The government’s consultation on its proposed changes to cohabitation law has concluded and we await the government’s decision on how to reform the law. Hopefully the government will prioritise it, despite the change of prime minister and justice secretary since the reforms were announced.
Opposition to the proposed changes has been voiced from a quarter that is perhaps a little surprising. I was expecting the usual suspects to oppose it: Conservative backbenchers and the like, trotting out the same tired old claim that any changes to family law in this country just undermine the institution of marriage. However, the opposition is coming from, frankly, far better informed and thoughtful commentators.
There have been complaints that the government slipped out the announcement of the planned changes quietly during the summer season so that it arrived under the radar. I saw this objection raised in the press, which I thought was a little rich. It’s the media’s job to inform us about political developments. I was surprised by the lack of press coverage about the proposals, despite their potentially seismic impact. The government’s announcement seemed to involve not a bang, but a whimper. The media must have been aware of it if the likes of me, a provincial solicitor and part-time blogger, heard about it. I can only assume that they didn’t consider it worth much press coverage at the time.
The main complaint made by those objecting to the changes is that it imposes a new law on people who had had arranged their lives so that they were not married and who now would find themselves in a position where the court could now make financial orders against them in the event that they separated.. It is unfair, they argue, for cohabitants to find themselves subject to potentially very different legal outcomes in the event that they separate.
The trouble with that argument is that it applies to every change in the law, ever. When a law changes, the legal landscape changes too. It is unavoidable. People will be affected by the change. Imagine arguing that pension attachment and pension sharing should not have been introduced in 1996 and 2000 because divorcing couples would then discover that claims could now be made against their pensions by their ex, something that was not possible when they married. Or arguing that no fault divorce should not be allowed, because people who had married years before assumed that if they divorced, it would have to be on a fault-based ground or after years of separation. If we accepted that argument, no law would ever change.
The Times carried an article where a woman cohabiting with her male partner complained that she had not got married because she wanted to protect her assets from claims by him in the event that they split up. This is an understandable concern, but the nothing in the article mentions that the proposals would allow a couple to agree to formally opt out of the new law by entering into a cohabitation agreement with the benefit of legal advice.
Baroness Deech argues that the new law would adversely affect women who have chosen financial independence and for whom cohabitation is a safe haven. She has also pointed out that the changes could place a cohabitant in a difficult position. What if they want to opt out of the new law, but their partner will not agree?
They would then have to either continue with their relationship and keep their fingers crossed that the relationship doesn’t break down or bring their relationship to an end before the law changes. I accept that may be a very difficult dilemma to face. However, the whole point of the proposed changes is to ensure that outcomes achieve fairness and meet people’s needs. The current law is very bad at doing that.
Baroness Deech argues that a coercive partner might refuse to opt out, thereby compelling their partner to submit to the new law or end the relationship. I think it more likely that coercive partners will want to opt out and their victims are less likely to. The new law may disadvantage some women, but it should benefit far more. opt outs will require independent legal advice which will help to protect abuse victims from being coerced into opting out.
She has also argued that the changes would expose cohabitants to potentially horrendously high legal costs. However, this ignores the fact that cohabitants already face the prospect of horrendously high legal bills if they have to litigate Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) property disputes in the civil courts or financial claims about children in the Family Court, with the added risk of an unsatisfactory outcome delivered by the existing inadequate law.
Another issue raised by Deech was the difficulty of defining cohabitation. There’s a very good blog about this by Joshua Rozenberg here. That may be an issue, but it is not insoluble. I have always found it difficult to define cohabitation. It’s one of those things that you know when you see it. Like an elephant, it’s difficult to define, but easy to recognise. At which point will a couple be regarded as cohabiting? When my wife and I began to live together before we married, she seemed to move in one piece of clothing at a time. I would say that cohabitation began on the day she sold her house and could no longer live there, but in truth we were already spending increasing amounts of time together.
