With the government’s consultation on its proposals to reform rights for cohabitating couples set to close at 11.59pm on 14thAugust, representatives from the legal sector have begun to share their responses.
The Law Society of England and Wales welcomed plans to provide a clearer financial framework for families ending a marriage or cohabiting relationship, but emphasised the reforms will require improved legal aid provision to bolster support for children and domestic abuse survivors.
“The proposed reforms make the law clearer for families by bringing existing court principles on financial remedies into legislation, while retaining judicial flexibility”, the society said.
“It extends important protections to cohabiting couples following separation or when a partner dies without leaving a will. The reforms would also allow judges to consider the economic and financial consequences of domestic abuse when making orders.”
Law Society president Mark Evans added: “The reforms put forward by the government help provide certainty and clarity for families going through a separation, whether ending a marriage or a cohabitating relationship.”
Commenting on support for survivors of domestic abuse, he continued: “For the proposed reforms to achieve their aim, they must be accompanied by improvements to legal aid. People’s access to legal aid is severely restricted by an outdated means test and dwindling supplier base due to lack of investment
“When survivors can’t get access to legal aid, they often face difficult choices: take on debt to get legal representation or represent themselves in court without legal advice.
“If the government is serious about their commitment to halving violence against women and girls, survivors need access to legal aid to level the playing field. Restoring early legal advice will help people resolve their disputes earlier and reduce pressure on the courts, which is a key aim of the consultation.
“The government must invest in legal aid as a public service, to help ensure that these new rights translate into real outcomes.
“It should also embark on an awareness campaign so we all understand what these changes could mean for us and our families, while making it clear that cohabiting couples can opt out of the framework.”
Read the Law Society’s consultation response in full
Laura Tanguay, partner and head of home ownership disputes in the property disputes team at Birketts LLP, shared her concerns that the case for reform is not as clear‑cut as suggested, and that the proposed approach risks creating as many difficulties as it seeks to resolve.
She explained: “First, the proposed scheme would introduce an opt‑out statutory regime under which financial obligations arise automatically once certain factual criteria are met.
“This represents a significant departure from the current position, effectively imposing legal consequences on individuals who have not positively chosen to assume them. In contrast, marriage and civil partnership are entered into through a clear and deliberate act. The proposed regime risks undermining that distinction by attaching similar consequences to relationships without any formal expression of consent.
“Of particular concern is that the new regime would override existing agreements, including declarations of trust and cohabitation agreements, in which couples have carefully articulated what they want to happen in the event of their separation. It is overly paternalistic and inappropriate for the State to cast such agreements to one side in favour of an imposed sharing system over which the parties have no control.
“Secondly, the suggested three‑year qualifying period is an arbitrary and totally insufficient proxy for commitment. Cohabitation often begins for practical reasons – such as reducing living costs or testing compatibility – rather than as a marker of financial interdependence or long‑term commitment. A relatively short period of shared living does not necessarily justify the imposition of potentially far‑reaching financial obligations.
“Thirdly, the breadth of judicial discretion envisaged under the proposals – including the availability of property adjustment orders, pension sharing, lump sum awards and, in some cases, ongoing maintenance – means that the scheme may not significantly reduce litigation or uncertainty.
“Indeed, a framework dependent on fact‑sensitive concepts such as whether a relationship is ‘committed’ or ‘enduring’ risks increasing, rather than decreasing, disputes.
“More fundamentally, I do not consider that wholesale reform is required. While the current legal framework can occasionally produce outcomes that may be perceived as unfair in some cases, that is true of any system. We already have a highly sophisticated judicial framework, with experienced judges accustomed to dealing with these disputes and a range of established principles under trust and property law, which allow the court to reach equitable outcomes.”
“In my view, a more proportionate and effective response would be to improve public understanding of the law as it currently stands. The persistence of the ‘common law spouse’ myth demonstrates a significant gap in public awareness. The way to fix that is not to legislate it into reality.
“Many individuals simply do not appreciate that cohabitation alone does not confer automatic financial rights. Addressing that misconception would, in many cases, allow couples to make informed decisions about how to structure their affairs.”
The Society of Pension Professionals (SPP) has called for the modernisation of how pension assets are treated on the breakdown of marriages and cohabiting relationships in its response to the consultation.
“Pensions often represent a household’s largest or second-largest asset, yet historically they have been overlooked or undervalued compared to immediate needs like housing”, the SPP explained in a statement.
“The SPP recommends codifying the distinction between matrimonial and non-matrimonial property, placing pension needs on an equal statutory footing in financial remedy decisions, and extending pension sharing orders to qualifying cohabitants.
Key recommendations from the SPP’s consultation response include verified pension dashboard records to become a standard part of court disclosure, introducing pension sharing orders for qualifying cohabitants and extending eligibility for dependants’ pensions to cohabitants automatically, and establishing clear, objective legal definitions for ‘qualifying cohabitants’.
Oliver Topping, chair of the SPP’s Legislation Committee, said: “Pensions are fundamentally long-term assets designed to provide security in retirement, yet they are too often overlooked during relationship breakdowns. This is frequently to the detriment of the financially weaker party who may have taken career breaks for caregiving.
“Pension needs should be given equal prominence in family law and vital protections such as pension sharing should be extended to cohabiting couples.
“Harnessing the new Pensions Dashboards programme for court disclosure would be a game-changer in ensuring full transparency.
“However, to make these reforms workable in practice, policymakers must provide clear, objective criteria for defining qualifying cohabitants and allow the pensions industry sufficient lead-in time to adapt.”
See the SPP’s consultation response in full.
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