The government has shared details of its long-awaited consultation on reforming cohabitation rights, which is open now and will run for 10 weeks until 14th August. The consultation will look at three key areas of reform: financial remedies on divorce and dissolution, protecting cohabitants on separation, and provision for cohabitants in cases of intestacy.
Each of the three proposed areas for reform is underpinned by four principles: prioritising fair outcomes for children; protecting the vulnerable; providing a clear and accessible framework; preserving the distinct framework of marriage.
Cohabitees make up 17% of all families, according to the latest Office for National Statistics (ONS) estimates of families and household types in the UK – around 3.5 million people. However, the government acknowledges in the foreword to the consultation that the law hasn’t kept pace with the realities of modern families, leaving many without rights and facing financial hardship.
The consultation proposes what the government says are “some of the biggest reforms to family law in decades”, with the aim of “bringing the law into the 21st century, helping families feel better off and increasing protections for millions.”
Part one: Reforming the law of financial remedies on divorce
Part one of the consultation proposes a ‘codification-plus’ model of reform to the law of financial remedies on divorce, which was one of four possible models set out by the Law Commission in its 2024 scoping report. The codification-plus model would codify current law while reforming specific areas of law where case law is not settled, with the aim of providing more certainty.
Core features of the model include a clear objective for financial remedies on divorce, with the court’s overarching objective to be achieving a fair outcome by meeting needs and sharing assets; a coherent and structured framework, with codification of the principle that matrimonial property should be shared equally as a starting point, and explicit objectives for application of ‘needs’ and ‘sharing’ principles’, and a checklist of factors that build on section 25 of the Matrimonial Causes Act 1973 for the court to consider when applying both objectives.
The model will also include a methodical approach to meeting needs, with the needs of any children being the first consideration, with codification of the definitions of ‘matrimonial property’ and ‘non-matrimonial property’, and the introduction of binding nuptial agreements.
No changes are suggested to the current remedies available under the MCA 1973.
The 23 questions in part one also invite respondents to consider proposals for the extent to which domestic abuse should be taken into account when considering the distribution of assets, consideration given to pensions accrued during the marriage, the legal recognition of qualifying nuptial agreements, and whether pre-marital cohabitation should count towards the length of a marriage.
Areas not considered to be in need of reform include restrictions on spousal maintenance and changes to financial provision for children over 18.
Part two: Reforming the law for cohabitants on separation
Part two of the consultation examines the case for reforming the law for cohabitants on separation, with proposals intended to protect children and those who are financially vulnerable, including women and victim-survivors of domestic abuse, including economic abuse.
The proposed legal protections would only be available to couples in “committed, romantic relationships”, defined as those who have lived together for at least three years, or who live together and share a child. The minimum age to apply under the cohabitation framework should be 18, and a two-year time limit on bringing financial claims following the end of a cohabitation relationship is proposed.
Core features of the model including a ‘children first’ approach, legal ownership as a starting point, a ‘needs-led’ framework less generous than on divorce, no better outcomes than marriage, and a strong emphasis on clean breaks.
Protections would apply automatically to cohabitants who meet the eligibility criteria, but couples can opt out o the rights and protections if they mutually agree to do so, subject to “appropriate statutory safeguards”.
Part two of the consultation draws on the criteria outlined in the Law Commission’s 2007 report examining the financial consequences of a relationship breakdown. Respondents are invited to consider the factors the court should take into account when considering whether individuals are cohabitants, including the existence of a joint household, joint financial arrangements, and the presence of a sexual relationship.
The ‘headline approach’ to determining outcomes when cohabitating couples separate should be needs-based, simple, predictable and easy to understand. Under the proposals, the court would apply a two-stage approach: prioritise children’s needs, and consider the individuals’ own financial needs. These may be linked to children’s needs.
The needs-based approach supports the government’s objective of preserving the distinct legal status of marriage by defining ‘needs’ more narrowly than on divorce, excluding discretionary needs. The government proposes the sharing principle should not be applied to cohabitants, with no starting assumption of a 50:50 split of relationship assets.
The government proposes making a wide range of remedies available to allow courts to respond flexibly to the facts of each case, including property adjustment orders, lump sum orders and pension sharing orders. The court would also have access to maintenance orders in exceptional circumstances.
Part three: Reforming the law for cohabitants on intestacy
Part three of the consultation addresses the law for cohabitants on intestacy, with proposals for reforms that better reflect the reality of modern relationships in the form of a “clear and simple model” under which qualifying cohabitants receive the same intestacy rights as spouses or civil partners.
A ‘marriage equivalence’ definition is proposed for identifying cohabiting partners, aligned with existing concepts in the Inheritance Act 1975. However, the government is “keen to hear a range of views”. The Law Commission’s recommendation of a five-year minimum duration period ending with the death of one of the partners is considered “a useful reference point” on which the consultation invites responses. Where a child is involved, the government proposes removing the qualifying period entirely.
Proposals are based on The Law Commission’s 2011 report Intestacy and Family Provision Claims on Death, which the government says identifies a clear and predictable approach that reflects modern relationships and ensures fairness for children and other relatives with an interest in the estate.
The government broadly agrees with the Law Commission’s recommendation that qualifying cohabitants should inherit under the intestacy rules in the same way as a spouse or civil partner, both in terms of the amount they may inherit and their position in the order of entitlement. However, it acknowledges that many will disagree with extending rights so that cohabitants are treated in the same way as married couples for the purposes of intestacy, particularly where intestacy would affect the entitlements of children.
Concerns may arise particularly where intestacy would affect the entitlements of children, including those from previous relationships, or other relatives and the consultation seeks a broad range of views on these issues.
Views are also sought on the proposal to offer qualifying cohabitants the same priority to apply for a Grant of Administration as a spouse or civil partner under the Non-Contentious Probate Rules, which the government says will “ensure consistency across the intestacy framework” and “provide a clearer, more predictable process for bereaved partners.”
The proposals also include provision to place qualifying cohabitees on an equal footing as a spouse or civil partner for the purposes of applying for Grant of Administration and propose to extend eligibility for Inheritance Act 1975 claims where cohabitants have shared children.
Responses to the consultation can be submitted until 14th August. Members of the public, legal professionals, academics, charities and other stakeholders are encouraged to contribute.
