On Friday, the government published its long-awaited consultation on reforming cohabitation rights, in what it called “the biggest reform to family law in decades” with the aim of “bringing the law into the 21st century”.
As well as seeking feedback on proposals to strengthen the laws protecting cohabitants on separation and the provision in cases of intestacy, the reforms aim to clarify and codify financial remedies on divorce and dissolution.
The proposals have been broadly welcomed by family law solicitors and barristers, but many warn of challenges with implementation.
Reaction
Kirsty Brimelow KC, chair of the Bar Council: “It is welcome that the government is focusing on the lack of legal protections for those who are financially vulnerable at the end of a relationship, including survivors of domestic abuse and economic abuse. The law should provide effective remedies where there has been dependency, disadvantage or abuse whilst offering legal certainty.
“Crucially, it is vital that reforms are supported by a family justice system that is properly resourced and accessible to those who need it.”
Sam Hillas KC, leader of the Northern Circuit: “Prioritising fair outcomes for children and victims of domestic abuse are two of the core principles identified in today’s announcement of the much-awaited consultation in this area of family law.
“For too long our law has been out of step with modern society. For too long our law has been unable to protect unmarried parties who can be left in a vulnerable position following separation. For too long our law has failed to reflect the devastating consequences of domestic abuse, which cannot always be measured financially.
“Most often, those left to suffer are children and women. This is an opportunity for the government to step in and right those wrongs. I await the outcome of this consultation with optimistic interest.”
Michal Stepniak, associate in the Family department at Simkins LLP: “This consultation is a significant step towards bringing greater clarity and fairness to financial remedies law. The current system is highly discretionary, which can create uncertainty for separating couples. Codifying core principles such as ‘needs’ and ‘sharing’ has the potential to make outcomes more predictable, while still preserving flexibility where it is needed.
“One of the persistent criticisms of the current regime is that outcomes can feel inconsistent and difficult for clients to predict. That is not simply a product of judicial discretion, but of a legal framework that has developed in layers over time. Greater clarity is welcome, but the challenge will be achieving it without over-simplifying inherently complex financial relationships.”
Alison Fernandes, partner with Hall Brown Family Law: “It is generally acknowledged that the provision of financial remedy for cohabitees is necessary. However, the suggestion of connecting any settlements to conduct is contrary to the ’no-fault’ regime which now exists on divorce.
“Furthermore, examining allegations of domestic abuse is likely to involve more court proceedings because cases involving such claims are generally considered unsuitable for non-court dispute resolution.
“That will mean additional workload for a family justice system which is already stretched. We must remember, though, that what the Government has done is simply start the process of discussion rather than introduce legislation.
“Anything which can remove the uncertainty or need to resort to complicated property claims once unmarried relationships come to an end will be regarded as progress and welcome by those involved.”
Jemma Pollock, partner in the Family and Children team at Russell-Cooke LLP: “Schedule 1 of the Children Act simply wasn’t designed to properly provide for our current society, where children having parents who aren’t married is fast becoming the norm. The consultation recognises this by providing the financial rights for couples who have children together regardless of how long they have lived together, recognising the commitment and responsibilities, and detriment to main carers, that arise from having children regardless of marital status.
“We can protect cohabitees and their children without undermining marriage or imposing obligations on people who are informed about their position and actively choose not to have them. There will be opt out provisions to enable people to make their own decisions and this is one of the main focuses for me to ensure that we strike a balance of recognising the right to choose for those who are properly informed and protecting those who are vulnerable or not aware of their rights.”
Jennifer Hudec, senior associate at Maguire Family Law: “Reform should recognise that long-term cohabitating couples need certainty and security if the relationship ends or one person dies.
“Modern family dynamics need to be reflected in family law. By opening up the conversation on stronger rights for cohabitating couples, alongside protection for those experiencing domestic abuse, inheritance rights and legally binding pre-nuptial agreements, there is a real opportunity to make changes to ensure the law meets the needs of families today.”
Kirsty Morris, partner at Burgess Mee: “Today’s announcement is an important step towards providing a base line of financial protection and legal rights for cohabiting couples that recognises the reality of modern relationships.
“Legal reform has the potential to bring greater fairness for families, but it will be important to strike the right balance between default legal protection if certain family circumstances apply, and personal choice to opt out of the regime.
“It is perhaps unsurprising that the recommendations are to be no more favourable than for a divorce or dissolution situation – the proposals are deliberately ‘light touch’. Close consideration will need to be given to the exact proposals in relation to, for example, where maintenance might be payable to ensure there are no gaps in coverage for those in need.
“An opt-out arrangement may lead to spike in interest in properly defined cohabitation agreements or in separations around the three-year threshold where there are no children.”
Peter Burgess, senior partner at Burgess Mee: “There has long been a consensus that 50 years of case law to interpret the statute dating back to 1973 needs parliamentary oversight.
