The Ministry of Justice has today released its long-anticipated consultation paper on family law and cohabitation reform. As a practitioner whose daily life is spent dealing with the fallout from broken relationships and disputed estates, my immediate reaction is enthusiastic welcome for the broad spirit of the proposed reform but tempered by anxiety driven by some of the detail.
It must be made clear that these are my initial, off-the-cuff reflections on the day of publication. My thinking is still in development, and these preliminary observations may not reflect my settled views once I have had further time to reflect. However, as the government attempts to implement what it calls “some of the biggest reforms to family law in decades”, it is important that those of us who are steeped in practical experience of the existing legal framework contribute our thoughts to the debate.
Whilst the consultation also covers financial remedies on divorce, this post focuses exclusively on the proposed changes to cohabitation rights in life and on death and their intersection with the existing regimes under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”) and applicable to claims under the Trusts of Land and Appointment of Trustees Act 1996 (“TLATA”).
The government is attempting to construct a coherent framework. However, that intent is undermined by significant tensions in the suggested reforms – consisting of contradictions internal to the proposals, and external conflicts with our existing statutory and common law regimes.
- Financial Provision on Separation: The Proposed Framework
The government proposes an automatic, opt-out statutory framework for eligible cohabiting couples who separate. To preserve the distinct status of marriage, this framework is designed to be narrower and less generous than the regime available to divorcing spouses. Whilst the policy aim of protecting vulnerable primary caregivers is noble, and one I fully endorse, the suggested execution raises a number of concerns.
The Age 18 Floor: An Unfortunate Gap
The consultation proposes that the minimum age for eligibility under the cohabitation framework should be 18, explicitly drawing parity with the legal age of marriage. This is an arbitrary and potentially damaging restriction, in my view.
Whilst marriage is a formal legal contract requiring state-enforced age minimums to protect young people, cohabitation is a de facto state of affairs. Consider a 17-year-old individual who cohabits and has a child with an older partner. Under these proposals, that 17-year-old would be entirely ineligible for any statutory needs-based provision upon separation. They would be forced to rely on Schedule 1 to the Children Act 1989, which the government itself admits is structurally limited because it provides financial orders solely for the benefit of the child and leaves the primary caregiver without direct independent support, or potentially a TLATA claim. By excluding under-18s, the framework fails to protect some of the most vulnerable young parents in our society.
Eligibility Periods: Three Years vs. Two Years vs. Five Years
The eligibility criteria proposed introduce a disparity in qualifying periods across the proposed financial provision on separation and suggested intestacy regimes, and the existing framework under the 1975 Act.
For couples without children, the government proposes a three-year minimum duration period of living together before financial provision on separation can be accessed.
This clashes with the established regime under the 1975 Act, where an unmarried partner has standing to claim against a deceased’s estate if they cohabited for a continuous period of two years immediately preceding the death.
This creates a three-tier system across separation and death for couples without children:
- Two years for a 1975 Act claim on death.
- Three years for a statutory needs-based claim upon separation in life.
- Five years for automatic spousal-equivalent rights on intestacy (discussed below).
For couples with children, the proposed eligibility periods are:
- Immediate standing for a 1975 Act claim on death (a change from the existing two-year period – discussed below).
- Immediate standing for a statutory needs-based claim upon separation in life.
- Two years for automatic spousal-equivalent rights on intestacy.
If a childless couple lives together for two and a half years and then splits, the economically weaker partner has no rights under the proposed separation framework. Yet, if one partner dies at that juncture, the survivor has standing to bring a claim under the 1975 Act.
I can see that a conceptually sound case can be made for this disparity. The 1975 Act operates where death prematurely cuts short a relationship that, in most cases, would have otherwise endured and therefore a shorter qualifying period of cohabitation can be justified, as compared with financial provision on separation.
Moreover, the 1975 Act serves as a discretionary safety net, and standing does not confer an automatic windfall; any award is subject to the rigorous judicial balancing exercise of the Section 3 factors, weighing the survivor’s needs against the competing claims of other beneficiaries and children.
Automatic inheritance under the intestacy rules, however, is a different beast for the reasons touched on below. If the government proceeds with the proposal to treat cohabitation as a spousal-equivalent status for intestacy purposes, I agree that this should be reserved for only well-established relationships, given the potential for this to disinherit or drastically reduce the rights of children as well as the issue of predatory cohabitation commented on below.
However, the justification for the differing time limits is not articulated as fully as it could be in the consultation. Arguably, this approach introduces complexity that undermines the government’s stated principle of providing a “clear and accessible framework” that reduces public confusion.
Stripping Out “Discretionary Needs”: An Unwarranted Restriction
Under the proposed separation model, the court’s focus would be restricted to a narrow, “needs-led” framework that explicitly excludes “discretionary needs” or lifestyle comforts above absolute necessities. The government frames this as a principled distinction from the more generous spousal standard on divorce.
In my view, this is an unattractive proposal that ignores decades of carefully calibrated jurisprudence under the 1975 Act and risks introducing an unwarranted disconnect between the approach following separation and on death.
The 1975 Act itself explicitly distinguishes between the standard of provision for spouses and other categories of claimant on death:
- The Spousal Standard (Section 1(2)(a)): Surviving spouses and civil partners are entitled to a higher, more generous standard of financial provision, assessed “whether or not that provision is required for his or her maintenance.”
- The Maintenance Standard (Section 1(2)(b)): All other applicants, including cohabitants under Section 1(1A), are strictly limited to “such financial provision as it would be reasonable… to receive for his maintenance.”
