Cohabitation Law Reform – Perspectives North and South of the Anglo-Scottish Border

Introduction

The man from Berwick-upon-Tweed could be forgiven for being thought Scottish. The town is 2½ miles south of the Anglo-Scottish border, and the northernmost town in England. Its football team, Berwick Rangers, plays in a Scottish football league, despite being based in England.

In 2026, the Berwick man is a metaphor for what may be about to happen to some of our family laws in both countries. The English may find themselves with Scottish-type financial remedies for cohabitants, while the Scots are seeking further guidance for dealing with the more discretionary type of financial remedies to which the English are more accustomed.

In this article, we outline the current relief available for cohabitants in both jurisdictions, the likely direction of travel for legislative reform and what we are likely to be left with. Will the Berwick man have greater clarity or be even more confused than when we started?

Outline of current relief for cohabitants

England and Wales

There are no automatic guaranteed rights to ownership of each other’s property on relationship breakdown. The courts have no power to override the strict legal ownership of property and to divide it as they may on divorce. The court can be asked to determine an interest in property under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA). The court determines shares acquired in property where either trust law principles apply or proprietary estoppel applies. One party may be found to have a beneficial interest in a property even where it is in the sole name of the other, or to have a greater share than the other party in a jointly owned property where there is no express declaration of trust. Trying to prove a common intention in relation to ownership of the family home is difficult without written evidence.

In Stack v Dowden [2007] UKHL 17, the House of Lords ruled that where a property is registered in joint names in the domestic context, and there is no express declaration setting out the respective beneficial shares of the registered owners, there is a presumption that the beneficial interest will be held in equal shares, unless a contrary intention is shown. To prove entitlement to a different share in the value, it would be necessary to look at all the relevant circumstances to ascertain the parties’ shared intentions, actual, inferred or imputed with respect to the property in the light of their whole course of conduct in relation to it.

In Jones v Kernott [2011] UKSC 53, the Supreme Court confirmed that where a family home is bought in the joint names of a cohabiting couple without any express declaration of trust, financial contributions are relevant but there are many other factors which enable the court to decide what shares were either intended or fair.

Under Sch 1 Children Act 1989, all parents, including those who are unmarried and not civil partnered, can apply to the court for financial provision for a child rather than in addition to applying to the Child Maintenance Service, including situations when a child is mentally or physically disabled or if the non-resident parent’s gross weekly income is above £3,000.

There is no automatic right for couples who live together without getting married or forming a civil partnership to inherit a part of their partner’s estate if their deceased partner dies without leaving a will, regardless of how long they have lived together or whether they had children together. Cohabitant claims under family provision legislation are limited to reasonable provision for their own maintenance as opposed to the entitlement for a surviving spouse or civil partner to seek whatever financial provision it would be reasonable for them to receive, whether or not that provision is required for their maintenance.

A cohabitant cannot rely upon their former partner’s contributions for the purposes of the State Pension. Occupational pension schemes have a discretion to provide a survivor pension to a financial dependent on the deceased who was unmarried at the time of their partner’s death. However, this discretion depends on the rules of each individual scheme.

Scotland

Cohabitants are defined as members of a couple who are or were living together as if spouses. In determining if this definition is met, the court has regard to the length of time the couple lived together, the nature of the relationship during that period and the nature and extent of financial arrangements which subsisted. A claim may be made under the Family Law (Scotland) Act 2006 (the 2006 Act) regardless of the length of the cohabitation; there is no minimum period.

As in England, Scots Law does not provide automatic or guaranteed rights for cohabitants to share in each other’s property following relationship breakdown, save some narrow rebuttable presumptions that cohabitants share in certain household goods and in money or property deriving from a household ‘allowance’. However, the 2006 Act provides cohabitants with the right to apply to the court for an order for financial provision within one year of the date of cessation of the relationship otherwise than by death. The court can order a capital sum to be paid for such sum as is specified in the order, and in respect of any economic burden of caring for a child of whom the cohabitants are parents and such interim orders as it thinks fit.

