some say it was due to the
recession and the stagnation, until recently, of the housing market. This is arguably an over simplification.
The number of people cohabiting has been steadily increasing and the numbers marrying has been
reducing. Since the 60’s the social pressure to marry has reduced. Terms like ‘living in sin’ and the
Victorian description of a child as a ‘bastard’ no longer apply. To have a child outside marriage is now
almost the norm and frequently couples decide to have their children and then marry. Women are now
expected to have careers and have children and be financially independent.
In the 70’s and 80’s the press openly encouraged couples to co-habit rather than marry and advocated the
advantageous of being ‘a common law wife’, without listing the disadvantages. The influence of the church
and religion has diminished and no longer is it seen as a social disgrace to ‘live in sin’.
What was overlooked by the press in the encouragement of the freedom of being a common law wife, was
the failure of the law to protect the interests of these women. Now, many years later it is those relationships
which are ending and family lawyers are seeing those relationships break down. How often are we
consulted by a middle aged woman whose tale is that she settled down 20 years ago, moved into her
man’s flat, had his children who are now off her hands and that she and her partner have split up. She
proclaims she is a ‘common law wife’ and is told by the lawyer, that that has no meaning in law and gives
her no entitlement to property as such. The number of times men and women presume that because they
have lived together that the court will have the power to split the assets is legion. The property owning party
is pleased to be told that there may be no liability for the former partner and more seriously the former
partner is told they have no claim. This is particularly serious where there are children.
Whilst many years ago, Lord Denning, sought to open up the law for cohabitees and was prepared to
recognize non-financial contribution, after his retirement in 1982, the mood changed and in the case of
Burns v Burns [1984] FLR 216 the court held that it could not treat the non-financial contribution of Mrs.
Burns after 17 years of co-habitation and raising three children as sufficient to give her an interest in the
property.
The position of the common law wife is akin to the position of the wife where her husband is
bankrupt. The power of the court under the Matrimonial Causes Act 1973 to reallocate assets and
make ‘fair’ financial provision’ do not apply. The court has to determine the entitlement by
reference to the rules of equity. There are of course different situations depending on whether a 1
property is in the sole name of one of them or joint names, and then if the property is held as joint
WHAT IS THE LEGAL POSITION FOR DETERMINING INTERESTS IN LAND?
The position of the common law wife is akin to the position of the wife where her husband is bankrupt.
The power of the court under the Matrimonial Causes Act 1973 to reallocate assets and make ‘fair’
financial provision’ do not apply. The court has to determine the entitlement by reference to the rules of
equity. There are of course different situations depending on whether a property is in the sole name of
one of them or joint names, and then if the property is held as joint tenants or as tenants in common.
PROPERTY IN JOINT NAMES
Property held as joint tenants:
If the property is held as joint tenants, then the presumption is that the property is owned equally and that
in the event of the death of the first partner, the other inherits it automatically.
If a property is held in joint names and the relationship breaks down and the right of survivorship is not
wanted any more, a notice of severance can be served by either party on the other and the joint tenancy
converts into a tenancy in common.
The presumption that the property is held equally can be rebutted if it can be shown that there is a clear
contrary intention, as was held by the House of Lords in the case of Stack v Dowden [2007] UKHL 17.
The key findings were:
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A transfer into joint names will result in a legal and beneficial joint tenancy, unless the contrary is
shown;
It is for the person seeking to establish that they hold as tenants in common to establish the
claim;
The court must determine the parties shared intention in the context of the whole course of
dealings- not just at the time of the purchase;
The relevant factors are:
 Discussions or advice at the time of the purchase;
 The reason the property was purchased jointly;
 The reasons why they wanted the survivorship provision;
 The purpose the property was acquired for. Was it to be a family home or
investment;
 The nature of the parties relationship at the time of the purchase and
subsequently;
 Are there children who were dependents of both parties;
 How the purchase was financed and the financial contributions of each at the
time of purchase and subsequently. In particular, had there been any change to
the financial arrangements. For example has one party stopped paying the
mortgage;
 How the parties arranged their finances, for example were they held separately
or jointly, or did they contribute to a joint account for living costs;
 How the parties paid the outgoings on the house and living costs generally. If, for
example, the mortgage was paid by one party and the outgoings by the other,
could the first party have afforded the property in the first place without the
financial contribution of the other party.
