The government has announced that it intends to change the law relating to cohabiting couples. This should provide cohabitants with greater rights than they currently have, as well as a more family-orientated framework and procedure than exists at present.
The current law relating to cohabitants and their finances is woefully inadequate. More and more couples live together without marrying, but the law has failed to keep pace with these changes in society. The current law frequently results in outcomes that do not meet the parties’ needs. Disputes about property are classed as civil litigation and claims have to be brought under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), so a totally different and, I would argue, inappropriate procedure and law applies to the one that is used in family law cases involving divorcing couples. If the couple have children and claims can brought for financial provision for those children (but not for their parents) under Schedule 1, Children Act 1989, but this cannot be used to meet the parents’ needs, just the children’s.
(There are also plans to introduce a codification plus reform of divorce financial remedy law, qualifying nuptial agreements – QNAs, i.e. legally binding pre-nuptial agreements – and better inheritance rights for changing couples. However, in this blog I am concentrating on the law that applies to cohabitants who separate. Also for the avoidance of doubt, when I refer to marriage and divorce, this includes civil partnerships and dissolutions).
The government had a choice of proposing either a difference model (i.e. better rights than they have now, but not the same rights as married couples) or a de facto model (i.e. the same rights as married couples). The government has chosen the former option. In my view, that is regrettable. Adopting these same law would have provided greater certainty for separating couples as lawyers would be able to apply the same established case law as in divorce proceedings, whereas a whole new body of caselaw is going to have to developed for cohabitants. There is no evidence that a de facto model would deter people from marrying; a de facto model exists in Australia and New Zealand and the marriage rate was unaffected. Mercifully, the proposed new system will be similar, if not the same as the existing law.
There has been surprisingly little press coverage of this announcement so far, given its seismic importance. This morning’s Times makes no mention of it. I cannot find anything online to indicate what the Conservative Party’s view is; their policy in the past has been to oppose reform as they regard it as undermining the institution of marriage. Political and media attention is focussed elsewhere at the moment, on the issues of alleged two-tier policing and the Makerfield “prime ministerial by-election”.
The announcement has resulted in a flurry of mad nonsense in response to the justice secretary and Lord Chancellor David Lammy’s post announcing it on X; more than a few people there seem to think that the new law is a plot to allow unregistered marriages under Sharia law and to allow illegal immigration to increase. The people posting that ignorant nonsense often include the Cross of St George flag and the Union Jacks in their X profiles, so, frankly, draw your own conclusions.
There are also inevitably going to be people who claim that this will be a bonanza of work for lawyers. However, it is worth bearing in mind that we already act for unmarried clients who separate and the current woeful state of the law, with its inherent uncertainty and potential unfairness, only makes disputes and legal fees more likely. Furthermore, the ability to opt out of the new law may mean that many people enter a cohabiting relationship with greater confidence about what will happen if they split up, which reduces the potential for expensive disputes, especially if they opt out using a properly prepared cohabitation agreement.
The principal parts of the proposed cohabitation reforms are as follows:
- To qualify under the new law, a couple must either have cohabited for a minimum of three years, or they must have a child and have lived together, in which case the three year minimum period will not apply.
A minimum period of cohabitation is sensible, but it will inevitably lead to arguments about when a couple began to cohabit. In my experience, it is very common for clients to be unsure about when they started to live together. Some people move in gradually. They can also often be very unclear about when they moved out. What happens in a case where the relationship ends, but the parties carry on living at the same address?
Just having a child together will not be enough, the parents will need to have lived together. But the proposed new law also says that it will include cases where “there is a child present who is considered a member of the family (a “child of the family”). A child of the family would be considered on a similar basis as on divorce and would include a child of both individuals or any child whom both individuals have treated as a child of the relationship, excluding foster children who have been placed by a local authority.”
Couples who do not cohabit for long enough or bring their claims in time will still be able to use TOLATA to resolve their disputes. It is not clear if TOLATA claims will continue to be decided by the civil courts or if they will be handled by the Family Court.
2. A claim must be brought within two years of the end of the cohabiting relationship.
Again, I can see the potential for arguments there. When exactly did the relationship end? When it broke down? Or when one of the parties moved out?
3. Cohabiting couples will be eligible to seek the same range of financial orders as a divorcing couple, including property adjustment orders, lump sum orders and pension sharing orders, but while periodical payments orders (i.e. spousal maintenance) would be possible, this would be limited to exceptional circumstances, such as where there are serious health issues or disability. Such periodical payments orders would be for a limited duration and would not be capable of being extended. The government also proposes an explicit safeguard that awards made to cohabitants by the court cannot exceed those that would have been reasonably ordered on divorce in otherwise identical circumstances.
4. When dividing assets between the parties, the starting point will be that each person keeps what they legally own, but this can be departed from if it is necessary to meet an individual’s defined needs. Discretionary needs beyond what is necessary would not be included, even if resources are available.
5. Cohabitants can agree to opt out of the new law. An opt out agreement must involve the following:
- Contract validity: the agreement must be a valid contract without, for example, undue influence or misrepresentation.
- Execution as a deed: the agreement must have been made by deed and must contain a statement signed by both individuals that they understand that the agreement is an opt-out agreement that will remove the ability of either party to make an application under the cohabitation framework.
- Material financial disclosure: each party to the agreement must have received, at the time of the making of it, disclosure of material information about the other party’s financial situation.
- Independent legal advice: Independent legal advice for each party signing the opt-out, to ensure each understands the legal effect and consequences of the agreement.
- It should not be possible for a party to waive their rights to disclosure and legal advice.
- Any variation of an agreement must meet the requirements listed above.
The best way to do this would be by entering into a formal cohabitation agreement (also known as a living together agreement). As well as validly opting out of the new law, it would also enable the parties to set out a precise agreement about what would happen in the event that their relationship ends, making it clear what they agree is their financial entitlement to a share in a property etc., if any.
Couples who opt out of the new laws would still be able to bring TOLATA claims, but a well-drafted cohabitation agreement should of course make that pointless.
The proposed reforms are now subject to a consultation process that will end on 14 August 2026. Hopefully, the government will then grasp the nettle and get the reforms passed by parliament.
The comedian, historian and podcaster Al Murray posted on X that the proposed new law is “Not having your wedding cake and eating it.” That’s quite funny, but in truth it’s about achieving fairness and meeting people’s needs, and it cannot come soon enough.
6 June 2026
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