Notwithstanding the distinction between provision for spouses and other claimants under the 1975 Act, it is now well settled, and endorsed at the highest level by the Supreme Court in Ilott v The Blue Cross & Ors[2017] UKSC 17, that an applicant’s maintenance needs are evaluated on a case-by-case basis and are not limited to provision at a subsistence or bare necessity level.
By capping cohabitants’ claims on separation strictly at basic necessities, the government risks leaving long-term cohabitants who may have sacrificed their independent earning capacities with sudden, dramatic drops in their standard of living.
In my view, conferring a broad discretion on the court to provide for needs at the standard appropriate on the particular facts of the case, in parity with the approach under the 1975 Act as well as on divorce, is much the preferable approach. Judges exercising existing jurisdiction to make financial provision on divorce or under the 1975 Act on death, are well accustomed to assessing and calibrating needs in the context of the standard of living in the relationship, and against other considerations such as the scale of the resources, or the claims of other parties.
- The TLATA Paradox: A Logical Inconsistency
The consultation paper states:
“Under the proposed model, the court would begin from the position that each person keeps what they legally own. The court would only depart from this where it is necessary to meet an individual’s defined needs.”
It then asserts that the government “does not expect that qualifying cohabitants would make applications under TLATA 1996“.
These statements appear to be in conflict. If the starting point of the asset division is that each person keeps what they own, the court must logically first determine any dispute as to the underlying beneficial ownership of the assets.
A claimant’s established beneficial interest under trust law could easily exceed what the court deems to be their narrow, non-discretionary “needs.” It therefore appears unlikely that the proposed reforms will entirely obviate the need for TLATA claims.
- Cohabitation on Death: Intestacy and Blended Families
Turning to Part 3 of the consultation, the government proposes giving qualifying cohabitants (who meet a five-year threshold, or a two-year threshold if they have a shared child) the same automatic inheritance rights as a surviving spouse under the intestacy rules.
This is the area where I am presently least settled in my thinking. However, treating cohabitation as automatically equivalent to marriage on an intestacy causes me concern for two primary reasons: the disinheritance of minor children and the evidentiary issue of proving status.
Blended families and loss of inheritance rights
Under current rules, if a person dies married with children, the surviving spouse takes the personal chattels, a fixed net sum (currently £322,000), and half of the remaining residue, while the children take the other half. If the estate is modest, the spouse’s statutory legacy frequently absorbs the whole estate, leaving the children with nothing.
If we prioritise cohabitants in the same way, we will inevitably disinherit or substantially reduce the inheritance rights of a vast number of children. The circumstances of minor children from prior relationships are of particular concern. The government suggests that these disinherited children can simply bring a claim under the 1975 Act.
I am troubled by this proposal. A minor child from a prior relationship will typically be in a far worse position to launch complex and expensive litigation against a surviving partner who inherits on intestacy, as compared with a cohabitant contemplating a claim under the 1975 Act. Shifting the burden of litigation onto the children flies in the face of the government’s first guiding principle: “Prioritising fair outcomes for children”.
Evidentiary considerations and “predatory cohabitation”
Every other status recognised by the intestacy rules is (in the vast majority of cases) instantly and indisputably provable by the production of marriage, birth or adoption records, or DNA testing in the case of blood relationships.
Cohabitation, by contrast, is often a fluid and fact-sensitive state of affairs. The government proposes to address this problem by introducing different qualitative definitions of a ‘cohabitant’ – an ‘enduring family relationship’ for separation, but a stricter ‘marriage-equivalence’ test for death, citing the need for certainty in succession rights. I am unconvinced by this proposal. The difference between these definitions appears to me very fine indeed.
As the case law under the 1975 Act (which has a marriage-equivalence test) shows, relationships vary in multifarious ways. Unpacking whether an unmarried couple was truly living in the same household “as a married couple” requires a holistic, multi-factorial review of the arrangement between them.
Enacting automatic intestacy rights will trigger contests over whether a putative partner actually hit the five-year cohabitation milestone, or was merely dating but not cohabiting with the deceased, or was residing with them in the capacity of a lodger or a companion of other description. We already see these sorts of debates in 1975 Act claims.
The topic of predatory marriage has also garnered much focus in recent years. The scope for abuse if the qualifying period is too short is alluded to in the report, although it is not clear if the government specifically has the concept of predatory relationships for financial gain in mind. Whilst the five-year qualification requirement may make it difficult for unscrupulous individuals to acquire inheritance rights by predatory cohabitation, the potential for such individuals to embed themselves in a vulnerable person’s home to claim automatic cohabitee rights upon an intestate death is perhaps worth further reflection.
- A Sensible 1975 Act Reform
Lest I sound entirely obstructionist, there is one proposal in Part 3 that is genuinely sensible and progressive, that I have flagged above: removing the two-year qualification period for I(PFD)A 1975 claims where the cohabiting couple shared a child.
Under current law, if an unmarried couple has a child together and one partner dies suddenly after, say, 18 months of cohabitation, the surviving primary caregiver has no automatic standing to claim as a cohabitant under the 1975 Act, although they may be able to establish standing on the alternative ground that they were “maintained” by the deceased immediately before the death.
Abolishing the two-year waiting period for parents under the 1975 Act is a welcome proposal that directly protects the financial stability of the surviving family unit, without disrupting the wider law of succession.
Conclusion
Notwithstanding the issues identified above, the government’s consultation paper is driven by an admirable desire to protect women and children from financial hardship when relationships dissolve, whether on divorce or death.
A truly cohesive regime cannot be built in analytical silos. Hopefully, the consultation process will iron out some of these issues and lead to a workable framework that balances modern familial realities with our existing hard-edged property and intestacy principles.
