Should unmarried partners gain financial rights on separation?

An analysis of financial autonomy, relationship-generated disadvantage and the proposed reform of cohabitation law in England and Wales

The legal consequences of an intimate relationship in England and Wales depend substantially upon whether the parties have married or entered a civil partnership. Marriage provides access to a statutory jurisdiction for redistributing property, income and pensions following separation. Unmarried partners generally retain the property rights they can establish through ownership, trusts and other private-law doctrines, however closely their lives and finances have become intertwined. This distinction has become increasingly consequential as cohabitation has developed into an established form of family life. The Ministry of Justice estimated in June 2026 that more than 3.5 million couples were living together without marriage or civil partnership.¹

The Government’s consultation, A fairer end to relationships, launched in June 2026, therefore addresses a significant question of distributive justice: whether the law should protect an unmarried partner whose economic position has deteriorated through decisions made for the benefit of a shared household. It proposes reform of financial remedies on divorce, a new statutory framework for cohabitants upon separation, and enhanced inheritance rights following the death of an unmarried partner. The consultation closed on 14 August 2026. Its proposals remain prospective; they have introduced no new financial entitlement as at November 2026.¹

The argument advanced here is that a carefully limited, presumptively applicable statutory remedy is justified where cohabitation has generated substantial financial interdependence or disadvantage, particularly through the care of children. Nevertheless, the Government’s preferred needs-based approach leaves an important aspect of the injustice unresolved. Immediate financial need and economic loss incurred for a relationship are related but analytically distinct. A partner may retain sufficient assets to meet current housing needs while having surrendered career progression, occupational pension provision and future earning capacity to support the other’s advancement. A coherent reform should provide a minimum standard of protection against hardship and an appropriately constrained remedy for demonstrable relationship-generated disadvantage. Such protection can respect the distinctive legal commitments of marriage without allowing the absence of a marriage certificate to obscure the material consequences of family decisions.

The significance of marital status in financial remedies

On divorce, sections 23–25 of the Matrimonial Causes Act 1973 confer broad powers to order financial provision and property adjustment, exercised through a structured consideration of the parties’ resources, obligations, needs, standard of living, ages, relationship duration and contributions. Section 25(2)(f) expressly includes contributions made by looking after the home or caring for the family. The court gives first consideration to the welfare of any minor child of the family. Financial autonomy remains relevant, but the statutory jurisdiction recognises that family prosperity may be accumulated through complementary economic and domestic roles.²

In White v White [2000] UKHL 54, the House of Lords rejected an approach that systematically privileged direct financial contributions over homemaking. Lord Nicholls’ insistence upon the absence of discrimination between the money-earner and the home-maker established a principle of substantive fairness in the matrimonial context. In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the House of Lords identified needs, compensation and sharing as overlapping rationales for financial relief. The McFarlane litigation illustrated the possible financial consequences of an agreed division of labour: one spouse had abandoned a promising professional career to care for the children while the other substantially advanced his earning capacity.³⁴

The scope of matrimonial sharing also requires precision. Standish v Standish [2025] UKSC 26 reaffirmed the distinction between matrimonial and non-matrimonial property, explaining that the sharing principle ordinarily operates upon wealth generated through the parties’ marital partnership. The existence of marital status consequently grants access to a flexible and powerful jurisdiction; it does not establish automatic equal division of everything either spouse owns. This qualification matters when considering whether cohabitants should be placed on the same footing: the matrimonial scheme itself reflects differentiated justifications for intervention.⁵

For unmarried partners, financial claims arise principally from general property law. The Trusts of Land and Appointment of Trustees Act 1996 permits applications concerning the exercise of trustees’ functions and the determination of interests in land. Yet the court must determine the parties’ legal and beneficial rights through the relevant proprietary doctrines; it possesses no free-standing power to redistribute assets because one partner has greater needs or has made substantial domestic contributions. This difference separates the adjudication of existing ownership from the creation of a fair post-relationship settlement.⁶

Property ownership, common intention and the limits of equitable protection

The tension between proprietary reasoning and family realities is apparent in Burns v Burns [1984] Ch 317. The claimant had lived with her partner for approximately nineteen years, raised their children and undertaken domestic work, yet the Court of Appeal found that her contributions had not established a beneficial interest in the home held in his sole name. The decision remains a powerful illustration of how a lengthy domestic partnership may produce responsibilities without proprietary entitlement. The claimant’s care supported the household, but trust law asked a different question: whether she had acquired an interest in the asset.⁷

