Cohabitation reform: Balancing protection, choice and legal certainty

Posted: Friday, 14 August 2026 @ 13:08

Proposals to reform the legal rights of cohabiting couples have prompted a wide-ranging debate across the legal profession, highlighting fundamental questions about protection, personal autonomy and how any new framework would operate in practice.

The Ministry of Justice consultation, A Fairer End to Relationships, considered reforms affecting cohabiting couples following separation and when one partner dies without leaving a valid will. The proposals included a financial remedies framework for qualifying couples and possible changes to inheritance rights under the intestacy rules.

As the consultation drew to a close, responses reported by Today’s Wills and Probate revealed considerable disagreement over both the principle of reform and its possible design.

Protection or an unwanted legal status?

One of the principal concerns is whether legal rights should arise automatically after a couple has lived together for a specified period or had a child together.

Baroness Ruth Deech warned that an automatic framework could impose significant rights and obligations upon couples who had never actively chosen to enter a legally recognised relationship. She argued that marriage and civil partnership require a positive decision, whereas the proposed system could affect people who were unaware that their relationship had acquired legal consequences.

Polling cited in her consultation response indicated limited public awareness of the proposals and an even division between support for an automatic framework and an opt-in alternative. Baroness Deech consequently favoured a statutory system through which couples could actively choose to acquire additional rights and responsibilities.

Supporters of reform take a different view. They argue that an opt-in system may fail to protect precisely those people who are most vulnerable, including individuals who have made financial or career sacrifices during a relationship.

Jo Edwards, chair of Resolution’s Family Law Reform Committee, said reform formed part of the government’s election commitments and maintained that the proposals would provide a limited safety net rather than reproduce all the rights associated with marriage.

She also warned that allowing one partner to opt out unilaterally could place a financially weaker person under pressure to surrender their protection.

The enduring “common law marriage” myth

Despite widespread use of the term, there is no legal status of “common law marriage” in England and Wales. Simply living together does not currently provide couples with the same rights as spouses or civil partners.

This persistent misunderstanding is being used both to support and challenge reform.

Those in favour argue that the law should respond to the reasonable expectations of the millions of couples who live together without formalising their relationships. Opponents suggest that creating another legal category could make an already misunderstood area more complicated and that improved public education would be a more proportionate response.

Whatever approach is ultimately adopted, the debate demonstrates the importance of ensuring that couples understand their present position and the steps available to protect themselves.

Inheritance and intestacy

The potential effect of reform on estates is of particular interest to will writers and estate planning professionals.

The Chartered Institute of Legal Executives reported that its specialist probate lawyer members supported greater protection for cohabitants but did not favour granting qualifying partners the same intestacy rights as spouses and civil partners.

Concerns include the difficulty of defining a qualifying relationship, particularly where couples live together only part of the time, and the possibility that a deceased person may have intended assets to pass to children from a previous relationship or to other relatives.

Questions have also been raised about how eligibility would be established after death, what evidence would be required and whether cohabitation should affect an existing will. Unlike marriage and civil partnership, the proposals would not give cohabiting couples an equivalent inheritance tax exemption.

These issues illustrate why a will remains essential for cohabiting clients. Until any legislation is enacted, an unmarried partner does not automatically inherit under the intestacy rules, regardless of how long the couple has lived together.

Practical concerns about the proposed framework

Responses from across the sector identified several matters requiring further clarification:

How a qualifying cohabitant would be legally defined;
Whether the proposed qualifying period is an appropriate measure of commitment;
How existing declarations of trust and cohabitation agreements would be treated;
Whether couples could opt out and, if so, whether both partners would need to agree;
How pension assets and pension-sharing orders would be addressed;
Whether the reforms could increase disputes and place additional pressure on the courts; and
What public education, legal aid and professional training would be needed.

The Law Society broadly welcomed greater clarity and protection but emphasised the need for suitable legal aid provision, particularly where children or domestic abuse are involved.

The Society of Pension Professionals also supported extending appropriate pension protection to qualifying cohabitants. However, it called for objective eligibility criteria and sufficient time for the pensions industry to prepare for any changes.

What does this mean for practitioners and their clients?

No final decision has yet been made about the shape of any new cohabitation legislation. The contrasting consultation responses demonstrate that there is support for addressing unfair outcomes, but much less agreement about how protection should be balanced against individual choice.

For will writers and estate planning professionals, the immediate message remains unchanged: cohabiting clients should not assume that living together gives them the same rights as marriage or civil partnership.

Practitioners should continue to encourage clients to make and regularly review their wills, consider the ownership of jointly held property and obtain appropriate specialist advice about declarations of trust, cohabitation agreements, pensions and inheritance tax.

Any eventual reform will also require careful consideration of existing wills and estate plans. The IPW will continue to monitor developments and their implications for members and the clients they advise.