Blog Journal Domestic Abuse Cohabitation Reform

A Fairer End to Relationships? What the Reform Debate Tells Us about Families, Fairness and the Future of Separation Law – A Personal Review of the Responses from a Part-time Judge and Hybrid Mediator

This article focuses on the responses of four well-respected organisations to the government's A Fairer End consultation: Rights of Women, the Family Solutions Group, Resolution and the Family Law Bar Association.

When relationships end, the law is often asked to do something very difficult. It must untangle money, property, pensions, children’s needs, caring roles, vulnerability, and sometimes abuse, at precisely the moment when trust and communication may have broken down. The government’s consultation, ‘A Fairer End to Relationships’, is therefore more than a technical review of family finance law. It is a test of how modern family law should respond to the reality of family life in England and Wales. The governing statute for finances on divorce was introduced some 56 years ago (originally introduced in 1970 and consolidated in 1973 and the only subsequent amendments in 1984). Is there need for reform and how has it stood the test of time? Has it adapted to modern relationships?

Published in June 2026 and closing on 14 August 2026, the consultation brought together three connected areas of reform: financial remedies on divorce and civil partnership dissolution, financial protection for separating cohabitants, and inheritance provision for cohabitants where one partner dies without a will. The government described its aim as making financial provision at the end of relationships clearer, more consistent and better aligned with modern family life. It also proposed a ‘codification-plus’ approach to divorce finance, being one of the four models that had been proposed by the Law Commission, introducing statutory principles of sharing and needs, alongside possible qualifying nuptial agreements and new rights for eligible cohabitants.[[1]]

One of the advantages of working both as a judge and as a mediator is seeing family disputes from different perspectives. As a judge, I see cases that have reached the point where agreement has become seemingly impossible. I see parties entrenched in positions that often bear the scars of years of conflict, mistrust and sometimes abuse. As a mediator, particularly in hybrid mediation where lawyers and other professionals can be involved within the process, I often see something different. Here, the parties can still be in conflict, but the process helps them find a way forward through assisted dialogue. I see people who may still be able to find solutions if the process is designed carefully enough to manage power imbalances and create a safe environment for discussion.

What both roles have taught me is that many of the consultation’s most important questions cannot be answered solely by reference to legal doctrine. They must be tested against the reality of family life.

The law is often dealing with relationships in which one person earned while the other cared for children, relationships in which one partner controlled the finances, relationships in which one party had little knowledge of the family’s assets, or relationships in which coercive control shaped almost every aspect of decision-making. Those realities should sit at the heart of any reform programme.

In this article, I focus on the responses of four well-respected organisations, each with an in-depth practical knowledge of family law, family relationships and the processes used to resolve disputes. They are Rights of Women (RoW); the Family Solutions Group (FSG) – a multidisciplinary body comprising solicitors, barristers, mediators, psychologists, academics and judges; Resolution – the organisation for family professionals; and the Family Law Bar Association (FLBA) – the Bar association for specialist family advocates and fee-paid judges. Also included in the analysis is a series of contributions by different authors for the Financial Remedies Journal (FRJ) covering the consultation. Their respective responses can be found here:

The responses and commentary from Resolution, RoW, FSG, FLBA and contributors to the FRJ show a striking degree of agreement that reform is needed. They also reveal important differences about how far codification should go, how much discretion judges should retain, how domestic abuse should affect outcomes, and whether preserving the distinct status of marriage and civil partnership risks undermining the protection of vulnerable cohabitants and children.

The first common theme: reform is needed, but clarity must not become rigidity

There is broad agreement that the present law is too difficult for ordinary people to understand. Resolution supports reform across the consultation’s three areas and broadly supports the scheme proposed, subject to practical ‘fine-tuning’. It emphasises that its members regularly see the consequences of legal uncertainty, particularly where people cannot afford advice or assume they have rights that do not exist.

RoW also welcomes reform, particularly where it improves clarity, safety and fairness for women, children and victim-survivors of domestic abuse. However, it cautions that codification must not become a rigid rulebook. In its view, clear statutory principles are helpful only if they preserve sufficient judicial discretion to respond to the facts of individual cases, especially where domestic abuse or economic abuse has distorted the financial picture.

The FSG broadly supports reform and the government’s codification-plus approach. However, it argues strongly that any new framework should preserve judicial discretion while placing children’s welfare at the centre of decision-making. The FSG supports greater clarity and accessibility but warns that artificial distinctions, particularly between ‘essential’ and ‘discretionary’ needs, risk increasing disagreement rather than reducing it. The Group’s response consistently approaches reform through a child-centred lens and argues that legal reform should be judged by whether it improves outcomes for children experiencing family separation.

The FLBA reaches a similar conclusion. It says that fairness should be the guiding principle and the prism through which reform is viewed. There is no ‘normal’ family case, and an over-prescriptive statute may produce predictable outcomes for some families while causing serious injustice in others. It therefore supports codification-plus only if the court retains sufficient discretion to survey the overall result and correct an outcome that would otherwise be unfair. This places it close to Resolution, RoW and the FSG, although its emphasis is particularly forensic when considering matrimonial and non-matrimonial property (and the potential for ‘matrimonialisation’ of the latter) with a particular consideration of mixed assets, businesses, inheritances, post-separation accrual, different asset qualities, relationship-generated disadvantage and cases where neither party’s needs can fully be met (FLBA, paras 7–11 and 26–83).