In Lloyds Bank plc v Rosset [1991] 1 AC 107, the House of Lords emphasised common intention and detrimental reliance in claims to a share of property legally owned by one partner. Subsequent decisions have developed the analysis beyond the strictest readings of Rosset, but its central concern with proof of shared beneficial ownership remains important. Grant v Edwards [1986] Ch 638 demonstrates the capacity of equity to recognise an informal arrangement where an assurance concerning ownership is accompanied by conduct undertaken in reliance upon it. Such cases protect established expectations; success depends upon evidence of intention and reliance rather than the court’s overall assessment of the fairness of the relationship’s financial outcome.⁸⁹

Where the home is purchased in joint legal names, the starting position differs. Stack v Dowden [2007] UKHL 17 established a presumption of joint beneficial ownership that may be displaced by examination of the parties’ whole course of dealings. Jones v Kernott [2011] UKSC 53 confirmed the court’s capacity, in appropriate circumstances, to infer or impute changing intentions about the proportions held beneficially. The eventual 90:10 division in Jones reflected the parties’ financial arrangements after separation. These judgments introduced greater sensitivity to domestic arrangements, while retaining common intention as the organising concept. They cannot consistently compensate a sole-title claimant for years of unpaid childcare where the necessary basis for a proprietary share is absent.¹⁰¹¹

Curran v Collins [2015] EWCA Civ 404 reinforces the difficulty. Although the parties had maintained a relationship over several decades, their period of living together was considerably shorter, and the claimant failed to establish a beneficial interest in property and a business legally owned by her partner. The case illustrates both the evidential demands of common-intention claims and the danger of treating relationship duration as a substitute for proof of proprietary entitlement. Equity addresses some forms of informal economic cooperation effectively, but its categories remain imperfectly aligned with the financial vulnerability created by family life.¹²

Specific statutory provisions mitigate particular risks. A parent may seek child maintenance under the Child Support Act 1991, and Schedule 1 to the Children Act 1989 permits financial orders for the benefit of children, including housing provision in appropriate circumstances. The object of these mechanisms is support for the child; they do not comprehensively restore the carer’s diminished personal earning capacity or pension wealth. Housing supplied for a child’s minority may also be structured to revert to the providing parent. The residual vulnerability of the caregiving adult is thus a predictable consequence of dividing the regulation of the family among property, child-support and welfare jurisdictions.¹³

Unpaid care and relationship-generated economic disadvantage

Caregiving provides the strongest normative justification for reform because its economic effects extend beyond day-to-day household expenditure. A partner who reduces working hours, declines promotion or leaves a profession to raise children sacrifices earnings immediately and may experience a persistent reduction in human capital. Professional networks weaken, occupational pension contributions cease, and subsequent re-entry into employment may occur at a lower grade. Where the other partner remains in continuous employment, that person’s enhanced earning capacity may be partly attributable to the redistribution of domestic responsibilities within the household. The allocation of childcare therefore affects the accumulation of both tangible assets and future economic opportunities.

The rationale acknowledged in McFarlane has particular force outside marriage, even though the statutory jurisdiction in that case was matrimonial. It reveals a gap between measuring a person’s wealth at the date of separation and identifying the opportunity costs incurred in creating the family’s economic position. The Government’s accompanying family impact assessment expressly recognises that women are disproportionately likely to reduce employment or earnings in response to caring responsibilities, exposing them to greater financial insecurity when cohabitation ends. The question extends beyond gender: it concerns whichever partner has performed work that benefited the family while reducing their independent economic prospects.¹⁴

Children also have an independent interest in the stability of the post-separation household. In practice, support for a child and the financial security of that child’s primary carer are closely connected. A system that treats care as economically irrelevant may increase demands on social security, intensify housing insecurity and discourage an economically dependent partner from leaving an unsafe relationship. Nevertheless, these policy considerations require calibrated legal responses. An individual may reasonably choose cohabitation because they wish to preserve financial independence. A persuasive reform must distinguish ordinary differences in partners’ wealth from disadvantage incurred through mutually organised family life, whilst securing protection for children whose circumstances were determined by their parents’ choices.

