A fairer end? Navigating the new cohabitation proposals

With the launch of the Ministry of Justice’s consultation on June 5, A Fairer End to Relationships, the Government's intentions for introducing distinct cohabitation protections are clear, yet the practical implications of implementing any statutory regime remain highly significant for family law practitioners. 

The proposals suggest a targeted statutory framework, applying only to “eligible” couples, meaning those in an enduring and committed romantic relationship who have either lived together for a minimum period (suggested as being three years) or who share a child. This threshold-based approach was anticipated and mirrors the framework in other jurisdictions. As such, the proposed legislation will not be available to couples who live together for a short period of time, or to individuals who are family members or carers, who live in the same home for more than three years but are not in a romantic relationship.

The definition of cohabitants will be the first challenge for practitioners. Where there are no shared children, they will have to carry out a thorough analysis of whether clients have the requisite level of relationship to qualify for the legal protections. The concept of an “enduring family relationship” is fact‑sensitive and may require judicial interpretation. Factors such as financial interdependence, shared domestic arrangements, and the stability of the relationship are all relevant, but none are determinative. This introduces a degree of uncertainty. Couples who take their time to move in together may find that there are disputed dates for when cohabitation commences, so, in addition to the qualities of the relationship, practitioners may also face arguments about its length. 

The rights proposed in the consultation are deliberately constrained and purposefully less than the rights afforded to married couples on divorce. The model centres on a needs‑based approach, with the starting point that individuals retain what they legally own. Orders for assets to change hands will be made only as required to meet the less well-off party’s needs. This means that each case will require more analysis of what the parties “needs” are and how those can be met from their own assets, before any orders are made at all.  

Once the quantum of the financial award has been calculated, the court will be able to make a similar range of orders as those available on divorce, including property adjustment, lump sums and, in limited cases – where it is really necessary – maintenance for a period of time. 

In addition, to strengthen the idea that cohabitation is a family status to be afforded legal protection, the proposed reforms to inheritance law would represent a significant shift. Extending intestacy rights to qualifying cohabitants would address one of the starkest deficiencies of the current regime, where surviving partners can find themselves with no automatic entitlement to inherit from their partner, regardless of the length or nature of the relationship.