Cohabitation Rights Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Friday 17th July 2026 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

That the Bill be now read a second time.

[Baroness in Waiting/Government Whip (Baroness Ramsey of Wall Heath) (Lab)]

My Lords, before we begin the debate, I remind the House that the advisory speaking time is four minutes for Back-Bench contributions. This is to allow all colleagues to participate fairly and the House to rise at a reasonable time around 3 pm.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this is not the first time I have introduced a Bill in this form that closely follows the Law Commission recommendations for financial relief for cohabitants in 2007, and for improving a cohabitant’s position on the death of an intestate partner in 2011.

However, we now have a real prospect of achieving worthwhile reform for cohabitants. That is because this Government made a manifesto commitment to strengthen the rights and protections available to women in cohabiting couples. As part of fulfilling that commitment, on 5 June the Government opened a consultation on a set of proposals they were considering. It is due to close on 14 August and is very good news for those of us who have long sought reform in this area, including a majority of practitioners, judges and the specialist family law associations, including Resolution, the Family Law Bar Association and others.

Why is there a need for reform? The House of Commons Women and Equalities Committee reported in 2022 that there were an estimated 3.6 million unmarried couples cohabiting in the United Kingdom—roughly a fifth of all couples and well over double the figure in 1996, 26 years earlier. Yet, although cohabitation is so widespread and increasing so quickly, nearly half the public still believe that cohabitation over a period, or a couple’s having a child, gives rise to a so-called common-law marriage, bringing with it financial rights if they separate. This false understanding, the common-law marriage myth, is just that—a myth. There are, in reality, virtually no financial rights protecting cohabitants who separate.

It is true that couples can enter into formal cohabitation agreements to regulate their financial affairs, providing for ownership of assets and for the consequences of separation. But very few couples make them, and if they do not, they are thrown back on outdated and unwieldy trusts law, by which a partner can claim a share in the property that is in the name of the other, if—but only if—they can establish that this was the joint intention of the parties. Even then, the shares are difficult to determine. There is also an entitlement to child maintenance, but even that is limited in extent, and to secure more requires an application under the Children Act, which is costly and complex, and very few such applications are in fact made.

Currently, one cohabitant, who may have given up a career or home, or both, to live with the other, or invested all their efforts and resources into supporting their partner’s business, home life or childcare needs, is left, on separation, without any recourse. Then, if one partner dies without a will, current intestacy rules provide nothing for the surviving partner. The deceased’s estate, often including the couple’s home, goes to the relatives of the partner who died, often children from a previous relationship who may have no good will towards the surviving partner. So, unless the surviving partner’s name was on the deeds, they get nothing and may be left homeless. There may be a right to apply for some provision under legislation passed in 1975, but that requires proof of dependency.

Both the Bill and the Government’s consultation proposals seek to address this unfairness by providing for financial relief on the breakdown of cohabitation and by reforming what happens on the death of an intestate partner. The two sets of proposals have much in common. Both would require either three years of cohabitation as a couple, whether same sex or opposite sex, or the arrival of a child, before any claim could arise. Both would require that any claim be brought within two years of separation. Both would exclude couples who would be prohibited to marry because of close family relationships. Both would permit couples to enter into formal opt-out agreements, excluding applications under these proposals. Both would allow a broad range of remedies, including property adjustment orders, lump sum orders and pension-sharing orders. The consultation proposals would also allow for maintenance for a limited time in exceptional cases. My Bill would not provide for maintenance orders, although a lump sum could be payable in instalments.

Importantly, neither set of proposals would treat cohabiting couples as if they were married or in a civil partnership. Marriage and civil partnerships have a special status in law and conscience. The consultation considers separate proposals to develop, simplify and clarify financial relief on divorce or dissolution, but those are irrelevant to the Bill. They recognise that marriage embodies a commitment to mutual support and sharing, hence the provision on divorce for continuing maintenance, where income dependence is established. The proposals in my Bill for relief for separating cohabitants are intended to address unfairness and exploitation. Contributions by one partner, who makes financial sacrifices for the other, should carry recompense.

My Bill reflects the Law Commission’s proposals for what it called “retained benefit” to be removed and for any residual economic disadvantage to be shared between the parties. That may seem to some a complicated approach, but it addresses equitably the unfairness of one party profiting from a cohabiting relationship and walking away the richer from it, leaving the other party correspondingly poorer on separation. That is unjust. At worst, it is exploitative, and it needs addressing.

There are, however, two differences of substance between the proposals in my Bill and the thrust of the proposals under consideration in the consultation paper. First, the Government’s proposals expressly mark a step towards fulfilling their manifesto commitment to halve violence against women and girls in a decade. I applaud and share that aim. I agree that financial relief for separating cohabitants would support that aim in cases that involve violence or coercion, but these proposals need to be of general application: whenever separation after cohabitation would lead to unfairness and less relief were granted, whether or not domestic abuse is a feature.

