Burning Down the House (That We Once Shared for 3 Years) to Roast the Pig: The Problem with the Cohabitation Reform Proposals

Part 2^[1] of the Ministry of Justice’s consultation paper, A Fairer End to Relationships (‘the CP’), proposes a financial remedies scheme for cohabitants on separation.^[2] It casts the net far too wide. If legislation goes through as proposed, an unfair regime will be foisted on millions of couples. Childless cohabitants, specifically, should not automatically become a financial unit in the eyes of the law just because they have lived together for 3 years. The CP does not acknowledge this but instead says that in an effort to protect women, children, and victim-survivors of domestic abuse, they will throw the baby out with the bathwater and introduce reform for a whole host of extra people too.

Reform is needed, but not to the extent that the CP sets out. There are three specific groups of people for whom some sort of change is needed (not necessarily legislative):

1. Unmarried^[3] parents: legislative reform is required and should go further than the CP’s proposals.
2. Survivors of domestic abuse (both cohabitants and those who are married/in civil partnerships): more immediate remedies (such as crisis funding) are needed. Legislation is not going to be of any practical assistance since (a) any remedies from litigation will come too late to help survivors flee from abusive relationships, and (b) domestic abuse, due to its private nature, is notoriously difficult (and distressing for the victim-survivor) to prove in court.
3. Those who believe in the common law marriage myth: education, not legislative reform, is the solution.

For childless cohabitants: an opt-in system, not an opt-out

There is a meaningful difference between two couples who, superficially, look alike: a childless couple who have simply not yet decided whether to marry, and a childless couple who have decided, through marriage/civil partnership, to become a single financial unit. The second group have signed up to the possibility of financial consequences outside their control if they separate. The first group have not. Legislation that cannot distinguish between these two positions and instead treats three years of cohabitation as sufficient in itself, treats a couple who have gone out of their way to preserve financial independence the same as if they had chosen interdependence.

On conservative assumptions drawn from published ONS statistics, the three-year threshold is likely to bring at least 1.5 million childless cohabiting couples in England and Wales within the scope of the proposal.^[4] As a useful comparator, there are roughly 11.5 million couples in marriages/civil partnerships in England and Wales.

Two people who move in together as romantic partners at the start of a university course would, on a strict reading of the eligibility criteria, qualify for statutory financial remedies against each other shortly after graduation! Or consider couples in their twenties: at this age, relationships are likely to be exploratory, to involve shared housing for reasons of cost and convenience rather than settled financial partnership, and least likely to have accumulated the kind of entangled finances that justify a statutory claim. Then take people later in life, perhaps who are divorced or widowed, and do not want to become a financial unit with a new partner. All of these people, if they want to live together for more than 36 months, will need to pay for legal advice to opt out of the cohabitation regime. This cannot be fair.

The better answer is an opt-in method, akin to the qualifying nuptial agreement regime proposed elsewhere in the CP. Cohabitants could opt in to use properly useable cohabitation agreements that could be enforced in the family court (where concepts like ‘fairness’ and ‘needs’ will be entertained). Currently, cohabitation agreements are fixed contracts, governed in the civil courts by contract law – and rarely used for this reason. Providing an opt-in to the jurisdiction of the family court would put cohabitants who want financial protection on the same footing as those who marry. They may make a deliberate, informed choice to bring themselves within the family court’s discretion, just like married couples can.

This opt-in system does have a weakness: using it depends on the couple knowing it exists and being willing and able to pay for the advice needed to use it properly. These couples are likely to be already relatively protected in practice (they have the education and means to take advice and can afford a civil cohabitation agreement or a declaration of trust). The person the CP is rightly worried about is the unadvised, economically dependent partner who will never get near a solicitor’s office until the relationship has already ended.