From the Law Commission’s contribution-based model to the 2026 consultation

The absence of a comprehensive financial remedy for cohabitants has been examined for almost two decades. In Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007), the Law Commission recommended a statutory scheme for eligible cohabitants based upon qualifying contributions which had conferred a retained benefit on the other partner or produced an enduring economic disadvantage for the applicant. The proposed jurisdiction was deliberately separate from the financial consequences of divorce. It avoided a presumption of equal sharing and did not authorise redistribution simply because the applicants had lived together. Rather, the legal remedy would address a financial consequence sufficiently attributable to their relationship.¹⁵

The Commission’s reasoning was especially convincing in cases involving childcare. A partner’s unpaid domestic contribution can enable the other to accumulate assets and improve earning potential even where their shared home remains in one legal name. The proposed model sought to identify the economically significant contribution and fashion proportionate redress. Eligible couples without children would have had to satisfy a qualifying period, with a legislative choice anticipated within a range of two to five years; couples with a child together would not have faced the same minimum duration. The Commission also recommended a capacity to opt out, preserving autonomy through informed agreement.¹⁵

In 2022, the House of Commons Women and Equalities Committee recommended a scheme of financial remedies for separating cohabitants along the lines of the Law Commission’s proposals. Its report, The rights of cohabiting partners, drew attention to the persistence of the supposed ‘common-law marriage’ and to the specific disadvantages experienced by economically dependent partners. The Cohabitation Rights Bill [HL], introduced in June 2026 and considered at second reading in July, provides a further parliamentary route for considering reform; it is a private member’s bill distinct from the Government’s consultation and has yet to establish operative legal rights.¹⁶¹⁷

Against this history, the Government has made a significant conceptual choice. Its June 2026 consultation expressly considers the earlier compensation model but prefers financial needs as the organising principle for an award. It reasons that a compensation-based scheme could overlook hardship arising from disability or illness unrelated to the parties’ earlier decisions and could require expensive, retrospective examination of the relationship’s economic history. These objections are substantial. They identify genuine difficulties of proof, valuation and accessibility. Yet they do not establish that the law must choose exclusively between responding to present need and recognising demonstrable past sacrifice. The two objectives have different purposes and can be addressed within a properly bounded jurisdiction.¹

The proposed statutory regime on separation

The consultation envisages a default scheme for two adult partners in a committed, enduring family relationship. The suggested definition would extend beyond a requirement to prove shared ownership, with the court considering the reality of the relationship through factors such as living arrangements, finances, children and the parties’ mutual commitments. It would distinguish intimate partners from flatmates and other household members whose domestic cooperation lacks the relevant family character. Eligibility would arise after three years’ cohabitation where there is no child of the family, or without any minimum qualifying period where there is such a child. These are proposals on which the consultation sought views, rather than thresholds already enacted.¹

Once eligible, a former partner could seek an order within a proposed two-year period following separation. Legal ownership would provide the starting point, but the court could intervene to meet defined financial needs. The proposed approach prioritises children’s requirements and then assesses the adults’ housing, capital, income and pension needs by reference to their respective resources. Consideration of the parties’ conduct during the relationship would include the economic consequences of caring responsibilities. The Government envisages a restricted conception of need, excluding discretionary or luxury expenditure and seeking a transition towards independence. The matrimonial sharing principle would be excluded, so eligibility would not create a presumption of an equal division of assets.¹

Potential remedies include lump sums, property adjustment and pension sharing. Continuing maintenance would be exceptional, limited to short, fixed, non-extendable periods rather than an open-ended obligation. The consultation also proposes that an award to a cohabitant should never exceed the award obtainable on divorce in otherwise equivalent circumstances. This ceiling is intelligible as a safeguard against the anomalous elevation of cohabitation above marriage, although differences in the substantive tests mean that exact comparisons may themselves generate argument. A clear distinction between a claim for the claimant’s own needs and an order made for a child’s benefit would remain essential.¹

The Government’s proposed remedy is consequently more significant than an extension of property trusts, yet materially narrower than the Matrimonial Causes Act 1973 jurisdiction. It would confer a statutory claim arising from family status and need, with power to alter the distribution of assets despite an absence of common intention as to beneficial ownership. That is a principled departure from the approach exemplified by Burns, and should be understood as such. The critical questions concern the breadth of qualifying relationships, the circumstances in which the claim crystallises, and whether the proposed measure of relief corresponds to the economic wrong which makes intervention defensible.