The most significant themes that occur to me from the FSG submission are:

  • Child welfare should be the primary, not merely the first, consideration in financial remedy reform.
  • Reform should remain a codification-plus model, preserving judicial discretion while providing greater structure and certainty.
  • The proposed hierarchy of needs risks creating unnecessary disputes and should not distinguish between ‘essential’ and ‘discretionary’ needs.
  • Children should not experience materially different outcomes because their parents were unmarried. This is a theme that RoW lead on too.
  • Greater emphasis should be placed on early resolution, non-court dispute resolution (NCDR), mediation and child-focused processes.
  • Public education is essential to dispel myths such as common law marriage.
  • Financial reform should be assessed through the lens of the child’s welfare, emotional well-being and long-term development, not solely adult financial entitlements.

The need for reform is also a major theme in the FRJ coverage. It has published a variety of articles on the reforms by practitioners from a variety of standpoints and experience. Its collected articles include commentary on the overall shape of the consultation, the hierarchy of needs, domestic abuse, children, cohabitation reform and qualifying nuptial agreements.

The shared message across all of these responses is therefore not ‘leave the law alone’ but reform it carefully. A statute that merely replaces flexible case law with hard-edged assumptions may make the law look clearer, while producing less fair outcomes in real life.

Equal sharing: a useful starting point, but not always a fair destination

The government’s consultation identifies the sharing and needs principles as the foundation for financial remedies reform. One of the central proposals is to codify the sharing principle. In simple terms, this means recognising that matrimonial property should usually be shared equally. This is not as straightforward as it seems, as illustrated by the Supreme Court case of Standish v Standish [2025] UKSC 26.[[2]] Though the subject assets of the case were found to be non-matrimonialised and therefore not for sharing, if it had been established that they were ‘matrimonial’ is the division required to be equal, or the starting point equal and the section 25 factors applied? There needs to be clarity. This is discussed in more detail by Nicholas Allen KC in ‘Standish One Year On – Is There Agreement As to What It Means?’[[3]]

Resolution broadly supports equal sharing as a starting point, but strongly resists any suggestion that equal sharing must always mean a 50:50 division of every matrimonial asset. It proposes wording that would make equality a starting point within an overall objective of fairness, rather than an inflexible rule. Resolution gives examples where equality by value may not be fair, including cases involving businesses, partly matrimonial assets, post-separation endeavour, domestic abuse, or cases where needs require a different outcome.

RoW goes further in its critique of the government’s formulation. It answers ‘no’ to the proposed objective if that objective is understood as dividing matrimonial assets equally. Its concern is that equal division of assets does not necessarily deliver equal benefit. A partner who has given up work or reduced earning capacity to care for children may receive half the capital but still face a much weaker financial future than the higher-earning partner.

This is an important public point. Fairness is not just about what is in the bank account on the day of separation. It is also about how the relationship shaped each person’s future financial life. A parent who has stepped back from paid work may have lost career progression, pension growth and earning capacity. A survivor of economic abuse may have no assets in their own name, even after a long relationship. They may also have a weaker earning capacity because of the effects of the coercive and controlling behaviour and economic abuse, which are not easily quantified. But as the case of Waggott v Waggott [2018] EWCA Civ 727 confirms, earning capacity is not a matrimonial asset and is therefore not subject to the sharing principle.

An apparently equal division may therefore conceal a very unequal future, especially where responsibilities forged during the relationship continue after separation.

The likely consensus is that equal sharing should remain a powerful and comprehensible benchmark. The conflict lies in whether it should be expressed as the objective itself, or as one route to fairness. Resolution and RoW both prefer the latter.

The FLBA broadly agrees that wealth clearly generated by marital endeavour should normally be shared equally, but strongly rejects categorical language. It identifies businesses that straddle the marriage, homes introduced by one spouse, mingled assets, inheritances used for the family, deferred remuneration and cases in which one spouse retains risky or illiquid assets while the other receives cash or property. It also treats relationship-generated disadvantage as a reason why equal capital may not address an unequal future. The FLBA is therefore close to Resolution’s position and overlaps with RoW’s concern that equal division does not necessarily produce equal benefit. Its distinctive contribution is the detailed, asset-by-asset, explanation of why a mandatory 50:50 rule could fail (FLBA, paras 26–60).

In my experience as a judge, solutions-focused lawyer and mediator, the starting point may well be an equal share of the matrimonial assets. Once the statutory factors are taken into account, particularly needs, children, responsibilities and earning capacity, the outcome is often not an equal division, but it may nevertheless be a fair one.