In Jones v Kernott [2011] UKSC 53 it was stated that where a home is purchased by a cohabiting couple
in joint names and without any express declaration of their beneficial interests, the starting point is they
hold as joint tenants in law and equity, but that this presumption can be displaced by evidence that at the
time of the purchase or later, their common intention changed.
In this case the parties bought in joint names and at the time of purchase had a joint interest in
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In this case the parties bought in joint names and at the time of purchase had a joint interest in the
property. Mr Kernott moved out of the property and Ms Jones continued to pay the mortgage. The
Supreme Court held that it was fair to impute a change and found that Mr Kernott was entitled to only
10% of the equity.
This is evidenced by:
 The parties' conduct;
 Where it is not possible to ascertain by direct evidence or by inference what the actual intention
was, the court should impute what is ‘fair’;
 What is ’fair’ will depend on the actual facts of the case;
 Financial contribution will be a factor.
In a hypothetical case, say the property was bought for £200,000 with a mortgage of £100,000. One
party, ‘P’ paid £50,000 for building works which increased the value of the property by £50,000. The
property is sold for £250,000 so that the net sum of £150,000 is available for division. On the 50/50 rule,
each are entitled to £75,000, but an adjustment is made of half the amount of increased value as a result
of the building works i.e. £25,000 and this is given to P, so he receives £100,000 and his partner £50,000.
Property held as tenants in common:
Where a property is owned as ‘tenants in common’ rather than as joint tenants, there should be a
declaration setting out the ‘shares’ in which the property is held and that determines the division of the net
proceeds of sale. The property does not pass to the survivor on the death of the other.
The declaration of trust should record the basis of the financial interests of each of the parties.
Property in one partner’s name:
The more complex situations arise where the property is held in the name of only one of the parties say
the man, for example, but these rules are non –sexist and it can be in the name of the woman as well.
The court must then determine any claim for an interest against a background of trust law. These fall into
a number of types:
Resulting Trusts
The principle established in Pettitt v Pettitt (1970 AC777) and Gissing v Gissing (1971 AC 886) that where
a direct contribution to the purchase price can be established the court infers a common intention. The
amount of the interest is based on the amount of the contribution to the purchase price at the time of
purchase. It is important that the contribution is made at the time of the original purchase.
Constructive Trusts
Where it is a common intention of the parties that the property is to be held for the benefit of both parties
and where the person whose name is not on the deeds, acts to his/her detriment in reliance upon the
promise, the court infers a constructive trust. Lord Bridge of Harwich in Lloyds Bank v Rossett
1991 AC107 stated that it was ‘ extremely doubtful’ that where there was no express common intention to
share the beneficial interest and no direct contribution, that the court could infer that there was a common
intention.
The court does recognize that even where there is no direct contribution to the original purchase price or
to the mortgage, that a contribution to the living costs which enable the property owner to pay the
mortgage and frees that person from paying the living costs can amount to financial contribution.
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Again there has been a further relaxation of the term ‘family’ by the House of Lords in Fitzgerald
The ‘Promise’ Argument
More recently, following the line started by Lord Denning, statements made by the property owning party
that ‘he holds the property for the benefit of them both’ or that ‘she has an interest in the property’ have
been held sufficient to establish the agreement. This has been accepted by the court in the case of Rowe
v Prance [1999] 2 FLR 78 where the court gave Ms Rowe a 50% interest in a yacht on the basis of the
statements by Mr Prance that the boat is ‘ours’, notwithstanding that Ms Rowe made no financial
contribution to the purchase or running costs of the yacht.
Again there has been a further relaxation of the term ‘family’ by the House of Lords in Fitzgerald v Sterling
Housing Association [2000] 1FLR 271 by the recognition of a homosexual cohabitant as a family member.
CALCULATION OF THE CLAIM
It does not follow that because the court is able to grant relief that the non-property owning partner will
automatically receive 50% of the net proceeds of sale. Further, the criteria used on divorce such as to
meet a ‘housing need’ are not relevant.
Once the first hurdle is passed, the second stage is to quantify the size of the interest the person whose
name is not on the title has. The court looks at the contribution made, but the court is now taking a
broader approach to the whole of the dealings between the parties.