Should financial need or economic disadvantage determine the award?

Needs-based provision has considerable strengths. A claimant may be financially vulnerable because of disability, domestic abuse, illness or responsibility for a child, even where those circumstances are difficult to attribute to a particular decision made during the relationship. Relief conditioned upon proving precise historical contributions could leave a person facing immediate homelessness without an effective remedy. Assessing present housing and subsistence requirements is familiar to family courts and offers a more direct route to stabilising a household at the point of separation. There is therefore a persuasive case for making needs the first and most accessible inquiry.

The weakness emerges when a person’s sacrifice has produced lasting economic inequality without immediate destitution. Consider a couple who agree that one partner will interrupt a well-paid career for ten years to care for their children, allowing the other to build a successful business. On separation, the caregiver may have modest inherited savings sufficient to obtain housing and basic income. Under a strictly needs-based model, those savings could reduce or eliminate the award despite the loss of earnings, career progression and pension accrual arising from the parties’ agreed division of labour. The business owner could retain the financial benefit of that arrangement. The existence of an independent safety net would, paradoxically, diminish the law’s recognition of the contribution that made the other’s prosperity possible.

This example illustrates the distinction between distributive need and relationship-generated disadvantage. The former asks what resources a person requires to maintain an acceptable position after separation; the latter asks whether the relationship altered the parties’ financial positions in a way that justifies redress. The principles may converge where a claimant faces poverty, but they can diverge where the disadvantaged partner has some remaining capital or a capacity to support themselves at a substantially reduced standard over a lifetime. The pension consequences are particularly significant because retirement inequality may become acute long after the claim is decided. A court empowered to share pensions only by reference to immediately apparent needs could undervalue the long-term cost of unpaid care.

The Law Commission’s 2007 analysis provided a more precise conceptual basis for recognising this harm. At the same time, its contribution-based test may pose difficult evidential questions: whether a promotion would have occurred, how far an earnings differential was caused by childcare, and how to distinguish a relationship benefit from ordinary fluctuations in commercial fortune. Neither an elaborate calculation of hypothetical lifetime income nor an unstructured redistribution of wealth would be satisfactory. A defensible middle course would establish a needs-based floor and permit a separate, carefully limited compensatory adjustment where the applicant proves a substantial and enduring disadvantage caused by the couple’s organisation of their family life. Relevant evidence might include contemporaneous employment records, an agreed pattern of care, pension contributions, the length of interruption, and the other partner’s financial position. Judicial discretion could address uncertainty conservatively, applying proportionality and realistic limits rather than assuming an exact counterfactual career trajectory.

Such a supplementary head of relief would also require an anti-duplication rule. Compensation for lost pension accrual should take account of any pension-sharing award, and a property adjustment already made to satisfy long-term need should inform the remaining assessment. Resource constraints matter: an impecunious respondent cannot fund an award beyond the assets and income available. The objective is fair recognition of a demonstrable economic consequence, with attention to ability to pay and the children’s continuing welfare. This approach would preserve a meaningful distinction from marital sharing while answering a central criticism of the proposed legislation: that a model designed chiefly to address poverty may provide only partial justice to a partner whose contribution generated another person’s wealth.

Automatic protection, individual autonomy and the proposed opt-out

The most difficult objection to statutory cohabitation rights rests upon personal autonomy. Marriage and civil partnership involve deliberate legal acts. Cohabitation may instead reflect a commitment to intimacy without a wish to assume the comprehensive financial responsibilities of marriage. Making obligations arise automatically after a specified period risks attributing legal intentions that the parties have never expressed. This objection has particular relevance for older partners seeking to preserve assets for children from previous relationships, and for couples maintaining genuinely independent finances throughout their time together.

Nevertheless, a requirement that cohabitants formally opt in to protection would leave many of the most vulnerable claimants exposed. Financial dependency often develops gradually as a couple makes decisions about housing, employment and care. The prospect of separation may be remote, the legal issues poorly understood, and the economically stronger partner may control access to information or legal advice. The misconception that cohabitation creates a ‘common-law marriage’ compounds the problem. The objective of a default regime is therefore to place a limited safety net beneath relationships which satisfy defined criteria, while enabling an informed decision to disapply it.