But the automatic scheme proposed in the CP creates a different and equally serious vulnerability of its own, which an opt-in model avoids. Consider the vulnerable person who is deliberately targeted by a partner with no genuine long-term commitment, but with a clear eye on their estate. Marriage is a public, formal act: it requires the parties to attend a register office, it can be witnessed and questioned by family, and the concept of a ‘predatory marriage’ is one the law and safeguarding practice already recognise and scrutinise. Simply moving in with someone, and remaining there for three years, requires none of that visibility, and triggers none of those safeguards.

Anticipated objection: ‘it is only discretionary’

The likely response to the objections above is that the proposed legislation will be discretionary: those with children or in longer relationships will be entitled to more, and many childless cohabitants will be entitled to nothing, just as many short marriages produce no substantive award beyond a clean break. But if that is right, it raises the obvious question of why the door to litigation/mediation/solicitor correspondence should be opened at all for a population that will rarely obtain any remedy. The cost of that door being open is not confined to the small minority of respondents to successful applications. It is borne by every separating couple who must now take advice, however briefly, on whether a claim exists; by every relationship that ends with one party threatening proceedings that would very likely fail, but which the other cannot be certain will fail; and by the family justice system, which must process claims brought by parties with little realistic prospect of success alongside those with a genuine case. As any practitioner reading this journal will attest to, people are less conciliatory at the end of a relationship than during it. A new, low-probability cause of action is more likely to be used as leverage or a means of inflicting cost on a departing partner than as a genuine route to a fair outcome for the overwhelming majority who will not succeed in obtaining one.^[5]

Unmarried parents

One real problem we currently have is the financial position of separated unmarried parents. Schedule 1 to the Children Act 1989 benefits the children of unmarried parents through property settlements, lump sums, and periodical payments. Child maintenance is separately available through the famously useless Child Maintenance Service. Neither route makes provision for a parent’s own transition to financial independence: adjusting working hours during a child’s infancy, retraining, or meeting the childcare costs that would allow the parent to return to work at all. This can and should be resolved in this reform.

Co-parents should have an obligation to support one another, and not merely for their child’s benefit. A parent who undertakes the greater share of caregiving labour confers an ongoing benefit on the other that the law should require to be shared.^[6] Children should not suffer a disadvantage because their parents are unmarried. When a household is poorer, the children are worse off.^[7]

The proposals set out in the CP should be approved as far as this group of people are concerned, and in fact, they should go further. The current proposal in the CP is that ‘maintenance should only be awarded in cases in exceptional circumstances, such as serious health issues or disability’. Maintenance payments should also be an available remedy for parents; for many parents who need financial support the most, there won’t be the capital to pay a lump sum to support them adequately.

‘Parents’ should be interpreted widely. This remedy should be open to:

a. legal parents of a child born before, during or following cohabitation;
b. couples who have treated a child living in their joint household as a child of the family;
c. cohabitants who have suffered financial detriment from unsuccessful fertility treatment;
d. cohabitants who have suffered financial detriment relating to now-adult children; and
e. cases where one cohabitant is pregnant at separation.

Domestic abuse

Notably, domestic abuse is one area where the CP does not make specific proposals above the general cohabitation reform proposals, but merely ‘seeks views on how domestic abuse could be considered by the courts in both financial remedy and cohabitation cases’.^[8]

Victim-survivors of domestic abuse certainly do need more support and protection. Women’s Aid found that 73% of victim-survivors say the cost of living had either prevented them from leaving or made it harder for them to leave.^[9] However, the only financial assistance that will help is accessible, upfront support. A prospective legal claim, resolved (if at all) many months after proceedings are issued, will not do: by the time any award is made, the money will have arrived too late to have made the difference between leaving and staying.

