The government’s proposals to reform the legal position of cohabiting couples could represent a significant change for families in England and Wales. In its response to the Ministry of Justice consultation A fairer end to relationships, STEP has welcomed the principle of greater protection for people in long-term cohabiting relationships, while calling for greater clarity and safeguards to avoid unintended consequences.

STEP’s response focuses on the proposed reforms to separation and intestacy, reflecting its expertise in taxation, estate planning and related structures. Our press release about the consultation focuses on the key recommendations from our response, while this blog goes into more depth to support practitioners wishing to understand the details of our position.

Striking the right balance

STEP supports the objective of protecting vulnerable people, particularly those who may be financially disadvantaged following the end of a long-term relationship. However, it cautions that the reforms could increase uncertainty and litigation if the qualifying criteria are not sufficiently clear.

A central issue is the definition of a ‘qualifying cohabitant’. STEP recommends that this should be as clear and objective as possible, while recognising the difficulties of capturing the diversity of modern relationships. It also suggests that the definition should accommodate circumstances where couples temporarily live apart, for example because one partner relocates for work or spends time in care.

STEP also believes that the reforms should preserve a clear distinction between cohabitation, marriage and civil partnership. Marriage and civil partnership involve a conscious legal decision, whereas qualifying cohabitant status would arise automatically once prescribed criteria are met. Couples who do not marry nevertheless have other ways to provide certainty for one another, including wills, changing asset ownership and entering into cohabitation agreements.

How long should couples have to live together?

The consultation proposes a three-year minimum duration for qualifying cohabitation. STEP considers this too short and suggests a period of seven to ten years where couples do not have children together.

The concern is that three years may create legal consequences for couples who have not necessarily made a long-term commitment. It could also produce unusual incentives, including couples deliberately avoiding the qualifying threshold or advisors having to alert clients as they approach it.

Where a couple has a child together, STEP considers that a shorter period could be appropriate, suggesting a possible threshold of three to five years.

Intestacy: protecting partners and children

STEP supports giving cohabitants greater protection where their partner dies without a will, but does not support simply giving qualifying cohabitants exactly the same intestacy rights as spouses or civil partners.

Instead, it proposes a framework that takes account of whether the deceased had children and whether those children were also children of the surviving cohabitant. This is intended to provide protection for the surviving partner while avoiding a situation in which children from an earlier relationship could have their inheritance significantly reduced simply because their parent had subsequently lived with a new partner.

STEP also highlights the importance of wills. Unlike marriage or civil partnership, becoming a qualifying cohabitant should not affect an existing will.

Practical challenges

There are significant practical questions about how qualifying cohabitant status would be established. Unlike marriage or civil partnership, there is unlikely to be a single formal record proving that the statutory criteria have been met. This could create difficulties for personal representatives where family members dispute whether a qualifying relationship existed.

STEP therefore recommends clear evidential requirements, potentially including statutory declarations or prescribed forms of evidence.

The response also calls for careful consideration of cross-border cases and taxation. International families may face additional uncertainty where UK cohabitation rights interact with foreign succession laws or relationships recognised differently overseas. STEP recommends a separate consultation on the tax treatment of qualifying cohabitants.

STEP recommendations

STEP is supportive in principle of reform, but believes the framework needs further refinement before implementation. Our key recommendations are to introduce a longer minimum duration, provide a clear and unambiguous definition of qualifying cohabitation and preserve the legal distinction between marriage, civil partnership and cohabitation.

Looking ahead

For practitioners, the proposals underline the continued importance of proactive estate planning. Wills, asset ownership and cohabitation agreements may become even more important as couples consider how their legal and financial affairs should operate if their relationship ends or one partner dies. STEP welcomes the opportunity to engage further with government as the proposals develop and will keep members apprised accordingly.

Emily Deane TEP, Technical Counsel and Head of Government Affairs, STEP