The Government proposes that qualifying couples should be able to opt out through a valid contract executed as a deed. The safeguards under consideration require disclosure of material financial circumstances and separate independent legal advice, neither of which could be waived. Any variation would meet the same conditions. These requirements are more meaningful than a signature alone: they address the informational asymmetry that may accompany economic dependence, and create evidence that the choice was deliberate. The Government also proposes that opting out should leave intact claims under ordinary property law and the distinct statutory rights of children to financial support.¹

The importance of informed choice is reflected, in a different statutory context, in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. The Supreme Court gave substantial weight to an agreement freely entered into with an appreciation of its implications, subject to the overriding concern that it would be unfair to hold the parties to it. The judgment does not determine the validity of an agreement under a future cohabitation statute, but it identifies the tension between private ordering and safeguards against unfair outcomes. A cohabitation regime would require its own legislative rules, designed for couples who may have had little reason to consider legal formalities at the beginning of the relationship.¹⁸

Formal consent can also conceal significant inequality in bargaining power. A financially dependent partner may be presented with an opt-out as the price of continuing a relationship or obtaining access to a shared home. Independent advice supplies information, although it cannot invariably remove emotional pressure or economic coercion. The statutory framework should therefore preserve a route for challenging opt-outs obtained through undue influence, misrepresentation or coercive conduct and consider effective measures to ensure that legal advice is genuinely accessible. The cost of advice is central: protection that can be relinquished only through an expensive formal process may deter legitimate autonomy, while advice available only to the affluent will leave vulnerable people unable to make an effective choice. Public guidance, clear standard-form information and proportionate financial assistance should accompany any enactment.

The strongest defence of automatic protection lies in its limited scope. A presumption of equal property sharing would impose substantial partnership obligations solely from shared residence. A narrowly defined entitlement responding to children’s needs, financial dependency and proven relationship-generated disadvantage more closely resembles a protective rule against foreseeable harm. It respects the parties’ freedom to organise their affairs while recognising that decisions taken jointly may produce costs borne disproportionately by one person.

Eligibility, children and the timing of claims

A three-year qualifying period for childless couples gives the proposed scheme a measure of predictability. It prevents short-lived relationships from generating extensive litigation over the redistribution of personal wealth. Yet duration is an imperfect proxy for interdependence. One couple may acquire a home together and reorganise their employment within eighteen months; another may live together for ten years with separate finances and little mutual reliance. A court assessing the substance of the relationship can accommodate such differences only within the limits set by the statutory threshold. The decisive justification for a minimum period is legal certainty and administrability, rather than any proposition that economic vulnerability begins on a particular anniversary.

Removing the minimum period where a child of the family is involved is more persuasive. The child’s needs can arise immediately, and a parent may suffer substantial earnings disruption during pregnancy or shortly after birth. A short relationship may consequently produce consequences extending over many years. The qualifying rule should nevertheless be accompanied by clear guidance concerning blended families, parental responsibilities and the relevance of children who reside with only one of the adults. The family-law framework must also accommodate people whose arrangements are less conventional than continuous residence under one roof, including periods of necessary absence arising from work, illness or safety.

The proposed two-year limitation period poses a separate challenge. Finality benefits both parties, particularly where property has been sold, a new relationship formed or financial affairs reorganised. Yet vulnerable applicants may require considerable time to obtain documents, secure safe accommodation, seek advice or appreciate the existence of a remedy. The inequity is conspicuous where economic abuse has restricted access to financial information. In Wyatt v Vince [2015] UKSC 14, the Supreme Court confirmed that a financial remedy application arising from divorce could proceed despite the passage of many years, while recognising the significance of delay to the ultimate merits. The case arises under a fundamentally different jurisdiction, but it highlights the choice inherent in placing a strict two-year bar upon cohabitants.¹⁹

A proportionate reform would retain a general limitation period and give the court a defined power to extend it for compelling reasons, including concealment of assets, incapacity, domestic abuse or reasonable ignorance of material facts. Requirements of promptness and prejudice to the respondent could prevent routine extensions. Such a discretion would protect legitimate expectations without converting a procedural deadline into an instrument of substantive injustice. Similarly, a short fixed term for maintenance may encourage independence, but the definition of exceptional circumstances should accommodate serious disability and the practical difficulties of earning while caring for children with intensive needs.