The second difference is more significant. Although the concepts of reversing retained benefit and showing economic disadvantage may be overcomplicated—I would readily consider amendments to simplify them—I am concerned that the Government seem to have rejected compensation as a basis for relief on cohabitants’ separation. Their proposals are based only on the financially weaker party’s financial needs. However, the requirement for relief often arises because one party has unjustly benefited from sacrifices made by the other, so that the benefiting party ought, in fairness, to disgorge benefit achieved at the expense of the other. This injustice arises irrespective of need.

To pose an example, a man gives up his lucrative career to look after the party’s child and to work on renovating his partner’s house, all to enable his partner to pursue her acting career. She becomes a successful actor, partly on the back of his efforts. Why should she keep the house and all the benefits of his contributions, for which he gets no recognition? The injustice does not arise from his needs—he may be able to earn a living himself; it arises from his sacrifices for her benefit.

These are interesting issues, on which there may be competing answers. I have not sought to go through all the provisions of my Bill in detail, because what is now important is for the Government to collect and consider the consolation responses. However, I much look forward to engaging with the Minister and the Government on these proposals, and to making progress on this difficult area, where there is now widespread recognition of an unmet need. I beg to move.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful to everyone who has contributed to this debate on a Private Member’s Bill. It is an unusual position that we find ourselves in, with my Private Member’s Bill, which was introduced just after the King’s Speech, and the consultation, which was announced on 5 June. The two are proceeding in parallel, which is unusual, and which is why I did not go into the detail of my Bill. We nevertheless had a very interesting debate, with some very important points being made.

I should start with my friend—he is a chambers colleague as well—the noble and learned Lord, Lord Garnier. I welcome his support for this legislation, and his urging the Government and me to see whether we cannot get together to produce a single Bill that perhaps has the best and avoids the worst of the proposals on either side. In so doing, I should make it clear that I see a great deal of merit in almost all the consultation proposals. My doubts about the needs-based scheme and the compensation-based scheme, which the noble Baroness, Lady Levitt, explained, can be capable of resolution where there is some case for righting injustice and unfairness, where there is a need for compensation, where one party has been exploitative of the other. That is a real danger; unlike the needs-based regime that the Government are consulting on, this involves addressing the needs of cohabitants who are left.

I also take the point about the other difference that I mentioned between us: the role of abuse and violence in relationships, where the weaker partner is coerced by the stronger partner into accepting a position whereby they have very limited rights. They do not get married, and they are left without resources and often with children. That is, of course, a very powerful argument for the needs-based approach. I hope that we can achieve most of our objectives. The very fact that there is this consultation and that we are going to get legislation is the most important aspect of this debate.

I particularly welcome the support of the noble and learned Baroness, Lady Butler-Sloss, which has been consistent since I first introduced this Bill. I welcome it particularly because, as a member of the Marriage Foundation who is committed to marriage—as indeed I am, and I think all the supporters of this Bill are—she has considered carefully whether there is a risk of an adverse impact on the institution of marriage from proposals for cohabitation support. I agree with and am warmed by her belief that there would be no adverse reaction.

I thought that the noble and learned Baroness and the noble Baroness, Lady Gohir, raised a very important point, which the Government are going to consider, about religious-only marriages. I quite understood the point raised by the noble Lord, Lord Wolfson, that the United Synagogue may have got it right in insisting on a dual marriage, but there are nevertheless many cases where a religious-only marriage, in a Muslim context, can result in serious injustice to women who are later left.

I turn to the central point made by the noble Baroness, Lady Deech, and the noble Lord, Lord Wolfson, on autonomy. I accept that autonomy has an important place in English law, but relationships and marriage both develop over time. Many relationships start with cohabitation and then move into marriage, of course, then they adopt the regime that we apply to marriage or to civil partnership. But it is a gradual process, and people sometimes fall into cohabitation without considering either a cohabitation agreement or whether they should opt out of such legal protections as we introduce.

Then children come along, not always entirely expected and not always intentionally, but nevertheless they change the dynamic of a relationship. I believe it is incumbent on society and on the law to keep up with that and to recognise that injustices and unfairnesses can follow and relationships then break down—it can also happen when one partner dies—if the law has not made sure that there are protections in place.

I am very grateful also to my noble friend Lady Hamwee for her reflections on this Bill and her support for it. It is indeed Liberal Democrat policy to have this kind of reform, although I should say that I moved the conference motion that brought that about, so I may take some responsibility for that.

I am hopeful. I heard everything that the noble Baroness, Lady Levitt, said in reply. We have had conversations and I hope we will have many more during the course of the consultation. We need to go forward with both for now, and I hope there will be a time when we may come to an amalgamated position.

Bill read a second time and committed to a Committee of the Whole House.