A Fairer End to Cohabiting Relationships? Some Problems with the Government’s Reform Proposals

Article abstract: This article critiques the Ministry of Justice’s proposed framework of financial remedies for separating cohabitants, as set out in its recent consultation paper, A Fairer End to Relationships. It argues that, while there is a compelling case for statutory cohabitation reform, the Ministry’s scheme is flawed in several important respects. As a result, while the scheme may benefit some cohabitants, it is nevertheless likely to permit, and in some cases cause, injustice to others.

On 5 June 2026, the Ministry of Justice published A Fairer End to Relationships, a consultation paper setting out proposed reforms to the law governing financial arrangements when relationships end.[[1]] A central aspect of the reforms is the establishment of a new scheme of financial remedies for separating cohabitants.[[2]] Consistently with the Ministry’s aim of preserving the distinct status of marriage, the remedies available to cohabitants would be less generous than those available to divorcing spouses, and access to them would be limited by a range of eligibility conditions. Nevertheless, the Ministry presents the scheme as advancing its aims of prioritising fair outcomes for children and protecting vulnerable parties from economic hardship.

This article critiques the Ministry’s proposed framework of cohabitant regulation. It argues that, while there is a compelling case for statutory cohabitation reform, the Ministry’s scheme is flawed in several respects. As a result, although it may benefit some cohabitants, the scheme is nevertheless likely to permit, and in some cases cause, injustice to others.

1. A questionable hierarchy of relationships

A central organising principle for the Ministry’s proposed scheme is that it must ‘not impinge on the unique status of marriage’.[[3]] As noted above, the Ministry seeks to achieve this by ensuring that the financial remedies available to cohabitants would be less generous and less easily accessible than those available to spouses. Thus, the sharing principle would not apply to cohabiting relationships; remedies would be limited to cohabitants’ essential, rather than ‘discretionary’, needs; claims would be subject to a two-year limitation period; and clean breaks would be the default in all but the most exceptional cases. In the rare cases where ongoing maintenance would be ordered, any such order would be time-limited and non-extendable. By imposing these limitations on the availability and content of remedies, the Ministry would preserve a legal hierarchy between marital and cohabiting relationships.

While this hierarchical structure supports the Ministry’s aim of upholding the distinct status of marriage, it does so at the expense of two of its other aims: achieving fair outcomes for children and protecting the vulnerable. Indeed, each limitation on the availability and content of remedies renders the scheme less able to provide effectively for the needs of children and vulnerable cohabitants. In this regard, the two-year limitation period appears particularly harsh, since it is likely to exclude some cohabitants, and their children, from provision they might otherwise have obtained. However, every such limitation would permit some hardships that a more generous and accessible scheme might have alleviated.

Given its implications, the scheme’s hierarchical structure requires clear and substantial justification. Yet the consultation paper provides none. Even if we accept the Ministry’s contentious and unsubstantiated assumption that it is permissible for the state to privilege marital over non-marital relationships,[[4]] it remains unclear how this assumption would justify the kinds of limitations that the Ministry builds into its proposed scheme. As the Ministry recognises,[[5]] empirical research has found no evidence that the introduction of legal rights for cohabitants in other jurisdictions has reduced marriage rates, even in the context of assimilative schemes that treat eligible cohabitants identically to married couples on separation.[[6]] There is consequently no obvious reason to believe that a more accessible and generous scheme of cohabitant regulation would serve to undermine marriage. On this basis, the limitations on remedies for cohabitants appear to perform a largely symbolic function, serving primarily to signal the government’s preference for marital relationships. Given that these symbolic signals are likely to come at the cost of concrete financial hardship for some children and vulnerable parties, it is questionable whether they can be justified. In any case, they sit uneasily with the government’s wider aspiration to use its scheme of cohabitant regulation as a means to protect women and girls from violence and abuse.[[7]]