Death, intestacy and the limits of the existing law

The financial position on death reveals an additional weakness in the law’s reliance on formal relationship status. Under section 46 of the Administration of Estates Act 1925, the statutory order of entitlement on intestacy gives priority to specified relatives, including a surviving spouse or civil partner, but confers no automatic beneficial share upon an unmarried surviving partner. A person who has cohabited for many years may therefore inherit nothing under the intestacy rules if the deceased leaves no valid will, regardless of the surviving partner’s contribution to their shared life.²⁰

The Inheritance (Provision for Family and Dependants) Act 1975 offers an important but conditional means of relief. Section 1 permits an applicant who lived with the deceased in the same household as a spouse or civil partner throughout the two years immediately preceding death to seek reasonable financial provision. A person maintained by the deceased may also qualify through the separate dependency category. For a cohabitant, the standard of reasonable provision is generally limited to maintenance; the statutory approach to a surviving spouse or civil partner is broader. The applicant must pursue a claim against the estate, with the associated evidential, emotional and financial burdens.²¹

In Ilott v The Blue Cross [2017] UKSC 17, a case concerning an adult daughter’s claim against her late mother’s estate, the Supreme Court emphasised the structure of the 1975 Act and the importance of the maintenance standard applicable outside spousal claims. Ilott concerned a different category of applicant and should be used as an explanation of statutory principle rather than as a factual parallel with a bereaved cohabitant. More directly, Matyas v Daniel and others [2026] EWHC 1368 (Ch) illustrates the factual difficulty of establishing the requisite cohabiting relationship for a 1975 Act claim. The claimant’s case failed on several independent grounds, including the failure to prove the statutory relationship conditions. The judgment records that prolonged litigation had substantially depleted an estate which would otherwise have exceeded £1 million in value, with the claimant carrying considerable costs liabilities. This is an unusually stark example of the practical consequences of uncertain legal status and contested proof. Importantly, the deceased in Matyas had made a will; the decision therefore demonstrates the limits and evidential demands of existing relief rather than the effect that proposed intestacy reform would have had on those particular facts.²²²³

The 2026 consultation proposes that a qualifying cohabitant should receive the same entitlement as a spouse or civil partner under the intestacy rules and corresponding priority to obtain letters of administration. For succession, the Government favours defining the relationship by reference to living together as spouses or civil partners, a formulation more closely aligned with the 1975 Act than the proposed ‘enduring family relationship’ test on separation. The extension would apply only where the deceased died intestate and was neither married nor in a civil partnership immediately before death. The minimum qualifying period remains under consultation: the Law Commission had suggested five years without a child and two years with a child in its 2011 report, but the Government has sought views on whether those periods remain appropriate. It would therefore be premature to describe either threshold as enacted or definitively chosen for the 2026 reform.¹²⁴

This proposed spouse-equivalent entitlement on intestacy sits uneasily, at first sight, beside the much narrower needs-led regime on separation. The difference can nevertheless be defended by reference to the legal purposes involved. Separation determines what living partners may demand from one another while they retain independent economic futures. Intestacy supplies a presumptive distribution of a deceased person’s estate where they have made no valid testamentary choice. The latter is a rule of succession, designed to approximate likely intentions and reduce procedural disputes, rather than a judgment about how much economic compensation the survivor has earned.

The succession proposal also creates competing interests that require careful evaluation. In a blended family, granting a surviving cohabitant a spouse-equivalent share may reduce the assets passing to the deceased’s children from an earlier relationship. A presumption that long-term partners intend to benefit one another is plausible, but becomes less certain where both have adult children and have deliberately retained separate property. Clear qualification rules, public awareness of the effect of intestacy and accessible will-making are therefore essential. The continuing power to make a valid will provides an important means of expressing different preferences, subject to potential statutory family-provision claims. The proposed intestacy changes should likewise be distinguished from tax treatment and occupational pension entitlements on death, neither of which follows automatically from a change to the intestacy rules.

