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There is no such thing as a ‘common law wife’ or ‘common law husband’, and it’s one of the most common misconceptions in family law. Many couples believe that living together for a certain number of years gives them the same legal rights as married couples, but that simply isn’t true.
Cohabitation is now the fastest-growing type of family relationship in England and Wales, yet the law has struggled to keep pace. Following years of calls for reform, the Government has launched proposals that could significantly change the rights of unmarried couples when their relationship ends.
While these proposals are still under consultation, they also highlight something that has been true for many years: if you live together without being married or in a civil partnership, a cohabitation agreement remains one of the best ways to protect both of you.
Who would qualify as a cohabiting couple?
The proposals are intended to apply to couples who are in a committed, long-term, interdependent romantic relationship. They are not designed to cover: casual relationships; friends or housemates sharing accommodation; married couples; civil partners; close relatives who cannot legally marry; or anyone under the age of 18.
In most cases, couples would need to have lived together for at least three years before qualifying for the new legal framework. However, this minimum period would not apply when the couple have a child together or one party has helped raise a child who is considered a ‘child of the family’. The Government has made it clear that protecting the welfare and stability of children is one of the main objectives behind these proposed reforms.
Time limits for making a claim
If introduced, there would be a two-year time limit from the date of separation to make a claim under the new legislation. If this deadline is missed, property disputes would still need to be dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), which offers much more limited protection.
A needs-based approach
Unlike divorce, the proposed legislation would not assume that assets should be divided equally. Instead, the focus would be on meeting reasonable financial needs. The Government has identified four key principles:
Putting children’s needs first: Providing suitable housing and financial stability for the primary carer helps ensure continuity for children after separation.
Protecting vulnerable people: The proposals recognise that some people become financially disadvantaged after taking time away from work to care for children or support their partner. The courts would also be able to consider serious illness or disability when assessing needs.
Preserving the distinction between marriage and cohabitation: The Government has made it clear that cohabitation should not become ‘marriage by another name’. There would be no automatic 50/50 division of assets, and the court’s powers would be more limited than they are on divorce.
The aim is to provide an accessible system that focuses on meeting essential financial needs while helping individuals become financially independent as soon as it is fair to do so.
How would the court assess needs?
The proposed process has two stages.
Stage One: The court would first consider the housing and financial needs of any children.
Stage Two: The court would then assess each person’s financial needs, including: housing; capital; income; pension provision; and serious illness or disability.
Lifestyle during the relationship would not determine the outcome. Instead, the focus would be on meeting essential needs rather than maintaining a particular standard of living. The court would also consider: earning capacity; financial resources; physical or mental disability; age; and the length of the relationship.
What financial orders could the court make?
The proposed remedies include: property adjustment orders; lump sum orders; and pension sharing orders. Maintenance would only be available in exceptional circumstances. The Government has also stressed that cohabiting couples should not expect the same financial outcomes as divorcing spouses.
Opting out through a cohabitation agreement
One of the most interesting aspects of the proposals is that couples would be able to opt out of the new legal framework by entering into a cohabitation agreement. This demonstrates the Government’s recognition that many couples want the certainty of deciding for themselves what should happen if their relationship ends.
To be legally effective, a cohabitation agreement would need to satisfy a number of safeguards, including:
- being a valid contract entered into freely;
- being executed as a deed;
- confirming that both parties understand they are opting out of the legislation;
- full financial disclosure by both parties; and
- independent legal advice for each person.
These requirements closely reflect existing best practice when preparing cohabitation agreements.
Why a cohabitation agreement still matters
Although these proposals represent a significant change, they are not yet law. Even if they are introduced, many couples may not qualify because they have not lived together for long enough or because they separate outside the proposed two-year time limit.
More importantly, the proposals are based on meeting needs. They are not intended to give cohabiting couples the same rights as married couples.
A professionally prepared cohabitation agreement allows couples to decide for themselves how property, savings, debts and other financial matters should be dealt with if they separate, rather than leaving those decisions to a court.
It can also: record who owns what when you move in together; protect contributions towards a property; clarify responsibility for bills, mortgages and other financial commitments; reduce uncertainty if the relationship comes to an end; and help avoid costly disputes in the future.
For many couples, having these conversations at the start of living together provides reassurance rather than creating conflict.
What if the new law doesn’t apply?
If the proposed legislation does not apply, or a claim is brought outside the proposed two-year time limit, existing legal remedies would still remain available.
TOLATA
Claims under the Trusts of Land and Appointment of Trustees Act 1996 deal with disputes over property ownership but do not provide the wider financial remedies available under the proposed reforms.
Schedule 1 of the Children Act 1989
Parents may still apply for financial provision for a child under Schedule 1 of the Children Act 1989, and the proposals make clear that a cohabitation agreement should not prevent these applications or claims through the Child Maintenance Service.
What happens next?
The Government’s consultation closes on 14th August 2026, after which it will consider responses before deciding whether to introduce legislation.
Even if the law changes, it is unlikely to remove the need for cohabitation agreements. In fact, the proposals reinforce how valuable these agreements are by allowing couples to opt out of the statutory scheme altogether.
If you are planning to move in with your partner, already live together, or are buying a property together, now is a good time to consider putting a cohabitation agreement in place. Taking advice early can provide certainty, help protect your financial interests and reduce the risk of disputes in the future.
Have your say
Read the full consultation document:
https://www.gov.uk/government/consultations/a-fairer-end-to-relationships
Submit your response:
https://consult.justice.gov.uk/digital-communications/a-fairer-end-to-relationships-consultation/
If you would like more information on our Family Law services, please click here. If you would like to contact me to discuss your own circumstances, please email via [email protected] or call 01457 860606.