These claims are available to parties who would have jurisdiction to raise a divorce action in Scotland, had they been married. It is not therefore necessary for the cohabitation to have taken place in Scotland in order for a valid claim to be made – either party being domiciled in Scotland would be sufficient.

Cohabitants may make an application to the court for a discretionary award following the death of their cohabiting partner. Such an application must be made within 6 months of the date of death (although there is new legislative provision, not yet in force, extending this to one year). These applications can only be made where the deceased was intestate, was domiciled in Scotland and was living with their cohabitant at the date of death. The court can order a payment of a capital sum from the net intestate estate, an order for transfer of property, or such interim order as it thinks fit. The 2006 Act expressly provides that a surviving cohabitant shall not receive an award exceeding that to which they would have been entitled had the survivor been the spouse or civil partner of the deceased.

Likely direction of travel for legislative reform

England and Wales

Cohabitation is the fastest growing family type in England and Wales, having grown to around 3.6m couples in the United Kingdom compared with 1.5m in 1996.

Despite the inferior protections received by cohabitants as compared with the legal rights and responsibilities upon divorce or death, many people believe in the common law marriage myth; the incorrect belief that after a certain period living together, the law treats cohabitants as if they were married.

The property law remedies are considered complex, while Sch 1 mostly benefits the children of wealthy parents. Cohabitants do not automatically inherit from their partner.

This lack of legal protection results in relationship-generated disadvantage, which is primarily suffered by women on family breakdown, including those from an ethnic minority background and those who had a religious-only wedding (i.e. a non-qualifying ceremony).

Legislation is most likely to involve an opt out scheme as proposed by the Law Commission in 2007. This approach was endorsed by the Women and Equalities Committee in August 2022. The Law Commission in 2007 recommended a scheme to ensure:

‘that the pluses and minuses of the relationship were fairly shared between the couple. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage. The court would have discretion to grant such financial relief as might be appropriate to deal with these matters, and in doing so would be required to give first consideration to the welfare of any dependent children.’[[1]]

subject to a review to take into account societal changes since 2007.

As to whether cohabitants should have the same or different rights to married couples, the Law Commission Executive Summary stated:

‘Many people think that cohabitants should have access to exactly the same remedies as married couples and civil partners. We do not agree. Although some cohabitants have relationships that many would regard as being similar to those of spouses, there is a broad range of cohabiting relationships, exhibiting different degrees of commitment and interdependence. And cohabitants have not made the distinctive legal and public commitment that marriage entails’.[[2]]

There is also likely to be an improvement for claims by cohabiting partners both concerning intestacy and family provision claims.

There may be improved guidelines as to how pension schemes treat surviving cohabitants when claiming a survivor’s pension. There may also be a proposal for the inheritance tax regime to be the same for cohabiting couples as it is for married couples and civil partners.

Scotland

The definition of cohabitants is considered vague, outdated and not reflective of modern relationships. The test when making awards for financial provision is unclear and overly complicated, making it difficult to advise on the likely outcome of claims. It is no coincidence that, since 4 May 2006 when the current provisions came into force, relatively few cases have been litigated all the way to a final hearing. The orders available are too limited. The time limit for making a claim is too short and inflexible. There is no specific provision for the court to take into account any agreement between the cohabitants in deciding what order to make or allowing the court to vary or set aside such agreements in certain circumstances.

The Scottish Law Commission published its Report on Cohabitation in November 2022 following a lengthy period of consultation. The Report includes a draft Bill aimed at addressing a number of these issues. It recommends that specific reference to ‘fairness’ should be included in the legislation; this is notably absent at present, although the Supreme Court case of Gow v Grant [2012] UKSC 29 put it beyond doubt that the guiding principle should be one of fairness.