Scotland as a comparative model

Scottish legislation provides a useful comparison because it demonstrates that a remedy for cohabitants can exist independently of matrimonial financial relief. Under section 28 of the Family Law (Scotland) Act 2006, a court may order payment of a capital sum after cohabitation ends. The court considers whether one cohabitant derived an economic advantage from contributions made by the other, whether an applicant suffered economic disadvantage in the interests of the other or a relevant child, and the sharing of the economic burden of caring for a child. The language directs attention to the consequences of the parties’ relationship rather than adopting general matrimonial sharing. The present Scottish claim ordinarily must be brought within one year of separation.²⁵

In Gow v Grant [2012] UKSC 29, the Supreme Court upheld a capital award of £39,500 to a former cohabitant who had sold her home during the relationship and suffered economic disadvantage. The judgment emphasised a practical, broad assessment of economic advantage and disadvantage. It demonstrates the feasibility of judicial redress for a contribution whose value cannot always be established through strict accounting. Equally, the case does not suggest that every cohabiting relationship generates a right to an equal share of the other partner’s wealth: the statutory factors and the particular financial consequences of the relationship remain decisive.²⁶

The Scottish experience also cautions against treating a compensatory scheme as complete or self-executing. The Scottish Law Commission’s Report on Cohabitation (2022) recommended reform of the existing framework, including clarification of its purposes and greater flexibility concerning the time limit. The Scottish Government subsequently consulted on further changes, including a more express treatment of short-term hardship alongside economic gains, losses and the burdens of childcare. These developments show that distinguishing contribution-based redress from needs-led protection need not entail choosing only one objective. They also underline the importance of effective procedures: a well-designed substantive right has limited value if its claimant cannot identify, finance or bring the claim in time.²⁷²⁸

Transplanting section 28 verbatim into England and Wales would carry risks. The two jurisdictions differ in their property doctrines, existing family remedies and procedural organisation. Nevertheless, the comparative lesson is substantial. A narrow statutory financial claim can recognise relationship-generated disadvantage while retaining a distinction between cohabitation and marriage. The task for English reform is to combine that principle with accessible provision for current need and adequate protection for dependent children. The Scottish experience supplies evidence of practicability, alongside a warning about legal complexity and rigid limitation rules.

Financial autonomy, legal certainty and an appropriate model of reform

Equality of financial rights may be understood in two different ways. Formal parity would apply the same jurisdiction to cohabitants as to spouses, giving the courts broadly equivalent powers and principles for redistributing their assets. Substantive protection would instead recognise that different forms of intimate commitment can expose people to similar financial risks and provide remedies targeted at those risks. The first approach gives insufficient weight to the deliberate legal significance of marriage and the differing expectations of some unmarried couples. The second allows the law to prevent substantial hardship and unjust retention of relationship-generated benefits while leaving genuinely independent property arrangements substantially intact.

The Government’s proposed framework is closest to the second approach, but its design would benefit from three refinements. First, the court should have an explicit, limited power to address established relationship-generated economic disadvantage in addition to immediate financial need. The remedy would arise only where the applicant demonstrates a material and enduring loss or corresponding retained benefit connected to the couple’s arrangements. Financial equality as an independent objective would remain a feature of matrimonial law. Secondly, the proposed opt-out should be effective only where informed consent can be established through meaningful disclosure, separate advice and protection against coercion. The implementation of those safeguards requires affordable access to legal information and representation. Thirdly, limitation and eligibility rules should secure predictable boundaries without excluding claimants whose economic dependence, caring responsibilities or vulnerability explain the difficulty of bringing proceedings promptly.

Administrative feasibility must inform these recommendations. A fully discretionary jurisdiction extending to every cohabiting relationship could generate uncertainty, expensive disclosure and disproportionate litigation. The proposed three-year threshold, immediate recognition where children are involved and a narrow remedy provide useful limiting devices. Published guidance and clear examples would assist couples to make informed decisions about cohabitation agreements, title arrangements and wills. Mediation and other forms of dispute resolution may reduce conflict, but should be supported by enforceable disclosure obligations and suitable exceptions where abuse or unequal bargaining power makes consensual negotiation inappropriate.

