Cohabitation reform: greater protection, but at what cost?

The Government is consulting on significant changes to the financial rights of unmarried couples in England and Wales. The proposals address some genuine injustices in the present law, but extending financial remedies to cohabitants also raises difficult questions about choice, certainty and pressure on the Family Courts.

It remains one of the most persistent myths in family law that living together for long enough creates a “common law marriage”. It does not.

At present, an unmarried couple who separate do not have access to the discretionary financial remedies available on divorce. Property disputes may instead have to be determined through principles of property and trust law, including the Trusts of Land and Appointment of Trustees Act 1996. The result can sometimes appear harsh, particularly after a long relationship in which one party has made significant financial or domestic contributions without acquiring a corresponding proprietary interest.

The Government is now considering substantial reform.

What is proposed?

The Ministry of Justice consultation, A Fairer End to Relationships, considers a new statutory financial remedies framework for qualifying cohabitants.

The Government proposes that the scheme should apply to couples living together in an enduring family relationship who either satisfy a minimum period of cohabitation — the consultation proposes three years — or have a child together.

Importantly, the Government is not simply proposing to treat every cohabiting couple as though they were married. The intention is to create a distinct regime directed at financial disadvantage arising from the relationship or its breakdown.

The consultation also considers whether couples should be able to opt out of the statutory scheme by agreement.

There is a strong case for some reform

There are undoubtedly cases in which the existing law produces outcomes which most people would regard as unfair.

A couple may live together for 20 or 30 years, raise children together and organise their finances on the basis of a shared life. One partner may reduce work or abandon career opportunities to care for children or the home. If the relationship then ends, the absence of marriage can produce a radically different result from divorce.

The present reliance upon property law can also be complex. Litigation about beneficial ownership was not designed as a comprehensive system for addressing the financial consequences of the breakdown of an intimate relationship.

There is therefore a respectable argument that carefully targeted remedies for relationship-generated financial disadvantage would provide greater fairness.

But cohabitation is not marriage

There is an equally important argument on the other side.

Some couples make a deliberate decision not to marry or enter a civil partnership. Marriage brings with it a well-established package of legal rights and obligations. If substantially similar financial obligations are imposed simply because two people have lived together for a specified period, there is a danger of undermining that choice.

A three-year threshold is also necessarily arbitrary. A relationship does not suddenly acquire a different economic character on its third anniversary.

The proposed ability to opt out may answer some of that concern, but only if the rules surrounding opt-outs are clear, accessible and respected. A system in which an apparently valid cohabitation agreement routinely becomes the starting point for further litigation would provide little certainty.

The effect on the courts

There is also a practical issue which should not be underestimated.

The Family Courts already deal with a very substantial workload. Creating an entirely new jurisdiction potentially available to a large population of formerly cohabiting couples will inevitably generate additional litigation.

The substantive merits of reform therefore need to be considered alongside the resources required to make it work.

A statutory scheme which encourages predictable settlements and early dispute resolution may be manageable. A broadly discretionary jurisdiction requiring detailed judicial investigation of the history of every relationship could be considerably more problematic.

Mediation and other forms of non-court dispute resolution are likely to have an important role if reform proceeds.

Perhaps the clearest case: death without a will

The consultation also addresses what happens when a cohabitant dies without making a will.

This may provide an even stronger case for reform.

Contrary to another common misconception, an unmarried partner does not automatically inherit under the intestacy rules simply because the couple have lived together for many years.

A surviving cohabitant may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but that requires a claim to be made and brings with it expense, delay and uncertainty at precisely the time when somebody is dealing with bereavement.

There is considerable force in the argument that a person who has lived with the deceased as their partner in a settled, long-term relationship should have some automatic protection on intestacy.

Any reform would nevertheless need careful safeguards, particularly where there are children from previous relationships or competing family claims.

Finding the right balance

The difficulty is not identifying the problem. The present law can undoubtedly produce injustice.

The harder question is how far the law should go in correcting it.

A targeted scheme addressing demonstrable economic disadvantage may command considerably wider support than simply importing the financial remedies jurisdiction applicable to divorce.

Similarly, meaningful opt-out provisions could preserve autonomy for couples who positively choose not to acquire financial obligations towards one another.

The objective should be to protect vulnerable partners without creating marriage by default.

That is a difficult balance, but it is an important one to get right.

The Ministry of Justice consultation A Fairer End to Relationships closes on 14 August 2026.

Read the consultation and respond