The range of orders is likely to be expanded to include property transfer orders, orders for valuation and sale of property and orders for payments for short-term relief from serious financial hardship. The time limits for making claims are likely to be capable of extension on a discretionary basis on ‘special cause shown’. There is also a recommendation for specific provision as to what should happen where parties have entered into a written agreement prior to, or during, their cohabitation.

Comparing and contrasting cohabitation law moving forwards on both sides of the Border

Forthcoming reforms in England and Wales – Resolution’s position

In England and Wales, practitioners see injustices day in and day out, which particularly impact on children and women experiencing domestic abuse. Without overburdening the Family Court, standardising the types of claims that can be made simplifies cases that would be settled quicker through non-court dispute resolution.

The current application of property law remedies leaves women who take on domestic or care responsibilities the most disadvantaged at present. A regular difficulty is that because of the widespread incorrect belief that cohabitants have ‘common law’ rights, by the time they find out their true position, it is too late for them to do anything about it.

The law will only work better if it applies equal treatment of children in terms of equal financial protection for the children of married and unmarried partners on relationship breakdown. There needs to be greater protection of women, taking into account the risk of domestic or economic abuse, including controlling and coercive behaviour.

In terms of applying for financial remedies, there needs to be discretion to have available pension sharing, maintenance in some cases, and a carer’s allowance, fairly calculated.

It is anticipated that financial remedies on divorce will be reformed at the same time to make outcomes easier to predict, and to more easily facilitate modernised family law remedies being available for both married and unmarried couples.

There is a huge need generally for the law to protect and help all families when relationships break down so that family justice professionals can provide the support they need when relationships break down.

New law needs to support fairer outcomes for victim survivors and reduce the scope for post-separation abuse. Professionals are even more concerned when it comes to unmarried families. In our member research, 85% said it is not sufficiently taken into account in Schedule 1 cases, while 87% said it is not sufficiently taken into account where the parties cohabited but never married.

Current trends

In practice, there are a number of current trends which could be considered to demonstrate that there should be a change in the law.

First, there are cases where the parties separated years, if not decades, ago and where the female partner has remained living in the former family home as the children’s primary carer, paying all of the outgoings, including mortgage payments. The male partner then seeks to realise his interest, often when the children are grown up. In those cases, where there is an express declaration of trust, the female partner is forced to rely upon equitable accounting in respect of her outgoings and will often be met with a claim for occupation rent by her former partner. Equitable accounting claims are notoriously difficult: they require a party to go back over many years to find documents such as bank statements, which they may well no longer have. The law itself is by no means clear either, particularly in respect of occupation rent. The test appears to be whether it would be ‘just’ to order payment of occupation rent, but there is little guidance on what is ‘just’. In Jones v Kernott it was stated that, ‘It is quite likely, however, that the court would hold that there was no liability to pay an occupation rent, at least while the home was needed for the couple’s children’.

Where the property is held in joint names but there is no express declaration of trust, the approach taken by the courts where the parties have only lived together in a property for a short while is inconsistent, ranging from a finding that their common intention was that their shares were held 92%/8% in the female partner’s favour, for example Allen v Webster [2024] EWHC 988 (Ch), to finding that the male partner is still entitled to a 50% share, subject to any equitable accounting claim.

An added complication in this type of scenario, where the female partner has remained living in the property with the children for many years and is paying all the outgoings, is that there are often issues regarding unpaid or underpaid child maintenance which the female partner will also want the court to take into consideration. In Barnes v Phillips [2015] EWCA Civ 1056, it was held that, in principle, it was open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties. There is little, if any, guidance in the reported cases, however, about how the court should approach this task.

What emerges from these trends is that it is in those situations where there are children of the relationship that the law in practice is particularly unclear, leading to uncertainty and, in some cases, unfair outcomes. Where the property is owned in one partner’s sole name, then the task faced by the non-owner, often but not always the female partner, is all the more difficult. Not only will they face the difficulties referred to above, but also they have to establish that they have a beneficial interest in the first place.

