Cohabitation law reform: key impacts of the government’s Green Paper

On 5 June 2026, the government published its Green Paper, A fairer end to relationships, setting out proposals for reform across three areas of law in England and Wales: financial remedies on divorce and dissolution, rights for cohabitants on separation, and rights for cohabitants on death. This article focuses on the second of those proposals, namely reform of the law affecting unmarried cohabiting couples when they separate.

It is important to emphasise at the outset that this is only a consultation paper; it is not law. It does, however, give the clearest indication to date of the direction in which the government is thinking, and the implications could be significant.

What is being proposed?

The government proposes a new statutory framework for certain cohabiting couples on separation. It would operate on an opt-out basis, so that qualifying cohabitants would fall within the scheme automatically unless they have formally opted out.

The proposed framework would be narrower than divorce but would still give the court access to a broad range of remedies, including property adjustment orders, lump-sum orders, pension sharing orders and, in some cases, ongoing maintenance payments.

The starting point would be that each person keeps what they legally own. The court would depart from that position only where necessary to meet defined needs. Those needs are intended to be more limited than on divorce and accompanied by a stronger emphasis on clean break, with ongoing maintenance confined to “exceptional” circumstances, for instance.

Who would the scheme cover?

The current proposal is that the scheme would apply to adults living together as a couple in an enduring family relationship. In general terms, a couple without children would need to have lived together for at least three years. That minimum period would be disapplied where the couple have a child together, or where there is a child of the family.

The government’s intention is to target romantic, committed, long-term and interdependent relationships, while excluding flatmates, siblings and other shared living arrangements. However, the concept of a “committed relationship” is not clearly defined.

The Green Paper suggests that the court would be guided by a non-exhaustive checklist of factors, including the existence of a joint household, the stability of the relationship, the parties’ financial arrangements, responsibility for children, the presence of a sexual relationship and how the couple present themselves publicly.

A framework built on such fact-sensitive concepts is unlikely to reduce disputes. Questions may arise as to:

• the true nature of the relationship
• whether and when it became sufficiently “committed”
• whether the parties were in a sexual relationship
• how they presented themselves to others
• other personal aspects of their private lives.

These are not peripheral issues. They go directly to whether the statutory regime applies at all. In practice, they risk leading to intrusive and potentially uncomfortable questions about the most intimate aspects of a couple’s relationship.

Is three years long enough?

The proposal that a couple without children may come within the statutory scheme after three years of cohabitation is, in practical terms, a strikingly low threshold. Many couples rent together for several years before buying property or making any long-term joint legal commitments. Yet under these proposals, three years would be enough to expose them to pension sharing, property adjustment, lump sum orders and even maintenance.

The point is even more stark where children are involved, because the Green Paper proposes that there should be no minimum duration requirement at all where there is a shared child or a child of the family. That is capable of bringing very short relationships within the regime and is likely to create disputes not just about when cohabitation began, but also whether a child was treated as a child of the relationship.

The opt-out model is both necessary and problematic

The government rightly recognises the importance of preserving autonomy. It therefore proposes that couples should be able to opt out of the new regime – but only with safeguards, including a valid deed, material financial disclosure and independent legal advice for each party. It also proposes that the requirement for disclosure and legal advice should not be waivable.

That is understandable, particularly where there is concern about pressure or coercion in relationships. But the more protective the safeguards become, the more formal, cumbersome and expensive opting out is likely to be. There is a tension here that the paper does not resolve. The framework is supposed to be accessible and easy to understand yet avoiding it may require legal advice and formal documentation.

There is also a more fundamental difficulty. Unlike the creation of a declaration of trust on the purchase of a property, there is no identifiable event or transaction that prompts cohabiting couples to consider their legal position. There is no moment equivalent to a conveyancing transaction that triggers discussion.

As a result, most couples are unlikely to take active steps to opt out. Instead, relationships may simply drift into the statutory regime over time, without any conscious consideration of whether that outcome is desirable or appropriate.

This is compounded by the fact that there may not even be a clear or agreed date marking the relevant three-year anniversary, creating further uncertainty as to whether the regime applies at all.

A needs-based label, but a wider reality

Although the scheme is presented as a narrowly needs-based framework, the detail suggests a broader and more discretionary regime in practice. 

