With the government’s consultation on its proposals to reform rights for cohabitating couples set to close at 11.59pm tonight, representatives from the legal sector have begun to share their responses.
The Law Society of England and Wales welcomed plans to provide a clearer financial framework for families ending a marriage or cohabiting relationship, but emphasised the reforms will require improved legal aid provision to bolster support for children and domestic abuse survivors.
“The proposed reforms make the law clearer for families by bringing existing court principles on financial remedies into legislation, while retaining judicial flexibility”, the society said.
“It extends important protections to cohabiting couples following separation or when a partner dies without leaving a will. The reforms would also allow judges to consider the economic and financial consequences of domestic abuse when making orders.”
Read the Law Society’s consultation response in full.
Specialist probate lawyers represented by the Chartered Institute of Legal Executives (CILEX) oppose giving unmarried couples the same rights on the death of one of them as spouses or civil partners have, the membership body says.
However, “they should have more rights than they have now so as to finally bring some truth to the myth of the ‘common law’ spouse”.
Having surveyed probate lawyer members on the proposal to give cohabitants an automatic right to inherit when a partner dies without a will, CILEX identified the persistent myth of the ‘common law’ spouse as one of the main problems.
“Amending the law to be closer in line with public understanding may be beneficial”, the organisation said in a statement outlining its consultation response. “It may allow individuals to act in a certain way, legally towards their partners, when making decisions [such as] whether or not to have a will.”
On balance, however, CILEX probate lawyer members do not believe that qualifying cohabitants should receive the same intestacy rights as spouses and civil partners.
“If individuals wanted to give their cohabitant rights, they have the option to marry, or have a civil partnership with, their partner and the government should not overrule individual decision making,” CILEX said, adding many partners may have separate assets which they wish to go to children, parents or siblings instead, while there are increased risks of fraud.
If the government still wants to progress its proposals, CILEX believes it should acknowledge that defining cohabitation is likely to prove difficult, such as for those who only live part-time with their partners or not at all.
CILEX lawyers believe that couples should have to cohabit for at least five years to gain such rights, although this should be much less – or done away with altogether – if they have children. But CILEX supports removing the current two-year qualifying period for a cohabitee to make a claim for a share of the deceased’s estate, if they have had children together.
CILEX president Sara Fowler said: “CILEX support reforms that promote greater clarity, consistency and fairness, particularly through the codification of key principles. However, successful implementation will depend on robust judicial guidance, sufficient court resources, specialist training and effective public education to minimise disputes and improve access to justice.
“As family structures continue to evolve, reform must balance legal certainty with the flexibility needed to achieve fair outcomes, protect vulnerable individuals and children, and reflect the realities of modern relationships.”
According to inheritance lawyers at TWM Solicitors, the proposed intestacy reforms have “far too many loose ends” and leave cohabiting couples at risk of unnecessary disputes.
Madeleine Beresford, partner at TWM, believes unless the law clearly defines what constitutes a qualifying cohabitant, disputes over inherited estates are likely to increase.
She explained: “Everything in these reforms hinges on what a cohabitant actually is – and the fact that the government hasn’t defined it risks creating a significant new uncertainty. The government needs to explain how these reforms will work in practice. In inheritance, uncertainty creates disputes.”
Potential issues TWM believes will arise from the proposed reforms include questions about who decides eligibility and on what evidence and difficulties in identifying who qualifies as a cohabiting partner and who doesn’t. The firm also points out marriage currently revokes an existing will and asks whether cohabitation relationships carry the same consequences.
The proposed reforms also fail to extend the inheritance tax exemption to cohabiting couples, Beresford said. “While the intention may be to modernise the law and reflect contemporary family structures, there is a risk that any new framework could generate significant uncertainty, inconsistency and litigation”, she said.
The Society of Pension Professionals (SPP) has called for the modernisation of how pension assets are treated on the breakdown of marriages and cohabiting relationships in its response to the consultation.
“Pensions often represent a household’s largest or second-largest asset, yet historically they have been overlooked or undervalued compared to immediate needs like housing”, the SPP explained in a statement.
“The SPP recommends codifying the distinction between matrimonial and non-matrimonial property, placing pension needs on an equal statutory footing in financial remedy decisions, and extending pension sharing orders to qualifying cohabitants.
Key recommendations from the SPP’s consultation response include verified pension dashboard records to become a standard part of court disclosure, introducing pension sharing orders for qualifying cohabitants and extending eligibility for dependants’ pensions to cohabitants automatically, and establishing clear, objective legal definitions for ‘qualifying cohabitants’.
Oliver Topping, chair of the SPP’s Legislation Committee, said: “Pensions are fundamentally long-term assets designed to provide security in retirement, yet they are too often overlooked during relationship breakdowns. This is frequently to the detriment of the financially weaker party who may have taken career breaks for caregiving.
“Pension needs should be given equal prominence in family law and vital protections such as pension sharing should be extended to cohabiting couples.
“Harnessing the new Pensions Dashboards programme for court disclosure would be a game-changer in ensuring full transparency.
“However, to make these reforms workable in practice, policymakers must provide clear, objective criteria for defining qualifying cohabitants and allow the pensions industry sufficient lead-in time to adapt.”
See the SPP’s consultation response in full.
Laura Tanguay, partner and head of home ownership disputes in the property disputes team at Birketts LLP, shared her concerns that the case for reform is not as clear‑cut as suggested, and that the proposed approach risks creating as many difficulties as it seeks to resolve.
“Of particular concern is that the new regime would override existing agreements, including declarations of trust and cohabitation agreements, in which couples have carefully articulated what they want to happen in the event of their separation”, she said. “It is overly paternalistic and inappropriate for the state to cast such agreements to one side in favour of an imposed sharing system over which the parties have no control.”
The suggested three‑year qualifying period is an “arbitrary and totally insufficient proxy for commitment”, she added.
“Cohabitation often begins for practical reasons – such as reducing living costs or testing compatibility – rather than as a marker of financial interdependence or long‑term commitment. A relatively short period of shared living does not necessarily justify the imposition of potentially far‑reaching financial obligations.”
Tanguay also questions whether reform is required at all. “While the current legal framework can occasionally produce outcomes that may be perceived as unfair in some cases, that is true of any system. We already have a highly sophisticated judicial framework, with experienced judges accustomed to dealing with these disputes and a range of established principles under trust and property law, which allow the court to reach equitable outcomes.
“In my view, a more proportionate and effective response would be to improve public understanding of the law as it currently stands. The persistence of the ‘common law spouse’ myth demonstrates a significant gap in public awareness. The way to fix that is not to legislate it into reality.
“Many individuals simply do not appreciate that cohabitation alone does not confer automatic financial rights. Addressing that misconception would, in many cases, allow couples to make informed decisions about how to structure their affairs.”
Share your responses and feedback by email to press@todayswillsandprobate.co.uk
