The government’s consultation on strengthening legal protections for cohabiting couples represents the most significant opportunity for reform of cohabitation law in England and Wales for many years. In its August 2026 response, Resolution broadly welcomed the proposed framework, describing reform as long overdue given the growing number of couples who live together without marrying and the continuing misconception that ‘common law marriage’ provides legal rights on separation.
At present, many separating cohabitants must rely on complex and often unsatisfactory claims under TOLATA and Schedule 1 of the Children Act 1989. Resolution supports the Government’s proposal to introduce a bespoke statutory framework that would provide a clearer and more accessible route to financial remedies following separation.
A key feature of the proposed reforms is eligibility. Resolution agrees that the new scheme should apply to couples living together in an ‘enduring family relationship’, rather than all people who happen to share a home. It supports a flexible list of factors to determine whether a couple qualify as cohabitants, including financial arrangements, public recognition of the relationship, responsibility for children and the existence of a joint household.
Resolution also broadly supports a minimum qualifying period but suggests three years of cohabitation strikes the right balance between protecting vulnerable partners and avoiding claims arising from short relationships. Importantly, it agrees that any minimum duration requirement should be removed where the couple have a child together, recognising that parenthood often creates economic dependency regardless of the length of the relationship. Resolution’s response and the discussion over whether two or three years would be appropriate only highlights the difficulty in finding a middle ground.
Perhaps the most significant aspect of Resolution’s response concerns the basis of financial claims. The government has proposed a needs-based model, rather than one based on sharing assets or compensating for relationship-generated disadvantage. Resolution supports this approach, acknowledging that it is simpler and more likely to produce accessible outcomes. However, it warns that ‘needs’ must not be defined too narrowly. It argues that cohabitants should not be left facing hardship simply because they chose not to marry and that children’s needs should be protected irrespective of their parents’ marital status.
Resolution is concerned about proposals to separate ‘essential’ and ‘discretionary’ needs. It believes this distinction is artificial, could be difficult for families and courts to apply, and may lead to more disputes. Instead, Resolution argues that needs should be assessed in light of the family’s circumstances, including their standard of living during the relationship and their future financial requirements, while still recognising that cohabiting couples should not have the same sharing rights as married couples.
Another area of concern is maintenance. The consultation proposes that maintenance should be available only in exceptional circumstances. Resolution considers this too restrictive. It argues that limited-term maintenance may be essential in some cases, particularly where there is insufficient capital to meet housing needs, where one party has suffered economic disadvantage through childcare responsibilities, or where domestic abuse has affected earning capacity. A rigid ‘exceptional circumstances’ test, it says, risks leaving vulnerable parties and children without adequate protection.
Resolution also supports the government’s proposed opt-out model. Under this approach, eligible cohabitants would automatically be covered by the new framework unless they choose to exclude themselves through a valid agreement. Resolution considers this to be a sensible compromise, providing protection for financially vulnerable individuals while preserving the freedom of those who have consciously chosen not to marry and do not wish to acquire similar financial rights and responsibilities
Resolution’s response is broadly supportive of the proposed reforms, while recognising that further refinement is needed. It emphasises the importance of creating a system that protects financially vulnerable cohabitants and their children, without blurring the distinction between cohabitation and marriage. Resolution’s view is that if implemented effectively, the proposals could provide much-needed protection for many families who currently fall through the gaps in the law.
A practitioner’s perspective
Having practised in this area for many years, I have acted for clients on both sides of the cohabitation debate. Some would undoubtedly have benefited from the protections proposed by the Government, having made significant financial and personal sacrifices during a long relationship only to discover, on separation, that they had very limited legal remedies available to them. For those individuals, reform is long overdue.
Equally, I have represented clients who made a conscious decision not to marry because they wanted to maintain financial independence and keep their assets separate. Their choice was deliberate and reflected their personal and financial values.
The challenge for policymakers is therefore how to protect financially vulnerable cohabitants without undermining personal autonomy. Resolution’s support for an opt-out model attempts to strike that balance, extending protection to those who need it while preserving choice for those who do not wish to acquire rights similar to marriage.
However, the success of any opt-out system will depend heavily on public awareness. There is a real risk that individuals who would have chosen to opt out may find themselves bound by the new regime simply because they were unaware of their options. Policymakers must also consider the financial burden of opting out. Obtaining legal advice and preparing a formal agreement may be manageable for some couples, but prohibitively expensive for others. Any new framework will need to ensure that cohabitants are not only informed of their choices but are also able to exercise them in a practical and affordable way.
Ultimately, there is no perfect, one-size-fits-all solution. The real test of reform will be whether it achieves a fair balance between protecting vulnerable individuals and respecting the decisions of those who have consciously chosen a different path from marriage.
About the author
Lucia Mills is a specialist property dispute solicitor with extensive experience in Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) claims, cohabitation disputes and beneficial ownership disputes. She advises individuals involved in disagreements over jointly owned and solely owned property, including disputes between former partners, family members, friends and co-investors. Lucia also regularly acts for international clients with interests in property in England and Wales, helping them navigate complex cross-border ownership and trust disputes.
Lucia regularly advises on the establishment and quantification of beneficial interests arising from express trusts, common intention constructive trusts, resulting trusts and proprietary estoppel. She represents clients in applications for sale, deferred sale arrangements, buyouts, occupation rent claims and complex equitable accounting disputes, providing strategic advice aimed at achieving practical and cost-effective outcomes.
In addition to TOLATA matters, Lucia advises parents on potential claims under Schedule 1 of the Children Act 1989, including applications for housing and financial provision for children following the breakdown of a relationship between unmarried parents. She is experienced in advising clients on the legal and financial issues that can arise when family relationships and property ownership overlap.
Lucia also has a particular specialism in representing intervenors in Financial Remedy Proceedings. Having started her career as a family law practitioner, she brings a unique combination of property and family law expertise to disputes involving third-party interests in divorce proceedings, including claims concerning beneficial ownership, trusts, inherited assets and family property.
The views expressed in this article are those of the author and not necessarily those of Today’s Family Lawyer.