Needs: the danger of creating a hierarchy that shrinks fairness

The government proposes that the court should consider needs in a structured way, starting with children’s welfare, then capital and income needs including housing and pension needs, and then further discretionary needs where resources allow.[[4]]

At first glance, that may appear sensible. Most families do not have enough money to meet everyone’s aspirations. Prioritising children, housing, income and retirement provision is intuitively attractive. But several responses and commentators identify a real risk: once needs are put into hierarchical categories, arguments may shift from ‘What is fair?’ to ‘What is essential?’.

Resolution is particularly concerned that separating needs into different stages could make settlement harder and encourage financially stronger parties to argue that only basic needs should be met. It warns that this could be especially damaging in modest asset cases and could echo older approaches that limited awards to ‘reasonable requirements’, an approach heavily criticised in the modern law of financial remedies. Resolution instead suggests a two-stage approach: first, the welfare of children; second, capital and income needs, including housing, income and retirement, assessed in the context of all relevant factors.

RoW’s concerns are related but framed through substantive fairness and safety. It argues that the law must expressly recognise relationship-generated economic disparity, including the long-term financial consequences of caring responsibilities, interrupted careers and economic abuse. It is wary of any model that leaves the economically weaker partner with only a narrow version of needs while the other partner retains the benefit of earning capacity built during the relationship.

The FSG also opposes the government’s proposed three-stage hierarchy. It argues that attempts to distinguish between essential and discretionary needs are unlikely to work in practice because needs are highly contextual. What may appear discretionary for one family may be integral to a child’s welfare in another. The FSG considers that dividing needs into categories risks generating further disputes and increasing parental conflict, contrary to the consultation’s objective of improving certainty.

The FLBA is equally firm in opposing the proposed three-stage hierarchy. It agrees that children’s welfare should receive first consideration, but says that separating ‘basic’ from ‘discretionary’ needs will generate argument, require evidence and increase cost. A need is contextual. Private education, suitable housing, retirement provision, disability-related expenditure or ordinary aspects of a child’s life cannot sensibly be classified in the abstract. The label ‘discretionary’ may invite the financially stronger party to minimise the other’s needs. In this respect there is unusually strong convergence between Resolution, the FSG and the FLBA, with RoW reaching a similar conclusion through its focus on substantive inequality (FLBA, paras 84–112).

The FRJ coverage also identifies the ‘hierarchy of needs’ as a major area of debate, including specific commentary questioning whether the distinction between different categories of need can be policed easily in practice.

For the public, the concern is this: a hierarchy designed to improve clarity may instead create new disputes. Is a child’s stable home an essential need or a lifestyle need? Is pension provision a present need, a future need, or a discretionary one? Is a holiday with children a luxury in one family but part of ordinary life in another? Does a focus on the children’s needs also mean private education costs are put as greater priority rather than securing capital for the financially weaker party. It should not in my view.

The law may need structure, but it must avoid a vocabulary that invites people to minimise the other person’s needs.

Children: everyone agrees they matter, but how much does the law really protect them?

There is strong agreement that children should be at the centre of reform. The government identifies fair outcomes for children as one of the consultation’s underpinning principles.

If there is one issue on which the FSG response is particularly distinctive, it is its insistence that child welfare should become the primary organising principle of any reformed system. The FSG proposes that welfare should be given a broader statutory definition extending beyond financial needs to encompass emotional, psychological, environmental and safeguarding considerations. It further proposes restructuring the statutory checklist itself so that child-focused factors appear before adult-focused factors. In effect, the Group argues that family finance law should become far more explicitly child-centred than it currently is.

On page 9 of its report, the FSG proposes an amendment to s 25 Matrimonial Causes Act 1973 as follows:

‘As stated above, we agree that children’s welfare belongs at Stage 1 of the needs’ hierarchy, ahead of the adults’ capital, income and discretionary needs (which we recommend are not segregated). However, we are concerned that sequencing alone will not deliver the shift in practice that this reform is intended to achieve.

There is a real risk that, under the proposed model, Stage 1 becomes a similarly brief “gateway” nominally first, but not subjected to the same rigorous, evidenced analysis that Stages 2 and 3 (or as revised) will attract for the adults’ needs. This, we suggest, is what routinely happens under the current legislation.

Sequencing addresses order; it does not by itself address depth of scrutiny.

As referred to at 7 above, in current practice, the s25(3) child related factors are rarely referred to, and the court largely focuses on the children through the detailed s25(2) adult factors. Although there is reference to “first consideration … to the welfare” of a child in s25(1), this is interpreted in practice with reference to the child’s housing and income needs, without there being wider considerations of other critical elements of their overall welfare.

We therefore recommend an amendment to Section 25 itself rather than relying on procedural ordering alone:

We propose merging the adult and children’s factors of s25(2) and s25(3) into a single, unified, child-first checklist, rather than treating stage 1 as a standalone preliminary step ahead of a separately detailed adult analysis.

We believe the checklist should begin with s25(3) child-focussed factors before including the existing s25(2) factors. It does not make sense that they are reversed given that s25(1) is primarily about the children and then adult factors are listed before the child-focussed factors are listed thereafter.

We propose adding extra factors to those in the current law in s25(3) as set out below.

A worked illustration could be:

“.. primary consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen… [CURRENT LAW SAVE FOR ‘PRIMARY’ RATHER THAN ‘FIRST’ CONSIDERATION].

