On 5 June 2026, the government published its Green Paper, A fairer end to relationships, setting out proposals for reform across three areas of the law in England and Wales. This blog will focus on the proposed reform of the law affecting unmarried cohabiting couples when they separate.
Whilst this is only a consultation paper and is not yet law, it highlights the Government recognising the need for reform in this area.
What is being proposed?
The government proposes a new statutory framework for certain cohabiting couples on separation and all cohabiting couples would fall within the framework unless they had formally opted out.
The proposed framework would be narrower than divorce but would still give the court access to a broad range of remedies, which aren’t otherwise available under the current law.
The starting point would be that each person keeps what they legally own and the court would only depart from that position where necessary to meet a party’s needs. However, a cohabitant’s needs would be more limited than a party who is divorcing.
Who would the framework cover?
The current proposal is that the framework would apply to adults living together as a couple in a long-lasting, committed family relationship. In general terms, a couple without children would need to have lived together for at least three years. The 3-year minimum period wouldn’t apply if the cohabiting couple had a child together or there was a child of the family. The idea being that the target audience is those committed, long-term relationships rather than unromantic cohabiting scenarios including flatmates and shared living arrangements etc.
The Green Paper suggests that the court would be guided by a checklist of factors, some of which are as follows:-
- The stability of the relationship and whether there was a sexual relationship
- The parties financial arrangements
- If there are any children
A framework based on the above-mentioned factors is likely to cause acrimony and dispute between parties due to the sensitive nature of them.
Is cohabiting for three years long enough?
The proposal that a cohabiting couple without children may fall within the framework if they have cohabited for three years seems very low. Nowadays, many couples rent for several years before buying a property or having any long-term commitments, however, under these proposals, three years would be enough to expose them to a property adjustment order, a lump sum order, a pension sharing order or in exceptional circumstances, maintenance.
If there where children involved, the Green Paper proposes that there should be no minimum period of cohabitation which opens the framework to very short relationships, potentially causing dispute over when the cohabitation began (particularly if there isn’t a clear or agreed date) and whether a child was treated as a child of the relationship.
Why can you opt out of the framework?
It is important to have freedom and the government recognises this in the framework. However, it is proposed that cohabiting couples should only be able to opt out of the framework having both received independent legal advice and engaged in voluntary financial disclosure. This is sensible when there is concern over coercion, control and manipulation in relationships. However, there is a fine line between the safeguards becoming too protective resulting in the option of opting out being too expensive or daunting for couples.
The main difficulty here is at what point during a relationship will a cohabiting couple consider opting out where there is no obvious trigger to strike the conversation? The reality is that most cohabiting relationships will unconsciously drift into the framework over time whether the outcome of being in the framework was desired or intended.
What is a party’s ‘needs’?
‘Needs’ would include housing, capital, income and pension. The court would also be able to take account of wider circumstances not directly caused by the relationship, (such as illness or disability) and also consider the circumstances when one party reduced their working hours to take care for a child.
How will the proposed framework fit with existing arrangements?
The consultation paper makes it clear that the legal ownership remains the starting point and that TOLATA (Trusts of Land and Appointment of Trustees Act – being the current legislation for co-owners to claim financial recognition in respect of property) would continue to operate in certain cases. However, how will the proposed framework interact with existing arrangements and factor in cohabitation agreements or declaration of trusts? Will the introduction of a needs basis framework undermine the certainty of a declaration of trust or what cohabitants have previously agreed in a cohabitation agreement for example? The Green Paper does not explain this at present.
The two-year time limit
The government proposes a two-year limitation period for bringing a claim after the relationship ends and says this should apply even if the parties continue living in the same property after the relationship has ended.
That is likely to generate dispute about precisely when a relationship ended and may result in the issuing of court proceedings without considering other means of resolution first, due to the time limitations. At the moment, limitation isn’t an issue on TOLATA claims which gives partes the opportunity to explore alternative dispute resolution options.
Will TOLATA claims still exist?
The Green Paper indicates that TOLATA claims would still exist, however, qualifying cohabitants would instead pursue claims under the new statutory scheme, while those who fall outside it (including those who opt out or are time-barred) would continue to rely on TOLATA. The proposed reform may reduce the volume of TOLATA claims, but it wouldn’t disappear. The proposals seem to be making the system more complicated; we have one framework for divorce, one for qualifying cohabitants and TOLATA for everyone else, when the whole idea is to make things easier.
The common law marriage problem may get worse, not better
The main reason for the reform is the misconception of the ‘common law marriage’ which simply doesn’t exist. A potential problem with introducing automatic statutory rights for some cohabitants is the continued belief of this misunderstanding rather than eliminating it.
For now, we will have to see how this unfolds and will keep you updated on any developments.
Krista Enziano is a Director/Solicitor at Northern Law Solicitors. For more information please contact her on: 01706 398 398 or email: krista.enziano@northernlaw.co.uk
Information correct at the date of this blog
