Why cohabiting couples are back in the legal spotlight
Over the years, perceptions of what constitutes a family unit have evolved significantly. Despite this, the law has not caught up and the requirement for review is needed more than ever. According to Gov UK, there are currently over 3.5 million unmarried couples that live together and the legal framework governing cohabiting couples is long overdue for reform. Despite the astonishing number, cohabiting couples still lack legal protection which leaves many financially exposed. Despite what people might think, there is no such thing as a “common law spouse” in England and Wales.
Currently, there is no statutory framework for the Family Courts to divide cohabiting couples’ assets like there currently is for married couples as part of the divorce process. Instead, cohabitants are required to rely on trust law provisions not intended for their circumstances. In addition, they do not have an automatic right under the intestacy rules to inherit if their partner dies without a Will.
As of Friday 5 June 2026, the Government published a consultation paper called “A Fairer End to Relationships” which addresses the limited set of protections available to cohabitants under the current law and sets out proposals for change upon separation and death, whilst also expanding the law for financial remedies on divorce.
The consultation is due to close on 14 August 2026.
What are the proposed changes to cohabitation law?
This consultation paper introduces a potential new legal framework for qualifying cohabitants which will give them a distinct set of rights that differ to married couples. There are three areas addressed as part of the reform:
1.) The law of financial remedies on divorce and dissolution
The consultation invites consideration of a codified approach that would incorporate established case law principles, such as “needs” and “sharing” into legislation to make the law both clearer and more accessible. This will hopefully reduce the number of couples that are required to resolve matters at court.
It also looks at qualifying nuptial agreements (pre and post) which would provide couples with a binding financial arrangement for their property and assets which could be relied upon when the relationship ends.
2.) The law for cohabitants on separation
The statutory framework will provide rights and protections upon separation. Although narrower than the legal framework available for divorce, it will provide the necessary protection for cohabitants and most importantly for vulnerable groups such as women, children and victim-survivors of domestic abuse. Qualifying cohabitants will be given the right to make financial claims on separation under this new framework.
3.) The law for cohabitants on intestacy
Under the current law, cohabitants do not have an automatic right to inherit through the intestacy rules if their partner dies, causing financial hardship. The statutory framework seeks to modernise this and provide qualifying cohabitants with this automatic right and access to financial provision from a deceased partner’s estate.
The aim of this framework is not for cohabitants to be in a more favourable financial position than those who are married and divorcing and therefore assessments by the court will be narrower than on divorce.
This is one of the most significant proposed changes in decades for cohabitants. Whilst it remains under review, and is only at the consultation stage, this is still considered a positive step in the right direction. There is however no timeframe for when the proposals will be implemented.
Who could qualify for the new legal protections?
Anyone considered a “cohabitant” will qualify for the new legal protections.
Current legislation defines cohabitants as “two people living together as partners in an enduring family relationship”, with there being a focus on the length and commitment of that relationship.
The legal framework will apply to the following:
1.) A couple who has lived together for a minimum period of three years; or
2.) A couple who live together and have a child, or a child is present in the family home and is considered a child of the family. The court is interested in focusing on committed relationships whilst making sure the child(ren)’s needs are being met.
A married couple or civil partner would not be eligible to make an application under the framework.
There will also be a minimum age of 18 to make an application under the framework, which is consistent with the current age for marriage, and couples will need to ensure that applications are made within two years of the cohabiting relationship ending.
Any cohabitant framework is likely to be more limited than marriage and may include an opt-out model where cohabitants who qualify will be covered by default with the option to opt-out of these rights and protections if mutually agreed. Careful consideration will need to be given to how this is safeguarded without making matters more complex or expensive. Similar safeguarding that you would see in nuptial agreements are likely to apply such as: valid contract, agreement executed as a deed, financial disclosure and independent legal advice.
How could the changes affect your home, finances and separation rights?
This will have a significant impact for cohabitants on separation particularly in relation to property and finances. There will be a shift from strict property law where disputes about the ownership of property are mainly governed by trust law, and where legal documents such as title deeds/mortgages are used to determine ownership. Claims for unmarried couples are dealt with under the Trusts of Land Appointment of Trustees Act 1996 (“TOLATA”).
Under the proposed model, the sharing principle would not apply and the starting position would be that each person keeps what they legally own unless the needs of the individual warrants a departure. A needs-based approach will prioritise fair outcomes for any child of the family as well as protecting the vulnerable e.g. women/men who have reduced their earnings or leave the workforce to carry out childcare responsibilities. It also offers protection for victims/survivors of domestic abuse.
It is proposed that the court will apply a two-stage approach when considering the needs for departure:
Stage 1: The children’s needs will come first.
Stage 2: Consideration of the individuals’ own financial needs. A similar list of factors to those contained within Section 25 Matrimonial Causes Act relevant for married couples will likely be considered in ensuring the needs-based approach is fair and consistent for cohabitants, with the addition of the new compensation factors e.g. earning capacity; financial resources of each individual; any physical or mental disability; age and length of relationship.
Discretionary needs, other than what is necessary, will most likely be excluded from any consideration the court has of needs for cohabitants and maintenance orders will only be available in exceptional circumstances. This emphasises the court’s expectation that there should be a clean break between former cohabitants. Pension sharing orders could be available, but will not be a default position within the framework.
The introduction of the cohabitation framework would reduce the reliance of cohabitants on complex and costly TOLATA claims. Those who do not meet the eligibility criteria, have opted out or who have become time-barred from pursuing a cohabitation claim under the framework will still be able to make claims under TOLATA 1996 to resolve property disputes.
What about inheritance and protecting your partner if you die?
Currently, under the legal framework governing intestacy, if an individual dies without a Will, a cohabitant does not have an automatic entitlement to inherit, requiring them to seek relief under the Inheritance (Provision for Family and Dependants) Act 1975. This process can be uncertain and costly for individuals. It is therefore important that whilst the law remains unchanged for intestacy, the cohabitants have sufficiently drafted Wills.
It is proposed as part of the consultation that reforms to the intestacy rules are implemented to better reflect the reality that long-term cohabitation is a common form of relationship. This would give qualifying cohabitants the same automatic rights as married/civil partners.
The legal framework will also review the entitlement for qualifying cohabitants to administer the deceased’s partner’s estate and where the cohabitants have children together, removing any time limit on applications for financial provisions to be made from a deceased partner’s estate.
This will have to be finely balanced so that it does not impact the interests of children, particularly those from previous relationships, and the consultation seeks views on how this should be best navigated.
How Goughs can help
Even though these changes are not yet law, the risks for cohabiting couples already exist—and in many cases, they are significant. Acting early can provide clarity, protection and peace of mind, regardless of whether the reforms go ahead.
At Goughs, our experienced family and property specialists can help you take practical steps now, including:
- Drafting cohabitation agreements to set out financial arrangements clearly
- Advising on property ownership structures and declarations of trust
- Supporting with TOLATA claims where disputes have already arisen
- Preparing wills and estate planning to ensure your partner is protected
If you would like tailored advice on your situation or want to future-proof your arrangements ahead of potential legal changes, visit Goughs or speak to our team of cohabitation and TOLATA experts today.