Then as regards the exercise of the court’s powers under the Act: The court shall in particular have regard to the following matters, with primary consideration being given to (a)–(f) [child factors]: [wording mirrors the existing s25(3), but with additional wording in CAPITALS]

(a) the financial needs of the child

(b) The income, earning capacity (if any), property and other financial resources of the child

(c) Any physical or mental disability OR OTHER SPECIAL NEED of the child

(d) The manner in which he was being and which the parties to the marriage expected him to be educated or trained

(e) THE LIKELY EFFECT OF ANY CHANGE IN CIRCUMSTANCES ON THE CHILDREN;

(f) THE PHYSICAL, EDUCATIONAL AND EMOTIONAL NEEDS OF THE CHILDREN;

…. Then continue with adult factors as set out in current s25(2)(a)–(h). We also recommend an addition to the existing s 25(2)(b), so that after ‘responsibilities’ it should be: ‘INCLUDING THE PARENTAL RESPONSIBILITY TO THEIR CHILDREN’.”

In addition, we propose one further factor, as raised in the consultation dealing with compensation/the economic disadvantage of the parties e.g.

“ANY ECONOMIC OR FINANCIAL DISADVANTAGE SUFFERED AS A RESULT OF THE RELATIONSHIP, INCLUDING THE IMPACT OF CHILDCARE AND CARING RESPONSIBILITIES ON EARNING CAPACITY AND FUTURE CAREER.”

Without this structural integration, we are concerned that the first stage risks becoming a box-ticking exercise in practice, even where the policy intention is sound. Bringing up the child-focused factors before the adult factors would also bring the consideration to child welfare more to the fore.’

RoW makes a sharper equality point: children should not experience different financial outcomes because their parents were married, in a civil partnership, cohabiting, or had opted out of a statutory framework. This is a significant challenge to the government’s desire to preserve the distinct status of marriage. If children’s welfare is genuinely the first principle, it is difficult to justify children being less financially protected because of their parents’ legal status.

Resolution also warns that any needs framework must be careful not to produce outcomes that discriminate against children by creating a marked disparity between the child’s standard of living in each parent’s home. The availability of sports channels, Netflix and Amazon Prime in one household and not the other can be an influencing factor for children in child arrangement decisions, even if it should not be.

This is one of the most important tensions in the consultation. The government wants to protect children and vulnerable people, but also to preserve marriage as legally distinct. Those aims may be compatible in many cases, but not all. Where a child has lived in a financially interdependent cohabiting family for many years, the child’s need for housing, stability and continuity may look very similar to that of a child whose parents were married.

The FLBA agrees that children’s welfare should have hierarchical prominence and supports removing any minimum cohabitation period where there is a child. It highlights the limits and complexity of the present Schedule 1 jurisdiction, including reversionary housing provision, parallel Trusts of Land and Appointment of Trustees Act 1996 (TLATA) litigation and tax complications. It does not go as far as the FSG’s proposal to make child welfare the primary organising principle of the entire statute, or RoW’s proposition that children should never experience weaker outcomes because their parents were unmarried. It nevertheless repeatedly warns against reform that harms children in practice (FLBA, paras 95–108 and 226–229).

I cannot think of many financial remedy cases where, at the conclusion, there was a strong feeling that the judge lacked the range of powers to act in the best interests of the children. There have, however, been many cases involving child arrangements under s 8 Children Act 1989 that have been dependent on outcomes of financial remedy proceedings and, indeed, vice versa. For example, a housing need cannot be defined until child arrangements are settled or a relocation determination made until the finances are sorted.

Child arrangements under CA 1989, s 8 and financial remedy under the MCA 1973 are always separate proceedings with their own timetable, outcomes and often a different judge. There is a compelling case in many instances for these decisions to be made at the same time by the same judge dealing with one set of facts even if in practice welfare decisions are made first in the judge’s thought processes. Fact-findings and the role of Cafcass reports would remain essential and come before final decisions are made.

Resolution’s famous Code of Practice, which aims to reduce conflict in separation cases, requires its members to send separate letters dealing with children and financial issues. The reasoning being that one should not be seen to be bargaining finances at the expense of what is in the children’s welfare. Yet the NCDR community, ever evolving and fast growing, has dealt with both together for many years. This happens in mediation, collaborative practice, early neutral evaluations and in arbitration where the arbitrator is dual qualified. It works very well.

Whilst not suitable in every case by any means, the FPR could provide for a judge to make a decision at a directions hearing, after hearing representations, that section 8 and financial remedy issues are heard together by the same judge and directions timetabled accordingly. Such a move of course gives the court no new factors but could save court resources and well as litigant resources, but the main benefit would be better and quicker outcomes.

Whilst there is common ground that the focus on children in financial cases should be more prominent, it carries a risk that the financially dominant party is reluctant to settle a case with reasonable income and capital going to the weaker party but instead argues that such capital and income should go to the children. I have often been involved in cases where the husband is proposing that ‘his share’ of the family home should be transferred to the children rather than the wife. The focus on the children should not be at the expense of the weaker financial party receiving a fair and secure settlement.