“The government’s particular focus on both economic abuse and ensuring fair pension provision for retirement are of particular note. For too long, these aspects of financial remedies work have been neglected, to the detriment of victim survivors and those suffering from an economic or psychological imbalance in their relationship.”
Antonia Mee, senior partner at Burgess Mee: “Reform of the law surrounding prenups is to be welcomed. Already, a prenup can bring much greater certainty and protection to a spouse looking to preserve their wealth, while the financially weaker party will be much clearer as to the likely financial outcome in the event of a separation.
“Greater clarity should in theory reduce the scope for litigation as there will be very limited exceptions when a court may depart from the terms of any prenup, for example, owing to material undue influence or misrepresentation.”
Sarah Jane Lenihan, partner at Dawson Cornwell: “I often sit across the table from devastated clients learning that their years of shared life and sometimes significant sacrifice after a long cohabiting relationship confers virtually no legal rights for them. Today’s consultation will be welcomed by them as a serious attempt to address what they see as a real injustice.
“There will inevitably be differing views on where the line should be drawn between protecting vulnerable individuals and respecting personal autonomy. That is precisely why it is so important that family lawyers engage with this consultation. The profession has waited many years for a meaningful opportunity to influence reform in this area, and practitioners should make their voices heard.”
Louise Kelly, associate solicitor at WSP: “Reforms are long overdue and very much needed to try to balance the unfairness of the legal rights between married couples and cohabitants.
“The suggestion of three years before couples are considered cohabitants would mean a continued imbalance of rights between married and unmarried couples.
“There could be an issue with proving cohabitation – this does need to be defined carefully.”
Sebastian Burrows, partner in the family team at Birketts LLP: “Fundamental change is long overdue. The family law field is progressive and humane, but cohabitation law has been behind for so long. With blame removed from divorce, cohabitation reform is the next vital piece in the jigsaw. Fairness must be the foundation for separating modern families. Too many people, and children, have been let down by a system anchored to the institution of marriage. Every family lawyer has experience of a client, often a victim of abuse, having to ‘walk away’ with nothing. Those stories are the tip of the iceberg. Change will go a long way to redress that.”
Corinne Parke, family partner at Keystone Law: “Whatever form future legislation takes, a cohabitation agreement remains one of the most effective ways to protect each party’s interests, set expectations, reduce disputes, and provide certainty (including where wider family members have contributed financially). A cohabitation agreement can also be used to agree day-to-day arrangements such as bill-splitting and household responsibilities. It should consider the full financial picture, including property, savings, investments, and pensions (and clarity around contributions and ownership).”
Olivia Piercy, partner in the Family team at Hunters Law LLP and co-chair of Resolution’s working party on economic abuse: “This consultation represents a significant and welcome opportunity to ensure that the law more effectively reflects the economic realities faced by survivors. It is essential that any reform ensures the financial impact of abuse is properly recognised and addressed within the courts’ decision‑making and that the law and procedure prevents economic abuse from being perpetrated through the financial remedy process.”
Agata Osińska, partner at International Family Law Group: “This consultation means that, for the first time in a generation, there is a meaningful opportunity to bring the law closer to how millions of couples actually live today.
“The law has been out of step with reality for some time and this feels like a genuine attempt to close that gap.
“I have seen first-hand how quickly someone’s sense of security can disappear – no financial support, no home and often no clear route forward. Too often, people simply give up because the system offers them so little to work with.
“This is one of those rare moments where the law appears to be catching up with reality. If delivered as intended, it will finally allow us to give clients a clearer, fairer answer when they ask: where do I stand?”
Ciara Pugh, partner at Stowe Family Law: “The consultation proposes that couples must have lived together for at least three years, or have a child together, and courts will still need to determine whether they were in an ‘enduring family relationship’.
“How those tests are defined and applied will be crucial. It’s vital any structures put in place are clear, concise and easily understandable for cohabiting couples, otherwise there is a risk that the floodgates will be opened for unmarried couples who are confused or misled about their rights, only exacerbating the existing ‘common law spouse’ issues.”
Jo Edwards, head of family at Forsters: “This is a pivotal moment for the future of family law. Despite being the fastest-growing family type in the UK, we see all too often that cohabiting couples remain largely without legal protection on separation or death, which can have devastating consequences for the financially weaker partner and for children.
“The challenge now is to develop a principled framework that reflects how people live today and protects victims of domestic abuse, while preserving the distinct legal status of marriage and civil partnerships. If done well, this is a once-in-a-generation opportunity to create a fairer, more coherent system of rights and responsibilities for modern families.”
Graeme Fraser, chair of Resolution’s Cohabitation Committee: “Reform in this area is long overdue, and it’s great to see Resolution’s work over the years bear fruit. As professionals who see people dealing with the fallout of the current lack of legal protection, we know just how much these reforms are needed.
“We look forward to providing our views on the government’s proposals, and will continue to work with officials and ministers ahead of any legislation, which we hope will be introduced at the earliest possible opportunity.”