The CP, in support of the cohabitation reform proposals, relies on Women’s Aid’s finding that it can cost almost £50,000 to leave an abusive relationship and rebuild an independent life.^[10] That number requires closer scrutiny. It is a twelve-month figure, not a one-off upfront cost. It is modelled on a victim-survivor with one child (and therefore already included in the unmarried parents proposal above) fleeing into a two-bedroom property, and includes an estimated £25,590 in legal fees for divorce and child arrangements proceedings (costs that, by definition, cannot be attributed to an unmarried, childless cohabitant). The genuinely immediate cost of fleeing (replacing identification documents and essential possessions, emergency travel, obtaining urgent technology) is estimated by Women’s Aid at £970, and a Flee Fund of £500 (provided by the Home Office and administered by Women’s Aid) already exists to help meet this cost. A separate Future Fund, also administered by Women’s Aid, provides a payment of up to £2,500 to meet costs such as rental deposits, household furnishings, debt, security upgrades, academic courses and other expenses that help victim-survivors rebuild their lives after abuse.^[11] Applications for these payments are processed within 5 working days and paid out within 2 days; that is the timeline in which victim-survivors need financial assistance. Funding is needed to make these funds more widely available, but that is not something cohabitation reform is going to fix.

Tellingly, Women’s Aid’s own list of recommended solutions does not include new cohabitation legislation. Their recommendations include funding for domestic abuse services, guaranteed funds to flee, reforming the CMS, ensuring sufficient benefit levels, building more social housing, and concessionary travel for victim-survivors who have recently fled.^[12]

There are other reasons cohabitation reform is not the right way to help victim survivors. It is notoriously difficult to prove domestic abuse in court, because by its nature there tends to be little evidence. It takes a huge emotional toll on victim-survivors to give evidence in court, or to be on the same video link, in the same building or in the same courtroom as their abuser. Then there is the separate question of how the court system will be able to handle the necessarily lengthy fact-finding hearings where abuse is to be determined. The proper remedies for this group are those that Women’s Aid calls for, not cohabitation reform.

The myth of ‘common law marriage’

The CP refers to a 2019 British Social Attitudes Survey which found that 47% of people believe common law marriage ‘definitely’ or ‘probably’ exists – down from 56% in 2000.^[13] In the 7 years since the 2019 survey, it is plausible (and likely) that the myth is less widespread. The myth was not evenly distributed in 2019: only 28% of 18–24 year olds held the mistaken belief, against 52% of those aged 25 to 64.^[14] This suggests that a generation who have grown up with search engines (and now AI) are less susceptible to the basic misunderstanding. A simple google search or question to Claude gives a very clear answer: common law marriage does not exist in England and Wales.

Turning a myth into a legal reality is not a sound response to misinformation. Especially in circumstances where, even based on 2019 figures, over half of people think common law marriage does not exist! There is a real risk, as outlined above, that introducing automatic financial rights for people merely by dint of them living together, that it will affect many thousands or millions of people unknowingly, introducing a new lacuna in public understanding of the law. To force people to sleepwalk into a pseudo-marriage is not the solution to this.

What should be introduced, inter alia, is the following:

1. Basic legal literacy about cohabitants' rights as part of the PSHE curriculum; and
2. A short, standardised information notice (setting out, in plain terms, that moving in together confers no automatic financial rights) should be included as part of:
   a. signing an assured shorthold tenancy;
   b. completing a joint conveyancing transaction;
   c. registering a child's birth;
   d. DWP forms for cohabiting claimants;
   e. workplace pension and death-in-service nomination forms.

Conclusion: an alternative legislative proposal

The alternative legislation should be as follows:

1. For unmarried parents: either extend Schedule 1 or introduce parallel cohabitation legislation to cover parents (widely interpreted, as above). There should be express provision for the party who has suffered a financial detriment in their own transition to financial independence, including childcare costs enabling a return to work.
2. For cohabitants without children: an opt-in mechanism in the form of cohabitation agreements given the same standing as nuptial agreements, assessed for fairness, available to any couple who make the deliberate choice to acquire the financial rights and obligations that marriage already offers.

Reform is certainly needed, but the one proposed in the CP is a scheme that sets fire to the house in order to roast the pig. The consultation period ends on 14 August 2026. Share your views here: https://consult.justice.gov.uk/digital-communications/a-fairer-end-to-relationships-consultation/.