Domestic abuse and economic abuse: a common priority, but with different emphases

Domestic abuse is one of the clearest common themes across the responses. The government itself identifies domestic abuse, including economic abuse, as a key issue in both divorce and cohabitation reform.

Resolution refers to domestic abuse repeatedly in its response. It warns that equal sharing, matrimonialisation and needs cannot be considered in isolation from coercive control or economic abuse. For example, a perpetrator may preserve assets in their own name, spend matrimonial money, or use the litigation process to continue control. Resolution also refers to its October 2024 report,[[5]] which found that around 80% of professionals believed domestic abuse, and specifically economic abuse, was not sufficiently taken into account in financial remedy proceedings.

RoW places domestic abuse at the heart of its response. It argues that family law cannot be understood without understanding domestic abuse, and that legislative reform must be accompanied by specialist training in domestic abuse and trauma-informed practice for judges, practitioners and professionals across the family justice system. It also stresses intersectional barriers faced by Black and minoritised women, migrant women and survivors experiencing forms of abuse such as immigration abuse, ‘honour’-based abuse and dowry-related abuse.

The common ground is strong: domestic abuse must be expressly addressed. The difference is in emphasis. RoW calls for a framework built around safety, trauma-informed practice and substantive protection. Resolution focuses on ensuring that abuse is properly reflected within financial principles and case management. The FSG highlights practical workability and the need to avoid process-driven harm.

Over the past few years, all family law judges have had intensive training on understanding and recognising domestic abuse and its effects. Decisions the judges make now should be better informed. If there is a change in the law about the emphasis of domestic abuse and how it is taken into account, then there will need to be some forceful judgments from the higher courts as to how this change will affect outcomes, particularly as it might be argued that there is not wholesale consensus amongst the higher judiciary at present in relation to (for example) the need (or not) for measurable economic consequences (a point I consider further below). Without these judicial leading judgments, and hopefully greater consensus as to the correct approach, those working in the NCDR arena will not have an easy job improving outcomes where there is domestic abuse.

While much of the consultation is framed around financial principles, domestic abuse is arguably the thread that runs through almost every proposal.

In my own practice, both as a judge and as a mediator, some of the most challenging cases involve coercive and controlling behaviour. Frequently, this does not resemble the stereotype many members of the public associate with domestic abuse. Instead, it takes the form of economic control. One party may have controlled all bank accounts, restricted access to information, accumulated assets in their sole name, withheld funds for household expenditure, built up debts in the other person’s name or insisted upon complete financial dependency throughout the relationship.

By the time separation occurs, the economically weaker partner may not simply have fewer assets. They may have little understanding of the family’s true financial position and very limited confidence in their ability to negotiate on an equal footing.

Domestic abuse through the litigation process itself is also damaging and often not sufficiently taken into account by the courts.

This is why I find one of the strongest themes emerging from both the Resolution and RoW responses to be the recognition that financial remedies cannot be divorced from domestic abuse realities.

Any future statutory framework therefore needs sufficient flexibility to recognise how abuse may have distorted financial outcomes long before a case reaches a courtroom. But where the responses are silent is just how the existence of coercive and controlling behaviour or economic abuse should be factored into the outcomes of these cases. More income or capital to the victim, but how much and how far should we be concerned, if at all, about the net effect upon the perpetrator? Cost penalties are an easy option, but they do not work where the victim is unrepresented and does not have significant costs to pay. Should there be a tariff, like sentencing guidelines, for there to be a 10% shift in the asset allocation for a certain grade of domestic abuse or 20% for the more serious?

The FLBA response offers a particularly useful answer to the difficult question of how established domestic abuse should affect financial outcomes. A substantial body of its members considers the present ‘obvious and gross’ or ‘gasp factor’ threshold too high and supports abuse becoming a standalone factor and a lens through which sharing, needs and the structure of an award are assessed. Possible responses include an enhanced needs award, transfer of a home or vehicle, a different allocation of secure and risky assets, capitalisation, or arrangements designed to end continuing financial control. The FLBA is not unanimous. Some members fear increased allegations, fact-finding, cost and delay, and oppose turning financial proceedings into a punitive jurisdiction. The collective position is therefore more qualified than RoW’s, but it agrees that the present language is imprecise and insists upon proportionality, resources to meet the anticipated increase in court time and judicial discretion. It opposes an automatic financial penalty in every case (FLBA, paras 124–177).

Peel J in Tsvetkov v Khayrova [2023] EWFC 130 said that there is a two-stage test for parties who seek to argue conduct:

  • Stage 1: a party asserting conduct has to prove: (i) the facts relied upon; (ii) if established, that those facts met the conduct threshold, which had consistently been set at a high or exceptional level; and (iii) an identifiable (even if not always easily measurable) negative financial impact generated by the alleged wrongdoing. A causative link between the act/omission and financial loss is required.
  • Stage 2: if stage 1 was established, the court will consider how the misconduct and financial impact should impact the outcome of the proceedings, undertaking the section 25 exercise, which requires balancing all the relevant factors, including section 25(2)(g) conduct.