Furthermore, you would be amazed how many people struggle to remember when they began to live together. Even I struggle a bit. I know the month and year when it happened, but I definitely cannot remember the exact date. People often cannot remember exactly when they separated. I have known people to remember these dates incorrectly, by days, months and even years. Furthermore, many people separate, but continue living under the same roof for a long time afterward. Some even carry on sharing the same bedroom. When did cohabitation end? Exactitude about when cohabitation began and when it ceased may be very relevant, given that the new law is likely involve a minimum period of cohabitation before it will apply, as well as a limitation period within which claims must be brought. These issues will no doubt create potential for factual disputes which may have to be decided by a court, but that does not mean that the reforms should not happen.
Another, rather better thought out, set of objections can be found here, including proposing different type of reform.
Many opponents to reform argue that there is a simple solution for people who want to gain better rights; they should put a ring on it and get married. This is horribly simplistic; what if their partner does not want to marry/? There will often be a perfectly legitimate reasonable objection to marrying, but sometimes abusive cohabitants refuse to marry as a means of exerting control over their victims, because they don’t want to risk financial claims if the marriage breaks down.
The need for additional resources was also raised by the lead family judge, His Honour Judge Edward Hess, who raised concerns that a significant rise in resources would be needed by the Family Court as it would now have to deal with an increase in disputes between cohabitants. Judge Hess comments that:
The general view of the body of judges is likely to be broadly to welcome the overall scheme of the reforms, though not all the details, in particular judges are generally convinced of the injustice of there being currently no available financial remedies for separating cohabitants.
The judge’s concern is that the court may not have the resources to cope with the new law. At the moment, TOLATA disputes actually take place in the County Court and not the Family Court, a ridiculous arrangement, not least because there is sometimes also a contemporaneous Children Act 1989 Schedule 1 financial claim being made in the Family Court. Even if the law is not changed, the court rules should be changed so that TOLATA claims take place in the Family Court.
The judge warned that it would not simply be a matter of TOLATA claims being transferred to form one court to another, there would also be an increase in caseloads. This was rebutted by Jo Edwards of Resolution who politely dismantled his figures arguing that he has made some unjustifiable assumptions:
With the greatest respect, the methodology underpinning the proportionate approach to working out nos [numbers] of new cases is flawed as it assumes that every one of the 3.5 million cohabiting couples would fall within the new framework. In fact, only around 60% would, as only around 60% of cohabiting couples meet the suggested eligibility criteria (and any increase in the no of years’ cohabitation required to qualify would reduce that proportion yet further). It also takes no account of positive impacts on court resources of codifying financial remedies for married couples, giving a statutory framework to nuptial agreements, etc, not to mention savings to the state elsewhere of having people take appropriate financial responsibility for joint choices made during a relationship. And finally, of course many would choose to opt out of any new framework for cohabiting couples, which reduces the nos yet further. And if there were a simple new law and funding for initial legal advice, that would be the optimum solution. One thing is clear – cohab reform is needed, and it is needed now.
Precisely how the proposed changes would work is not yet clear. Will it be like a divorce, where financial agreements should be incorporated into a financial consent order made by the court so that they are biding and enforceable? Or will we only resort to court applications where there is a disagreement between the parties; i.e. if the parties reach an agreement without starting a court battle, will we just rely on a separation agreement, so that the court is never involved? The latter would ease the burden on the court, but it would be necessary for the Family Court to have a process for enforcement of those agreements, rather than the current position where they have to be enforced by litigation in the County Court or High Court.
There have also been a number of comments, most notably, by Ricky Gervais that he needs to get married to avoid incurring inheritance tax if he or his partner die. Inheritance tax is not paid on inheritances received by a deceased person’s widow or widower, but it is payable on inheritances received from the partner of a deceased cohabitant. Unfortunately, the government is not proposing that the changes should free cohabitants from the burden of inheritance tax bills, nor does it appear to be suggesting that stamp duty should not be payable on transfers of property or capital gains tax on the transfer of assets between cohabitants.
If you would like to read Resolution’s response to the proposed new law, please click here. (Its response to the cohabitation reform starts on page 30).
I remain convinced of the need for reform as you will see from earlier numerous blogs on the subject which you can read here:
Cohabitation reform at last | Family Law Solicitor
Cohabiting is a matter of trust | Family Law Solicitor
Cohabitation law reform; what form should it take? | Family Law Solicitor
5 September 2026
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