The symbolic concerns of the Ministry are also evident in its characterisation of the cohabiting relationships to which its scheme is intended to apply: specifically, those that are ‘romantic, committed, long-term [and] interdependent’, and that demonstrate ‘stability, mutual commitment and a shared life’.[[8]] Relationships that do not conform to this ideal would therefore fall outside, or sit uneasily within, the scheme’s protective rationale. This is puzzling. Research suggests that ‘vulnerability is most exposed’ in the context of ‘uneven’ cohabiting relationships, where there is a ‘severe power imbalance between partners’, and consequently a lesser degree of mutual commitment to the relationship.[[9]] Arguably, then, the cohabiting relationships that call most urgently for legal protections are those that conform least readily to the ‘mutually committed’ ideal that the Ministry is seeking to favour. Indeed, the Ministry’s valorisation of this ideal is particularly jarring given its framing of the reforms as part of a wider project to tackle violence against women and girls. Violently abusive relationships are, after all, more naturally characterised as precarious, exploitative, and chaotic than stable, mutually committed, or romantic.

The same prioritisation of symbolism over protection is also evident in the Ministry’s stipulation that cohabitants would be ineligible to apply for remedies if they are younger than 18.[[10]] Adolescents aged 16 or 17 can participate in cohabiting relationships, have children within them and, in view of their age, are especially likely to be vulnerable to exploitation and abuse. It is therefore difficult to see how their exclusion from the scheme can possibly be consistent with the scheme’s protective aims.[[11]] The Ministry seeks to justify the exclusion on the basis that 18 is the minimum age for marriage and civil partnership, and that excluding adolescents from the scope of cohabitant regulation would serve a similarly protective function.[[12]] Yet this reasoning is profoundly confused. The minimum age for marriage serves a protective function because it prevents under-18s from legally marrying. By contrast, the proposed minimum age for access to the cohabitation scheme does not prevent under-18s from participating in exploitative cohabiting relationships; it merely prevents them from accessing protective remedies. Adolescents’ exclusion from the scheme is more explicable, however, when understood in the context of the Ministry’s wider symbolic concerns. If the Ministry is using the conferral of legal rights to signal the relationships of which it approves, then it is less surprising that relationships involving adolescents fall outside the class to which it is willing to attach protective legal rights. The problem, of course, is that this symbolic gesture would come at the expense of some of the most vulnerable cohabitants in society.

In summary, the Ministry’s scheme is incongruent because it purports to serve both symbolic and protective functions at once. It would be substantially improved if it did less signalling and more protecting.

2. Entangling parenthood and cohabitation

The Ministry’s scheme offers two routes by which cohabitants may become eligible for financial remedies: by cohabiting for three years or longer, or by being co-parents of a common child.[[13]] Childless cohabitation and ongoing co-parenthood have distinct normative and practical implications, yet the scheme uses a single framework of financial remedies to respond to both. This is a problem, because the framework is firmly oriented around the presumption of an immediate clean break between cohabitants, with ongoing maintenance obligations available in only exceptional circumstances, such as where a cohabitant has serious health issues or a disability.

The preference for an immediate clean break is potentially understandable in the context of childless cohabiting relationships. In such cases, the termination of the relationship is likely to mark the end of ongoing relations between the parties, and the purpose of financial remedies can plausibly be framed as one of ‘settling up’ so that each party can move forward independently of the other. The same cannot, however, be said in cases where the parties remain co-parents of a common child. The costs that come with caring for a child do not end simply because the parents cease to live together; on the contrary, separation is likely to aggravate those costs for the parent who retains primary responsibility for childcare. If the Ministry’s goal is to protect children and vulnerable cohabitants, then its preference for an immediate clean break between co-parenting cohabitants is counterproductive.

Moreover, as Merle Weiner has argued, there is a compelling normative case for saying that co-parents should provide one another with ongoing financial support in their own right, rather than merely for the benefit of the child, even after the termination of their cohabiting relationship.[[14]] Both parents have a moral and legal responsibility to care for and nurture their child. A parent who undertakes the greater share of this costly caring labour relieves the other of the need to do so, and thereby confers a benefit upon them. To prevent the benefited parent from free riding on the efforts of the other, the former should therefore be required to share in the costs that the latter incurs in caring for the child. This means contributing on an ongoing basis not only to the maintenance of the child, but also to the maintenance of the carer. It is difficult to see how this outcome could be achieved by the Ministry’s scheme, given its determination to sever financial connections between cohabitants at the earliest opportunity.