Since that case there were two decisions by Cusworth J in relation to conduct and domestic abuse where he focused on the wording in the statute, namely conduct that would be ‘inequitable to disregard’. In LP v MP [2025] EWFC 473 the judge explained that whilst the impact of coercive and controlling behaviour may be hard to measure, that does not mean the impact will not be present, considering that there is a real risk of unfairness to victims of such behaviour if it is ignored as a result. Further in Loh v Loh-Gronager [2025] EWFC 483 Cusworth J considered that in the context of personal conduct, the court held that ‘inequitable’ means no more and no less than ‘unfair’ or ‘unjust’.

Interestingly, the FSG chose not to respond to the questions about domestic abuse.

Cohabitation: the broadest agreement and the deepest conflict

The most publicly significant part of the consultation may be cohabitation reform. More than 3.5 million couples live together without being married or in a civil partnership, and the government recognises that current protections are very limited and can leave cohabitants, especially women, children and victim-survivors of abuse, facing serious financial difficulty when relationships end.

There is widespread agreement that reform is needed. Resolution has long campaigned for rights for unmarried couples and says that rights for unmarried couples were at the top of its policy asks in its Vision for Family Justice. RoW welcomes stronger protections for women in cohabiting relationships and argues that the law should reflect lived reality, financial interdependence, caring responsibilities and vulnerability, rather than assumptions about whether a relationship was formalised. The FSG also identifies cohabitation reform as a key area where clarity is needed, because many couples mistakenly believe that they already have legal rights as ‘common law’ spouses.

But cohabitation is also where responses diverge most sharply. The government proposes that protection for cohabitants should be narrower than the protection available on divorce. It suggests eligibility criteria, a starting point that each person keeps what they legally own, and remedies based on more limited needs, with clean break outcomes wherever possible and maintenance only in exceptional, time-limited cases.

RoW does not support treating the preservation of marriage as a reason to restrict protection for cohabitants or limit the court’s ability to achieve fair outcomes. It argues that the framework for qualifying cohabitants should broadly align with the principles that apply on divorce, while retaining flexibility for different circumstances.

The FSG goes further than the government’s proposals in one significant respect. It argues that where parents have children together, financial protection should potentially extend even where they have never cohabited. The Group considers that the presence of children fundamentally changes the policy considerations and that a child’s financial security should not depend upon whether the parents shared a household. This places the FSG somewhat closer to RoW’s emphasis on the realities of family life than to the government’s more formal distinction between cohabiting and non-cohabiting relationships.

Some FRJ commentary is more critical in the opposite direction. One article argues that the proposed cohabitation regime ‘casts the net far too wide’ and risks imposing an unfair regime on millions of couples. Another critiques the proposed framework from a different angle, arguing that although statutory reform is compelling, the government’s model may still permit or cause injustice by making cohabitants’ remedies less generous and harder to access than divorce remedies.

Some critics think the proposals go too far because they may impose financial obligations on people who deliberately chose not to marry. Others think they do not go far enough because they preserve a hierarchy that leaves vulnerable cohabitants and their children insufficiently protected.

On death, the FLBA supports, on balance, spouse-equivalent intestacy rights and equal priority to apply for a grant of administration for qualifying cohabitants. It nevertheless identifies difficult questions concerning blended families, sideways disinheritance, the burden on children to bring 1975 Act claims, disputed relationship status and the inconsistency between narrower rights on separation and marriage-equivalent rights on death. It proposes a 5-year qualification period where there is no shared child and 2 years where there is a child. It also identifies a potential ‘death gap’ for a former cohabitant who dies during the limitation period for a separation claim and proposes a cohabitation cross-check so that provision on death can be tested against what might have been ordered on separation (FLBA, paras 261–302).

The FLBA supports a new framework for couples living together in an ‘enduring family relationship’, a 3-year qualification period for couples without children, no minimum period where there is a child, and a 2-year limitation period extendable in exceptional circumstances. It broadly supports a needs-based model and a wide remedial jurisdiction. One of the issues that such reform will need to deal with is the definition and evidential aspects of determining the commencement of cohabitation and the extent to which it is seamless. However, it opposes excluding discretionary needs, because the basic/discretionary distinction will be difficult, expensive and potentially unfair, particularly after a long relationship, where the family enjoyed a high standard of living, or where refusal to marry formed part of an abusive dynamic. It also rejects a statutory ceiling requiring a hypothetical divorce comparison, because that would compel a parallel ‘What if they had married?’ exercise. These positions place the FLBA closer to RoW than to commentators who fear that reform already goes too far, while still accepting that the government may preserve a principled distinction between marriage and cohabitation (FLBA, paras 213–257).

Qualifying nuptial agreements and opt-outs: autonomy, but only with safeguards

The government also proposes qualifying nuptial agreements, allowing couples to make binding financial arrangements in advance, subject to safeguards.

There is likely to be significant support for greater certainty and autonomy. Many couples want to make their own arrangements and avoid future litigation. But the responses suggest that agreements must be treated with caution where there is inequality of bargaining power, lack of disclosure, lack of advice and/or domestic abuse or pressure.