For example if a house is purchased in joint names for £200,000 and ‘W’ puts down a deposit of £20,000
and the mortgage of £180,000 is paid for jointly. W is deemed to own the property in the following
proportion £20,000 + (half mortgage) £90,000 = £110,000/ £90,000. If the property is sold for £300,000,
then she is entitled to £165,000 and the partner £135,000.
Where the contribution is by paying for building works the interest is quantified by reference to the
increase in value to the property by reason of the building works, rather than the actual cost of the work.
WHAT OTHER REMEDIES ARE THERE ON A RELATIONSHIP BREAKDOWN?
There is no ongoing claim by one party against the other for maintenance when the relationship breaks
down. Contrast this with the position if one party dies and the other has been maintained by the
deceased. After a period of living together for two years, the court will give the survivor maintenance out
of the deceased’s estate.
CHILDREN
Where there are children, they are entitled to child maintenance in the same way as children whose
parents were married.
Children are also entitled to make a claim under Schedule 1 of the Children Act 1989 which gives the
court power to make capital sums available to provide for specific needs of the child, such as for
education or medical needs.
In addition, capital claims can be made to provide housing for a child, whilst the child is dependent, i.e. in
full time education. The property is held in trust for the payer, with the child and inevitably the mother.
When the child completes full time education, the property is sold and the capital reverts to the payer.
The downside of this is that the mother has no long term housing provision.
Where the parent with whom the child(ren) has a high income, under current child maintenance law a ‘top
–up order’ may be available and in making such an order the court can take into account all the
costs of the child and this can include an element of ‘child care’ for the mother.
What changes are proposed?
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–up order’ may be available and in making such an order the court can take into account all the costs of
the child and this can include an element of ‘child care’ for the mother.
WHAT CHANGES ARE PROPOSED?
The issue to change the status of cohabitees is a political hot-potato and the court has stated that it is not
for the courts to change the law, but the job of Parliament. There have been various attempts to change
the law over the years, the most marked being Lord Lester’s attempt which led to the Civil Partnership Act
2004. Currently, there is the Cohabitation Rights Bill 2015 introduced into the House of Lords by Lord
Marks to establish a financial claim for cohabitees (whether same sex or opposite sex) after three years
of living together unless there are children, where there will be no qualifying period, with an ability for the
parties to ‘opt out’. It is proposed if either party has suffered a financial benefit or suffered an economic
disadvantage as a result of the relationship, that the court can make a lump sum order, order a transfer of
property or order a sale of property and can also make a pension sharing order. It is also proposed that a
cohabitant will be entitled to the same provision as a widow/widower in the event of an intestacy.
WHAT STEPS CAN THE COHABITEE TAKE TO PROTECT THEIR POSITION?
1) Have their name on the deeds
2) Have a declaration of trust setting out the respective interests in the property
3) Ensure that financial contribution is to the property cost, i.e. for the deposit or for paying the
mortgage, rather than paying for the food
4) Have a will drawn up by the party owning the property in favour of the non-property owner.
5) Prepare a cohabitation agreement
6) See what entitlement there is under the other party’s pension scheme for dependents and make
necessary nominations for death in service benefit.
7) Take out life insurance.
CONCLUSION
Whilst cohabitees are vulnerable, they have a simple way to get the same protection as offered by
marriage, whether same sex marriage or heterosexual, by marrying. It is the heterosexual cohabitants
who are now disadvantaged by not having the option of the equivalent of a civil partnership and the
protection this provides.
Some people want the independence of knowing that ‘what is theirs is theirs’ and do not want a system
imposed upon them. The crucial point is the misconceptions about the legal position held generally at
large and, in particular, for the weaker financial party, usually the mother with young children, for it is she
who frequently comes out of a relationship with nothing, whereas had she been married the courts would
have been able to provide security for her and her children as the interests of the children are paramount
on divorce.
Frances Sieber
www.springlaw.co.uk
2015
[email protected]
This article relates to the legal position in England and Wales. It does not constitute legal advice and
independent legal advice should be sought. No liability is accepted on the part of Spring Law LLP (or its
members or employees) or Frances Sieber in the event of reliance, directly or indirectly,, upon the
contents.
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