New proposals could draw cohabiting couples into marriage-style commitments – here's why

New proposals could draw cohabiting couples into marriage-style commitments – here's why

Millions of couples in England and Wales who live together without marrying could soon acquire legal rights they have never had before. The Government opened a consultation in June on a sweeping reform of cohabitation law, proposing a statutory scheme that would give unmarried partners financial claims on separation and the right to inherit if their partner dies without a will. The proposals, if implemented, would represent the most significant shift in family law for a generation — and would finally dismantle the persistent myth that a "common-law marriage" offers any real protection.

According to the Office for National Statistics, there are now around 3.6 million cohabiting families in England and Wales, up from roughly 2.7 million in 2008. One in eight people aged 16 and over is living with a partner. The number of couples forming cohabiting relationships now exceeds the number getting married, and marriage rates have fallen to their lowest level since 1862. Yet the law governing what happens when those relationships end has barely moved in decades.

What is being proposed

The consultation, launched by the Ministry of Justice, covers three linked areas of reform: financial remedies on divorce and dissolution, rights for cohabitants on separation, and rights for cohabitants on death under the rules of intestacy. The central proposal is a new statutory scheme that would give cohabiting couples financial rights when a relationship ends — rights that currently exist only for married couples and civil partners.

Under the current law, when a married couple divorces, the court has wide powers to divide property, pensions and assets. When a cohabiting couple splits, there is no such mechanism. The family home, savings and pensions are treated under general property law, which often produces arbitrary and harsh results. The proposed scheme would change that, creating a clear statutory framework for financial settlements between cohabitants.

The Government's stated intention is to create clearer, more predictable outcomes and to reduce the scope for expensive, acrimonious disputes when relationships end. Family lawyers have long argued that the current system encourages litigation because the law is so uncertain. Couples who have lived together for a decade can find themselves in court for years, with outcomes that depend more on the quirks of property law than on the realities of their shared life.

Who would qualify

Eligibility would depend on several factors, most notably the duration of the relationship. Couples would typically need to have lived together for at least three years, or to share a child together, to qualify for the new rights. The three-year threshold is designed to distinguish between short-term arrangements and genuine, committed partnerships.

The proposals would apply to opposite-sex and same-sex couples alike, reflecting that cohabitation is now a mainstream family form across British society. The Government is also consulting on whether couples should be able to opt out of the new rights by formal agreement — a recognition that most cohabiting couples never make legal arrangements, and that forcing them to do so would leave the most vulnerable unprotected.

There are, however, significant details still to be resolved. The consultation asks for views on how the threshold should be calculated, whether periods apart should interrupt the clock, and how the scheme should interact with existing property law. The final design of any scheme has not been confirmed, and the Government has made clear that nothing has changed yet. Any legislation would require full parliamentary scrutiny and is expected to take years rather than months.

The common-law marriage myth

At the heart of the case for reform is a persistent and damaging misconception. Family law body Resolution has warned for years that millions of cohabiting couples wrongly believe they have the same rights as married couples. A Resolution survey found that most cohabitants do not realise they lack automatic claims — on the property they live in, for example — if they split up. This false belief makes them less likely to protect themselves, for example by drawing up cohabitation agreements or making wills.

The term "common-law marriage" is a legal fiction. It has had no basis in English law since 1753, when the Marriage Act brought marriage under formal regulation, yet the myth persists. The consequences can be devastating. A partner who has given up work to raise children, or who has contributed to the household in non-financial ways, can find themselves with nothing when the relationship ends — no claim on the family home, no share of the pension, no entitlement to maintenance.

Resolution has campaigned for reform for more than two decades, and its research shows the gap between public perception and legal reality is widening. The Law Commission recommended statutory rights for cohabitants as long ago as 2007, but successive governments declined to act. The current consultation represents the first serious attempt to address the issue since then.

What happens on death and inheritance

The second major area of reform concerns what happens when a cohabiting partner dies without a will. Under the current rules of intestacy, the surviving partner does not automatically inherit anything, unless the couple jointly owned property. This means that a person who has lived with their partner for 20 years, shared a home and raised children together, can be left with nothing if their partner dies suddenly without making a will.

The proposed scheme would change this, giving cohabiting partners a right to inherit on intestacy. The details are still under consultation, but the principle is clear: long-term cohabiting partners should be treated more like spouses when it comes to inheritance. This would bring England and Wales into line with Scotland, where cohabiting partners already have rights to claim on a deceased partner's estate.

The inheritance proposals are particularly significant because they affect people unable to plan ahead. A will is a simple document, but most people do not have one. Research suggests around six in ten adults in England and Wales die without making a will. For cohabiting couples, the absence of a will can be catastrophic, leaving the surviving partner homeless and without financial support at the very moment they are grieving.

What it means for families and the wider picture

The reforms, if implemented, would have profound implications for family life across England and Wales. They would affect not just the couples themselves but their children, extended families and financial planning. The scheme would give cohabiting parents the same financial protection on separation that married parents receive, ensuring children are not disadvantaged by their parents' marital status.

The wider picture is one of legal lag: family law has been built around marriage, but marriage is no longer the dominant form of partnership. The ONS data shows that cohabitation is now the fastest-growing family type. The law has failed to keep pace, leaving millions of people in a legal limbo where their most important relationships have no formal recognition.

There are economic dimensions too. The current system imposes costs not just on individuals but on the state. When cohabiting couples separate, disputes over property often end up in court, consuming judicial time and public money. When a cohabiting partner dies without a will, the surviving partner may end up reliant on benefits or local authority housing.

Critics of the reforms argue that they would undermine the institution of marriage by blurring the distinction between marriage and cohabitation. Some religious groups and social conservatives fear the proposals would impose marriage-style obligations on couples who have deliberately chosen not to marry. The Government has sought to address these concerns by consulting on an opt-out model that would allow couples to contract out of the new rights if they wish.

What happens next

The consultation remains open and the Government has not yet published its response. Any changes would require Parliament to pass primary legislation, and the final design has not been confirmed. No legislative timetable has been set, and even in the best case new rights for cohabiting couples are unlikely to come into force for several years.

In the meantime, family lawyers are advising cohabiting couples not to wait. The proposals, if implemented, would apply only to relationships that meet the eligibility criteria at the time the law changes. Couples who want to protect themselves now can draw up cohabitation agreements, make wills and ensure property is held in joint names. Resolution has published guidance, and many high-street solicitors offer fixed-fee cohabitation advice.

The consultation marks a genuine turning point in the long campaign for cohabitation reform. After years of inaction, the Government has finally acknowledged that the law is out of step with the way millions of people actually live. Whether the proposals survive the legislative process in their current form remains to be seen, but the direction of travel is clear.

This article was produced with AI-assisted research and editorial support. Sources: The Independent, Resolution, the Office for National Statistics and UK family law firms.

By Erica Thornton, Staff Writer