RoW’s general approach is especially relevant here: any framework must prevent perpetrators from exploiting legal mechanisms to continue coercive control or obtain financial advantage. The FSG’s emphasis on accessible support and early informed decision-making also matters, because agreements are only meaningful if people understand what they are signing and have access to advice.

The same issue arises with cohabitation opt-outs. Allowing couples to opt out of a statutory cohabitation scheme may respect autonomy. But if one partner is financially dependent, pregnant, caring for children, subject to abuse, or simply unaware of the consequences, opt-out agreements could become a route to injustice. The key question is not whether agreements should exist, but what safeguards make them legitimate.

The FLBA broadly supports qualifying nuptial agreements and cohabitation opt-outs, provided there is contractual validity, execution as a deed, full material disclosure and independent legal advice for both parties. Disclosure and advice should not be waivable. Importantly, it warns that formal legal advice does not conclusively disprove coercion: a person may appear informed while acting under sustained psychological, emotional or economic pressure. The court must retain an effective power to investigate duress, undue influence, coercive control and economic abuse. This is consistent with RoW’s emphasis on safety, Resolution’s support for autonomy with safeguards, and the FSG’s focus on informed decision-making (FLBA, paras 188–208 and 258–260).

Access to justice: the reform that sits behind every other reform

Perhaps the most important shared theme is that legal reform will fail unless people can access advice and support. Resolution highlights the impact of legal aid cuts, the outdated means test and low legal aid fees, and says funding for initial legal advice and signposting is one of its main policy asks.

RoW is equally clear. It argues that new rights and statutory principles will not improve outcomes if people cannot understand, assert or enforce them. Early legal advice is particularly important for survivors of domestic abuse, who may be negotiating from a position of fear, trauma, financial dependence or coercive control.

This is where law reform and family justice reform meet. A beautifully drafted statute is of limited use if people cannot get advice, cannot afford representation, cannot safely negotiate, or cannot access a court when they need one. Public legal education, early legal advice, triage, mediation, safeguarding and specialist domestic abuse support are not add-ons. They are the infrastructure that makes rights real.

The FLBA goes further than the other responses in proposing institutional reform. It recommends that the Financial Remedies Court become the specialist forum for all financial disputes arising from family relationships, including divorce finance, new cohabitation claims, TLATA disputes, Schedule 1 claims and relevant 1975 Act claims. Its ‘one family, one court’ proposal would require jurisdictional amendments, transfer powers, consolidation and joint case management. The intended benefits are lower cost, less duplication, judicial continuity and fewer inconsistent findings. This complements the FSG’s whole-family approach and would provide a more coherent legal backdrop for mediation, hybrid mediation and other non-court processes (FLBA, paras 12–25).

Why hybrid mediation and other forms of non-court dispute resolution matter to this debate

One area that receives less attention in the consultation than it deserves is process. The public discussion often focuses on what the law should be. Equally important is how families reach outcomes. Much of my work now involves mediation, often hybrid or shuttle mediation. This allows parties to remain within a mediation framework while their lawyers and, where appropriate, other professionals participate constructively in the process. Hybrid mediation can mean that the parties are not in the same room or on the same screen via Zoom.

In cases involving allegations of coercive control, economic abuse or significant power imbalance, traditional mediation may not always be appropriate. Equally, immediate resort to adversarial court proceedings may significantly increase conflict and cost.

Hybrid mediation can sometimes offer a middle path. The ability to use separate rooms, different arrival and departure arrangements, legal support throughout the process and carefully managed information-sharing enables some couples to engage in discussions that might otherwise be impossible.

That is why I would have welcomed stronger recognition within the consultation of the role that mediation, hybrid mediation, lawyer-supported dispute resolution and arbitration can play alongside substantive legal reform.

Better legal rules are important. Better ways of helping people resolve disputes are equally important.

Gathering outcomes and future case law for guidance

As NCDR increases, and it appears on an upward curve, there is a risk that we lose data about the type of cases that are being resolved and what the outcomes are. Also, there are fewer reported cases with more and more people heading for the privacy that mediation, collaborative, Private FDRs and arbitration offer. Whilst the FRJ has a number of contributors who sit as judges, mainly fee-paid, and who publish judgments, we lack authoritative decisions that give guidance to practitioners and, indeed, the public too in an increasingly AI world. Bearing in mind the vast majority of financial cases involving separating couples are low or modest value cases and therefore ‘needs’-based, there are a lack of Court of Appeal and even High Court cases that deal with such circumstances. It would be invaluable to have our most senior judges giving judgments in such cases.

Where the responses conflict

The main conflicts can be summarised as follows.

First, there is disagreement about how far codification should go. Resolution and RoW support clarity, but both resist rigidity and argue that fairness must remain central.

Second, there is disagreement about equal sharing. Resolution accepts equal sharing as a starting point but wants the objective framed as fairness in relation to matrimonial property. RoW is more directly opposed to a formulation that treats equal division as equal benefit.

