Cohabitation reform Cohabitation reform welcomed – but the detail will be crucial
Proposals to strengthen the rights of cohabiting couples have received
broad support, although professional responses have also highlighted
important questions about how a new framework would work in practice.
Reflecting modern family life
Proposals to strengthen the rights of cohabiting couples in England and
Wales have received broad support from legal and professional
organisations following the close of the Government’s consultation.
However, responses have also highlighted several areas where careful
consideration will be required to ensure that any new framework is fair,
practical and clearly understood by the public.
Cohabiting couples are now a significant and growing part of family life,
yet the legal protections available to them remain substantially
different from those provided by marriage or civil partnership.
Despite the widespread use of the term “common-law marriage”, living
together does not currently give a couple the same legal rights as being
married. This can leave individuals financially vulnerable when a
relationship ends or when one partner dies.
The Government’s consultation considered a new legal framework covering
financial provision following separation and improved inheritance rights
for qualifying cohabitants where a partner dies without a valid will.
Respondents have broadly welcomed the recognition that the law needs to
reflect the way in which families live today.
Important questions remain
While there appears to be considerable support for reform in principle,
professional bodies have raised questions about how the proposed
protections would operate in practice.
1
How should a qualifying cohabiting relationship be defined?
2
Should eligibility depend upon a minimum period of cohabitation?
3
How should couples be able to opt out of the proposed framework?
4
What financial remedies should be available following separation?
5
How should the rights of children, previous partners and other
beneficiaries be protected?
6
How would new inheritance rights interact with the intestacy rules
and the Inheritance (Provision for Family and Dependants) Act 1975?
The importance of professional advice
For professional willwriters and estate planners, any change to the
rights of cohabiting couples would have important implications for client
conversations and estate-planning recommendations.
Practitioners may need to consider a client’s relationship status, the
length and nature of their cohabitation, jointly owned property, pension
arrangements, children from current or previous relationships and any
decision to opt out of a future statutory scheme.
The proposed reforms could also make regular will reviews even more
important. Changes in a relationship or household circumstances may
affect how a client wishes their estate to be distributed.
A will remains essential
Under the current intestacy rules, an unmarried partner does not
automatically inherit simply because the couple has lived together for a
long time or shares children or a home.
A surviving partner may be able to make a claim against the estate in
certain circumstances, but this can involve additional cost, delay and
uncertainty at an already difficult time.
Making a professionally drafted will remains the clearest way for an
individual to record their wishes and provide for the people who matter
to them.
Reform must provide clarity
The consultation represents an important opportunity to modernise an
area of law that many believe no longer adequately reflects contemporary
family life.
However, the effectiveness of any reform will depend on the detail. The
eventual framework must be accessible, proportionate and supported by a
substantial public-awareness campaign.
Whatever shape the legislation ultimately takes, professionally prepared
and regularly reviewed wills will continue to play a central role in
providing clarity, protecting families and reducing the potential for
disputes.
Read the full report