This defect could be at least partially rectified in two different ways. The more radical solution would be to disentangle the financial obligations that adults owe to one another as co-parents from those they owe as former cohabitants (or, indeed, as former spouses). On this approach, co-parents would be required to share fairly in the costs of parenthood regardless of whether they had married or cohabited in the first place. For the reasons identified above, there are good grounds for believing that this approach is the more principled one. If, however, as seems likely, the radical solution is politically infeasible, then the Ministry could go some way to achieving fairer outcomes by disapplying the clean break presumption in cases where cohabitants are co-parents of a common child. This would at least provide a framework in which the costs of caring for children could be shared more fairly between former cohabitants, albeit while still problematically denying an equivalent remedy in cases of non-cohabiting co-parenthood.

3. Inadequate normative foundations

The most fundamental defect in the Ministry’s scheme is its lack of adequate normative foundations. In particular, the scheme is compromised by its reliance on need as the basis for financial remedies.

Under the Ministry’s framework, if one cohabitant is unable to meet their essential needs following the termination of a relationship, and the other has sufficient resources to do so, the scheme would favour an order requiring the latter to meet those needs, regardless of the reasons for which they exist.[[15]] By the same token, a cohabitant who is able to meet their essential needs following the termination of a relationship would not be entitled to a financial remedy under the scheme, regardless of any disadvantage they have suffered, or any benefit their partner has enjoyed, as a result of their contributions to the cohabiting relationship. The result is a scheme that may grant remedies in cases where fairness requires it to deny them, and withhold remedies in cases where fairness requires it to grant them.

To see this, suppose that Alan, a low-earning and sporadically employed individual, moves into a property owned by Beth, his higher-earning partner. Over the course of their four-year cohabiting relationship, Beth does not charge Alan rent and, given the discrepancy in earnings, pays the vast majority of household outgoings and costs associated with activities they undertake together. The couple do not have children, and otherwise keep their finances separate. Over time, the relationship deteriorates, in part due to Beth’s growing perception that Alan values her money more than he values her. They split up, and Alan moves out. Given his limited resources, he is unable to meet his essential housing or income needs. In such circumstances, it is difficult to see why Alan should be entitled to look to Beth for financial support, or why Beth can be fairly required to provide such support. Yet since the Ministry’s needs-based framework bases the availability of remedies on the existence of need rather than any judgment about the source of that need, it might nevertheless oblige Beth to provide Alan with financial provision.

Now consider a case in which Cara and David are cohabiting parents of their young child, Edith. Both were high earners before Edith was born, and both have independent financial resources. After Edith’s birth, Cara returned to work in a lower-paid but more flexible part-time role to enable her to undertake the bulk of Edith’s care. Shortly after Edith’s fourth birthday, David moves out, and thereafter plays only a minimal role in her life. Thanks to Cara’s pre-existing resources and income, she is able to meet her essential needs at the point of separation. Nevertheless, the necessity of undertaking sole responsibility for Edith’s care will impair her ability to earn and accrue pension provision in the future. For reasons explored above, in these circumstances there is a compelling moral case that David should share in the ongoing costs Cara incurs as Edith’s carer. Yet, because Cara is able to meet her essential needs when the relationship ends, the Ministry’s needs-based scheme would apparently deny her a financial remedy against David.

These examples illustrate that need should be treated as neither a necessary nor sufficient basis for financial remedies between cohabitants. Instead, remedies should aim to uphold a principle of fair play between former cohabitants: those who have benefited from their partners’ efforts or forbearances should bear a fair share of the costs that their partners have thereby incurred. So understood, the principle of fair play gives the right result in both scenarios outlined above. Since Alan’s needs do not derive from his efforts to confer benefits on Beth, fair play does not require Beth to meet those needs when the relationship ends. By contrast, since Cara’s costly efforts do confer an ongoing benefit on David, fair play requires him to share in the costs Cara incurs as Edith’s carer, notwithstanding the fact that Cara can meet her essential needs without his assistance.

The term ‘fair play’ derives from the philosophical literature on political obligation,[[16]] but the underlying principle has been invoked in family law contexts,[[17]] and plausibly serves as the normative basis for the scheme of cohabitation reform proposed by the Law Commission in 2007.[[18]] However, the Ministry dismisses the Law Commission’s scheme on the grounds that it may fail to remedy all needs arising on the termination of cohabiting relationships, including the needs of children, and that it may be difficult for courts and cohabitants to navigate. These criticisms are, I suggest, misconceived.