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. In addition, the government proposes a checklist of factors that may include what it describes as a compensation factor, such as where someone reduced work to care for a child.

A model said to reject sharing and compensation as organising principles may nevertheless import both those considerations indirectly, through the language of needs, fairness and relationship-generated disadvantage. That in turn risks expanding litigation rather than containing it.

What about existing arrangements?

The consultation makes clear that legal ownership remains the starting point and that TOLATA would continue to operate in certain cases. Even so, there remains a significant and unresolved question as to how the proposed framework would interact with existing arrangements, including declarations of trust and cohabitation agreements.

At present, those arrangements can provide a high degree of certainty. A declaration of trust is generally conclusive as to the parties’ beneficial interests, save in limited circumstances. The introduction of a statutory, needs-based overlay risks cutting across that certainty unless the eventual legislation contains clear and robust transitional provisions. The Green Paper does not yet explain how that will be achieved.

There is also a practical concern. Will couples already in long-standing relationships – for example, those who have been cohabiting for four years – simply find themselves brought within the new regime automatically, without any real opportunity to consider, let alone exercise, an opt-out? If so, that may have unintended consequences for the very individuals the reform is said to protect.

By way of example, consider a situation in which the financially stronger party is also the more vulnerable. A woman may have brought the property into the relationship in her sole name and have the greater financial resources yet be in an abusive or controlling relationship. In those circumstances, she may face real difficulty in bringing the relationship to an end or securing her partner’s departure from the property. If the statutory regime applies automatically, she may, by the mere continuation of the relationship, find herself exposed to claims against assets that were previously regarded as entirely her own.

The position of couples who have already formalised their arrangements is particularly uncertain. Many will have taken advice and documented their intentions carefully as to ownership and financial provision in the event of separation. The proposed framework risks undermining that certainty by introducing a discretionary layer based on needs which may cut across what the parties have agreed. In place of a relatively settled position, parties may instead face an outcome dependent on a court’s assessment of fairness, with the attendant uncertainty, cost and scope for dispute that such an approach inevitably brings.

The two-year time limit may generate more disputes, not fewer

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 encourage parties to issue protective proceedings before meaningful attempts at resolution have taken place. By contrast, limitation is rarely an issue in TOLATA claims, allowing parties greater opportunity to resolve matters outside court.

The central difficulty: this is not a clean alternative to TOLATA

One of the most significant unanswered questions is how the proposed framework would interact with existing property law. At present, disputes about property ownership between separating cohabitants are resolved under TOLATA.

The Green Paper indicates that 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. Third-party TOLATA issues may also still arise within cohabitation proceedings.

In other words, TOLATA does not disappear. The proposed reform may reduce its routine use in some cases, but it would remain highly relevant in others. That creates a more fragmented, rather than more streamlined, system: one regime for divorce, one for qualifying cohabitants, and TOLATA for everyone else. It is far from obvious that this promotes simplicity or accessibility.

The common law marriage problem may get worse, not better

One of the drivers for reform is the widespread misconception that “common law marriage” already exists. The danger is that introducing automatic statutory rights for some cohabitants may entrench that misunderstanding rather than dispel it.

The result may not be greater clarity, but a new and more complicated public misconception: that cohabitation now carries something akin to marriage after a period of time, subject to exceptions, opt-outs and threshold tests that most people will not understand.

The Birketts view

The government’s policy objectives are easy to understand. It wants to improve protection for financially vulnerable cohabitants, particularly women and victim-survivors of domestic abuse, and to promote fair outcomes for children. Those are serious and legitimate aims.

However, the current proposal raises substantial practical and legal concerns. It risks creating a new discretionary regime alongside, rather than instead of, existing property law. It invites factual disputes about status, duration, children and opt-out validity. It gives the courts divorce-style remedial tools even while insisting that cohabitation remains legally distinct from marriage. It also weakens certainty for couples who have deliberately chosen not to marry and who have already structured their affairs accordingly.

For all those reasons, there is a real question whether the proposal, in its current form, would simplify the law for separating cohabitants or simply replace one form of complexity with another.

Whatever the outcome of the proposed reforms, Birketts’ specialist home ownership disputes team has extensive experience advising on cohabitee disputes. Our team is well placed to guide you through this evolving and complex area of law, whatever your circumstances.