Forthcoming changes in Scotland

The 2006 Act made great strides in providing Scottish cohabitants with a far greater degree of protection than they had previously enjoyed. However, as is the case in England and Wales (and despite the best efforts of many), a difficulty remains in terms of public knowledge. The 2006 Act abolished ‘marriage by cohabitation with habit and repute’ (but without retrospective effect); however, many individuals assume that they have rights equivalent to that of a spouse. Alternatively, they assume that they have no rights at all resulting from their status as a cohabitant and may seek legal advice after the point at which their claim has become time-barred. The current time limits can create very real unfairness (e.g. where parties who would otherwise have had perfectly legitimate claims have been in hospital). The ability of the court to flex these time limits ‘on special cause shown’, as is suggested, would go some way to addressing this. Practitioners will also welcome the proposal that parties will have the ability to enter into an agreement to negotiate, with an associated extension of the time limit which would otherwise apply.

The discretionary nature of cohabitation claims in Scotland makes them notoriously difficult to advise on. How hard fought they may be is therefore tied largely to a client’s appetite for risk. The proposed reforms seek to bring greater clarity. The recommendation is that there be a fresh and more detailed set of guiding principles for the court to consider when making an order following separation. These principles will go beyond the current consideration of economic advantage/disadvantage gained or suffered by either party.

The proposed provision for short-term relief for cohabitants who would otherwise suffer serious financial hardship is key bearing in mind the underlying policy aims of the 2006 Act. This will allow some adjustment period for individuals who have become significantly financially dependent on their cohabitant.

Commentary

At the start of this article, we highlighted the position of the Berwick man and asked whether he is headed for more clarity and certainty or being more confused than when we started.

It is worth going back to 1984 and the infamous English case of Burns v Burns [1984] 1 All ER 244. In that case, ‘Mrs’ Burns moved in with Mr Burns in 1961 and they lived together for 19 years. The Court of Appeal decided that she had no equitable or proprietary interest in her family home on separation, which meant she had nowhere to live when the relationship ended.

So far as England and Wales is concerned, until the law is reformed, cases like this will continue. Cohabitants are much more likely than spouses to live in a home owned solely by their partner, while wrongly believing that the length of time they stay in that situation has a bearing on the interests they acquire in their partner’s property.

If new legislation addresses this patently wrong (in every moral sense) situation it will be a good starting point, but hopefully modernising and simplifying the law can be achieved at the same time.

So far as providing equal treatment and equal financial provision for all children is concerned, this should frankly be a no brainer.

Of course, the situation in Burns v Burns would not arise today in Scotland (even pre- any reforms), as Mrs Burns, whilst not acquiring an interest in the property, would be able to make a financial claim against Mr Burns to reflect the economic disadvantage suffered by her in the interests of the relationship (as seen in Gow v Grant [2012] UKSC 29). The reforms which may be introduced in Scotland would improve Mrs Burns’ position further in allowing her to seek a transfer of the property (a remedy which is not currently available to cohabitants).

The existing law in Scotland provides for orders to be made in respect of the economic burden of caring for a child of whom the cohabitants are parents. Many reported cases which have included these orders have tied them to childcare costs. The proposed reforms refer to relevant children (and so would include a child accepted as a child of the family) and to a fair sharing of the economic responsibility of caring for such a child post-cohabitation. What a fair sharing of that responsibility looks like in practice remains to be seen.

In closing, we must all hope that not only will the Berwick man have more clarity and certainty, but also the Berwick woman, and all of their children, irrespective of whether they are in England and Wales or considering their position north of the border. Law reform in England and Wales should look to Scotland’s existing and proposed laws to ensure the new law is accessible and protects those most disadvantaged. When we achieve that, we will have better and fairer laws that are fit for purpose for all families.

This is an article from the forthcoming Financial Remedies Journal 2026 Issue 2.

[[1]]: Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown, Executive Summary, Law Com No 307 (Summary), 31 July 2007, para 1.19.

[[2]]: Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown, Executive Summary, Law Com No 307 (Summary), 31 July 2007, para 1.10.