First, it is true that a fair play-based scheme would not remedy all needs arising on the termination of cohabiting relationships: as the case of Alan and Beth illustrates, this is a virtue rather than a defect. Yet given that fair play strongly supports ongoing financial obligations between co-parents, it is unlikely that a fair play-based scheme would leave children’s needs unaddressed. The Ministry’s concerns on this front are therefore misplaced.

Second, the Ministry’s worries about complexity appear to derive from the belief that the Law Commission’s scheme would require courts to engage in detailed, retrospective valuation of losses and gains accrued over the course of the cohabiting relationship.[[19]] Given that the Law Commission decisively distinguished its own scheme from such a backward-looking ‘global accounting’ approach,[[20]] these worries suggest that the Ministry has misunderstood the Law Commission’s proposals.

Third, the Ministry suggests its own framework will be ‘simple, predictable, and easy to understand’ because it draws upon the ‘familiar principle’ of need.[[21]] Yet this is hard to square with the fact that the Ministry’s proposals introduce an imprecise distinction between ‘essential’ and ‘discretionary’ needs, and require both categories to be assessed relative to the standard of living that prevailed during the relevant relationship.[[22]] The Ministry’s claim that courts and cohabitants will find these concepts easy to apply is, I suggest, optimistic.

Notwithstanding the Ministry’s assertions to the contrary, I therefore suggest that the Law Commission’s 2007 scheme is more normatively robust and not obviously more complicated than the one the Ministry proposes. If the Ministry’s aim is to provide for a fairer end to cohabiting relationships, it would do better to treat the Law Commission’s scheme as the starting point, though not necessarily the endpoint, of its reforms.

[[1]]: Ministry of Justice, A Fairer End to Relationships (CP1581, 5 June 2026) (hereafter, ‘Fairer End…’)

[[2]]: Fairer End…, 60–77.

[[3]]: Fairer End…, 33.

[[4]]: For a forceful challenge to this assumption, see Clare Chambers, Against Marriage: An Egalitarian Defence of the Marriage Free State (Oxford University Press, 2017).

[[5]]: Fairer End…, 33.

[[6]]: Kathleen Kiernan, Anne Barlow and Rosangela Merlo, ‘Cohabitation Law Reform and Its Impact on Marriage’ (2006) 36 Family Law 1074.

[[7]]: Fairer End…, 7.

[[8]]: Fairer End…, 60.

[[9]]: Anne Barlow and Janet Smithson, ‘Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform’ (2010) 22 Child and Family Law Quarterly 328, 340–1.

[[10]]: Fairer End…, 62.

[[11]]: A point emphasised by Charlotte John in this journal: ‘Mind the Gap: A Chancery Barrister’s Preliminary Thoughts on the Cohabitation Reform Consultation’ (9 June 2026), https://financialremediesjournal.com/mind-the-gap-a-chancery-barristers-preliminary-thoughts-on-the-cohabitation-reform-consultation/

[[12]]: Fairer End…, 62.

[[13]]: Fairer End…, 62–3. In this context, a ‘common child’ is a child of both parties, or a child whom both parties have treated as a child of the family.

[[14]]: Merle H Weiner, ‘Caregiver Payments and the Obligation to Give Care or Share’ (2014) 59 Villanova Law Review 135.

[[15]]: Fairer End…, 68–9.

[[16]]: See John Rawls, ‘Legal Obligation and the Duty of Fair Play’ in Samuel Freeman (ed), John Rawls: Collected Papers (Harvard University Press, 1999).

[[17]]: See Merle H Weiner, ‘Caregiver Payments and the Obligation to Give Care or Share’ (2014) 59 Villanova Law Review 135, and Gillian Douglas, Obligation and Commitment in Family Law (Hart Publishing 2018), 31–2, 240–1.

[[18]]: Law Commission of England and Wales, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (2007) Law Com No 307.

[[19]]: Fairer End…, 67.

[[20]]: Law Commission of England and Wales, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (2007) Law Com No 307, 4.28.

[[21]]: Fairer End…, 66.

[[22]]: Fairer End…, 43–4.