For many years, the concept of a “common law marriage” has been one of the most enduring myths in family law. There is a widespread misconception that couples who have lived together for a significant period, or who have children together, acquire legal rights comparable to those of a married couple if their relationship breaks down. In reality, no such legal status has ever existed. Unmarried couples do not benefit from the same legal protections as married couples or civil partners, regardless of the length of their relationship. Marriage and civil partnership therefore remain the only ways to secure the comprehensive legal rights and remedies available on separation.
The Current Position for Cohabiting Couples
Currently, cohabiting couples have very limited available remedies in the event of a separation. Claims are generally restricted to property disputes, more specifically under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA 1996”) and child related claims via the Child Maintenance Service or under Schedule 1 of the Children Act 1989. This in stark contrast to the various claims that married couples or those in a Civil Partnership can pursue in the event of a relationship breakdown.
There have, for many years, been discussions and proposals around possible reform to the law surrounding cohabitants and their rights when going through a relationship breakdown. A consultation named “A fairer end to relationships” was launched by the Government at the start of June this year, its stated aims being to address the changing modern family structures, changes to religious beliefs as well as how the current system can leave vulnerable individuals without adequate financial protection, particularly in cases involving economic or domestic abuse.
Proposed Reforms for Cohabiting Couples
A number of possible reforms have been suggested in order to safeguard vulnerable parties as well as modernise the surrounding law. The proposals in relation to cohabiting couples are to introduce a statutory framework of rights and protections upon separation. In order to be eligible to for these protections to apply, the couple are required to have been cohabiting for a minimum of 3 years or who live together and share a child; and
The consultation also addresses reforming the intestacy rules to allow cohabitants to access financial provisions from a deceased partner’s estate in the event that they have passed away without having made a Will.
The consultation also sets out the main points of the suggested model for separating cohabitants:
- The children’s needs must come before those of the parents;
- Each party will retain what they legally own and this will only be departed from if this is required to meet a party’s needs;
- The parameters of ‘needs’ will be more narrowly assessed than that of a married party; and
- A separating cohabiting couple will not be entitled to a more favourable financial outcome in comparison to divorcing couple in a similar set of circumstances.
It has also been proposed that cohabiting couple shall have the option to “opt-out” of these provisions, although it has not been made clear how this will operate in practice.
The proposals aim to provide greater protection for cohabitants, while also seeking to preserve the distinct legal status of marriage and civil partnership.
What Happens Next?
The consultation is due to close on 14th August 2026 and the responses will be utilised to inform possible changes to legislation in the future. When such legislation will be introduced, and what form it will take, remains to be seen.
Until there are any changes to the current law, couples who are in a cohabiting relationship or considering moving in together can still enter into a Cohabitation Agreement. This is an instrument for recording parties’ respective rights and responsibilities, as well as any agreed arrangements in the event of a separation. For more information, please refer to Caroline Elliott’s earlier blog, 'Moving in Together - Do You Need a Cohabitation Agreement?'
At Roythornes, we can assist in negotiating and preparing cohabitation agreements tailored to your circumstances, in turn adding certainty to your financial situation as well as protecting certain assets and mitigating the risk of costly litigation in the future.
If you are currently in a similar position or perhaps are interested in a cohabitation agreement and you feel that you would like to access tailored advice, please feel free to get in touch and we would be happy to assist you in exploring your options.