The government has proposed a new statutory regime for separating cohabitants, including a three-year qualifying period for couples without children and no minimum period where children are involved. Is three years a meaningful measure of commitment, or is the threshold set too low? And what are the practical consequences for couples?
The government’s recently announced consultation says its proposals are intended to apply to relationships characterised by commitment, stability and interdependence. Yet three years of cohabitation is an imperfect proxy for those qualities.
Indeed, the consultation itself notes that the Law Commission previously recommended a five-year period for certain inheritance claims by surviving cohabitants where no child is involved. If five years was considered an appropriate indicator of a settled and committed relationship for succession purposes, it is difficult to see why only three years should justify the imposition of potentially extensive financial obligations during lifetime.
Renting, saving and the reality of modern relationships
For many couples, cohabitation does not begin with a shared intention to merge finances, acquire property, or establish long-term financial interdependence; it begins with renting.
In the current economic climate, saving for a property deposit can take several years. High house prices and rental costs mean that the decision to live together is often driven as much by financial practicality as by relationship progression. Sharing accommodation enables couples to reduce living costs and save more effectively, but that is not the same as committing to a shared financial future.
For many, cohabitation is a means of testing compatibility before any lasting commitments are made.
Against this backdrop, it is difficult to regard a three-year qualifying period as a reliable marker of an “enduring family relationship”.
Autonomy and the distinct status of marriage
The consultation emphasises that any reform must preserve the distinct legal status of marriage and civil partnership. At the heart of that distinction is the fact that marriage is a status entered into by deliberate act: it requires the mutual consent of both parties, expressed through formal legal steps and public recognition.
The proposed cohabitation scheme operates on a fundamentally different basis. Rather than conferring rights through an affirmative act of choice, it would impose legal consequences automatically once certain factual criteria are met. In that sense, the regime is not opt-in like marriage but opt-out: the legal default changes with the passage of time and the nature of the relationship, rather than with any express decision by the parties.
The distinction becomes particularly significant where couples have consciously chosen not to marry. In such cases, the absence of formalisation is often itself meaningful, reflecting a deliberate decision to avoid the legal and financial consequences associated with marriage or civil partnership.
Statutory financial consequences
It is also common for cohabiting couples to make express arrangements during the relationship to regulate their financial affairs in the event of separation, whether through declarations of trust, cohabitation agreements or other informal understandings. A scheme that imposes statutory financial consequences after a relatively short period therefore risks cutting across arrangements that were deliberately made to reflect the parties’ own assessment of fairness and risk.
Care is needed before imposing legal obligations by default on those who have not chosen to assume them. The shorter the qualifying period, the more inappropriate it is for the law to override both the absence of consent and any express attempts by the parties to define their own financial arrangements.
A longer qualifying period would better respect personal autonomy while still allowing protection to be afforded in genuinely long-term and interdependent relationships.
The child exception and its implications for the threshold
The government’s green paper proposes that the three-year requirement should not be applied where there is a child of the family. That significantly weakens the case for a short duration threshold.
The principal situations in which vulnerability arises most acutely are those involving childcare responsibilities, economic dependency linked to parenting or housing needs of children.
These situations would already be captured by the proposed child-based route into the scheme. For couples without children, there is therefore a stronger argument for requiring a longer qualifying period before automatic rights arise.
Unintended behavioural consequences
Where legal obligations are triggered after a relatively short period, individuals may adjust their behaviour to avoid falling within the scope of the regime. This may include delaying cohabitation, maintaining separate residences on paper, or structuring financial arrangements to avoid the appearance of interdependence.
In some cases, it may also discourage individuals from assuming a meaningful role in relation to a partner’s child, for fear of falling within the “child of the family” exemption.
Such behavioural responses would sit uneasily with the broader policy aim of promoting fairness and stability within family relationships. A longer qualifying period would make it less likely that individuals would go to the trouble of structuring their affairs to avoid the regime, while still providing protection for genuinely long-term and committed relationships.
Reflecting reality
If reform is to command public confidence, the qualifying criteria must reflect both the realities of modern relationships and public expectations as to when legal obligations should arise.
The persistence of the “common law marriage” myth already illustrates the extent of public uncertainty about the legal consequences of cohabitation. Reform should seek to dispel that misunderstanding, not inadvertently replace it with a new assumption that relatively short periods of cohabitation automatically generate divorce-like financial consequences.
If legal obligations arise earlier than most people would reasonably expect, the result is likely to be not greater fairness, but greater confusion and diminished confidence in the law. Against that backdrop, a three-year threshold is unlikely to align with public understanding of when a relationship should give rise to legally enforceable claims.
About the author
Laura Tanguay is a partner at Birketts LLP and leads the home ownership disputes team, specialising in TOLATA and cohabitation disputes. She regularly advises on claims arising from relationship breakdown and writes and speaks on developments in this area of law.