Recognition also requires clarity about the limits of the category being protected. A romantic ‘enduring family relationship’ leaves outside the proposed scheme other economically interdependent households, including adult siblings or relatives who share lifelong caring responsibilities. Such arrangements raise serious questions of justice, especially on death, but they entail different risks and expectations from those associated with a couple’s relationship. Their exclusion should be acknowledged as a conscious boundary of this reform rather than evidence that financial dependence is unique to romantic partners. Future assessment of the treatment of unpaid family carers may be warranted within a distinct legislative framework.

Conclusion

Unmarried couples should acquire defined financial rights where their relationship has produced substantial dependency, unpaid caring obligations or enduring economic disadvantage. The existing reliance upon property trusts provides valuable protection for interests which can be established through common intention and reliance, but cases such as Burns expose its inability to address every inequity arising from a shared domestic life. The framework governing divorce recognises unpaid care as a contribution to a family’s economic welfare. A principled law of cohabitation should similarly recognise its material consequences, without treating cohabitation and marriage as legally identical.

The Government’s 2026 proposals represent an important opportunity to close that gap. Their default protection, child-sensitive eligibility and carefully regulated opt-out are defensible responses to financial vulnerability and the limitations of private bargaining. Their reliance upon needs as the sole organising principle is less convincing. A person can be financially self-supporting today and still have sustained a substantial, permanent economic loss through family decisions that enriched the other partner. A limited power to compensate demonstrable relationship-generated disadvantage would produce a more complete account of fairness. On death, wider intestacy protection is likewise justified in principle, provided that the competing interests of children and the deceased’s freedom to leave a will remain central to the design.

The soundest reform therefore lies between automatic matrimonial parity and continued dependence upon the accidental distribution of legal title. It would establish rights sufficiently robust to protect the economically vulnerable, sufficiently precise to constrain litigation, and sufficiently flexible to recognise the diverse ways in which families allocate work, care and wealth. In this context, respect for autonomy includes protecting the ability to make genuine choices; it also requires the law to take seriously the economic consequences when a couple makes those choices together.

Primary authorities and official sources

1. Ministry of Justice, A fairer end to relationships: consultation document (June 2026), especially Parts 1–3 and questions 29–47. The consultation closed in August 2026; the provisions described in this essay remain proposals.
2. Matrimonial Causes Act 1973, s 25; see also ss 23–24 and 24B concerning financial orders and pensions.
3. White v White [2000] UKHL 54, [2001] 1 AC 596.
4. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618.
5. Standish v Standish [2025] UKSC 26.
6. Trusts of Land and Appointment of Trustees Act 1996, s 14 and s 15.
7. Burns v Burns [1983] EWCA Civ 4, [1984] Ch 317.
8. Lloyds Bank plc v Rosset [1990] UKHL 14, [1991] 1 AC 107.
9. Grant v Edwards [1986] EWCA Civ 4, [1986] Ch 638.
10. Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432.
11. Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776.
12. Curran v Collins [2015] EWCA Civ 404.
13. Children Act 1989, Sch 1; Child Support Act 1991.
14. Ministry of Justice, The family test: a fairer end to relationships (June 2026).
15. Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, Cm 7182, 2007); see also the official executive summary.
16. House of Commons Women and Equalities Committee, The rights of cohabiting partners (Second Report of Session 2022–23, HC 92, 2022).
17. UK Parliament, Cohabitation Rights Bill [HL] (2026), bill information and parliamentary progress; House of Lords debate, 17 July 2026.
18. Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534.
19. Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228.
20. Administration of Estates Act 1925, s 46 (intestacy).
21. Inheritance (Provision for Family and Dependants) Act 1975, s 1, especially s 1(1)(ba), s 1(1)(e) and the distinction in s 1(2).
22. Ilott v The Blue Cross and others [2017] UKSC 17, [2018] AC 545.
23. Matyas v Daniel and others [2026] EWHC 1368 (Ch) (judgment text reproduced online).
24. Law Commission, Intestacy and Family Provision Claims on Death (Law Com No 331, 2011).
25. Family Law (Scotland) Act 2006, s 28.
26. Gow v Grant [2012] UKSC 29, 2013 SC (UKSC) 1.
27. Scottish Law Commission, Report on Cohabitation (Scot Law Com No 261, 2022).
28. Scottish Government, Consultation on family law (2025–26), proposals relating to cohabitation.