Third, there is disagreement about the hierarchy of needs. The government seeks structure, but Resolution and FRJ commentators warn that a hierarchy may encourage arguments about ‘basic’ needs and produce unfairness or additional litigation.

Fourth, cohabitation reform divides opinion most sharply. RoW argues against limiting protection simply to preserve the distinct status of marriage, while some FRJ commentary warns that the proposed cohabitation regime may already go too far and impose obligations on people who chose not to marry.

Fifth, there is a tension between autonomy and protection. Qualifying nuptial agreements and cohabitation opt-outs may give people certainty, but without strong safeguards they may disadvantage the very people reform is intended to protect.

Sixth, the FLBA exposes a genuine division over domestic abuse. Many members favour a lower threshold and a standalone statutory factor; others fear tactical allegations, additional fact-finding and a punitive jurisdiction. The area of agreement is that established abuse must be considered more coherently, with the court retaining discretion over the financial response.

Seventh, the FLBA proposes structural reform that is less prominent in the other responses: a specialist ‘one family, one court’ jurisdiction for connected family financial disputes, supported by transfer, consolidation, disclosure and case-management powers.

Other observations that could be added to the proposals

Several further points deserve attention.

  • First, public education must be central. Cohabitation reform will not work unless people understand both the current law and any new law. The myth of the ‘common law spouse’ remains powerful. The FSG rightly emphasises that reforms should reduce confusion rather than create new uncertainty.
  • Second, the law should be tested against ordinary cases, not just exceptional ones. Many families have modest assets, limited pensions and high housing costs. A reform that works well for high-net-worth cases may fail families where the main issue is how to house two households from the net equity in one family home. Far too many of the influential reported cases deal with high net worth families. There is a lack of judicial authoritative cases for the type of incomes and assets bases there are in the vast majority of cases. Those are the most difficult to resolve or decide upon because there is often too little to go round.
  • Third, pensions need particular attention. Resolution’s response highlights the importance of retirement income and warns against treating pension needs too narrowly. In many relationships, particularly where one person has undertaken more unpaid caring work, pensions are one of the clearest places where long-term inequality appears. Pensions do not form part of the cohabitation law reforms either.
  • Fourth, domestic abuse must be addressed procedurally as well as substantively. It is not enough to say that abuse is a factor. The system must prevent abusive litigation tactics, ensure safe negotiation, provide specialist support, and make sure judges and professionals are trained to recognise economic abuse and coercive control. RoW is particularly strong on this point.
  • Fifth, children’s welfare should not be diluted by adult status distinctions. If the law puts children first, it must confront the question of whether children of cohabiting parents should receive weaker protection than children of married parents. RoW expressly argues that children should not experience different financial outcomes because of their parents’ marital status.
  • Sixth, there is disagreement about the role of children within the statutory framework itself. The FSG argues that child welfare should not merely be the first consideration but the primary consideration throughout the legislation, with child-focused factors moved to the forefront of the statutory checklist. While Resolution and RoW strongly support child-focused reform, neither places as much emphasis on restructuring the legal framework around the child’s welfare as the FSG does.
  • Seventh, reform should become more overtly child-centred. One of the most thought-provoking aspects of the FSG response is its argument that financial remedy law has often paid lip service to the welfare principle without fully embedding it in decision-making. The proposal that child welfare should become the primary consideration, supported by an expanded definition encompassing emotional and psychological well-being as well as financial provision, deserves careful consideration. Whether or not all practitioners agree with the detail, it is difficult to disagree that children are often affected as much by parental conflict and instability as by the level of financial provision itself.
  • Eighth, where will we get our case law from?

Conclusion: fairness needs both rules and judgment

The government’s consultation is a major opportunity. Few would argue that the current law is clear enough, accessible enough, or sufficiently responsive to modern family life. Cohabitants need better protection. Survivors of abuse need a system that recognises coercive control and economic harm. Children need stability. Divorcing couples need clearer principles. The public needs a law it can understand.

But the responses also show that reform must be handled with care. Certainty is valuable, but not if it produces injustice. Autonomy is important, but not if agreements are signed under pressure or without understanding. Marriage and civil partnership may remain legally distinct, but that distinction should not leave children or vulnerable partners exposed to hardship.

The strongest theme running through the responses is that fairness cannot be reduced to a formula. The law needs clearer principles, but it also needs humanity, discretion and practical support. A fairer end to relationships will not come from legislation alone. It will require early advice, public education, non-court options, trauma-informed practice, proper legal aid and a family justice system that sees the whole family, not just the legal status of the adults. We should stop organising litigation according to historical legal categories and start organising it around the family itself.

That is the real challenge for reform. Not simply to decide who gets what when a relationship ends, but to build a system that helps families separate with dignity, safety and fairness.

[[1]]: See www.gov.uk/government/consultations/a-fairer-end-to-relationships

[[2]]: See https://caselaw.nationalarchives.gov.uk/uksc/2025/26

[[3]]: See https://financialremediesjournal.com/standish-one-year-on-is-there-agreement-as-to-what-it-means/

[[4]]: See https://financialremediesjournal.com/summary-of-governments-consultation-on-fairer-end-to-relationships/

[[5]]: See https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf

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