Fairness and clarity: Resolution’s response to the MoJ consultation “A fairer end to relationships”
This article summarises Resolution’s response to the government’s plans to reform financial remedies on divorce, and cohabitation law on separation and death, following the MoJ consultation “A Fairer End to Relationships”, which ran between June and August 2026.
Cohabitation reform has been decades in the making, and a significant part of Resolution’s campaign for better laws for families and children undergoing family change.
Resolution’s Vision for Family Justice, launched in November 2023, had its main policy focus on cohabitants who meet eligibility criteria being able to apply for certain financial remedies. Resolution also indicated support for reform of financial remedies on divorce, based on principled discretion, making outcomes easier to predict.
In June 2024 the Labour Party announced a manifesto commitment to protect unmarried cohabitants, which was confirmed on numerous occasions in Parliament after the previous Labour government was formed in July 2024.
At the end of 2024 the Law Commission published a financial remedies scoping report discussing possible models for reform of the law.
The government chose the difference model for cohabitation law reforms, ie a difference between the application of principles for cohabitation law based on needs, and financial remedies on divorce based on sharing and needs. It has chosen codification plus, where financial remedies on divorce would be codified, with some additional reform to deal with certain areas where the law remains unsettled, combined with the introduction of some limitations on discretion.
The sharing and needs principles
Financial remedy cases
Resolution’s position is that the sharing principle should be the starting point, with the needs principle considered where equal sharing would not allow needs to be met. The distinctions between matrimonial and non-matrimonial property should be codified and clearly defined. Non-matrimonial property should include assets accrued post-separation, whereas matrimonial property should include assets acquired during seamless pre-marital cohabitation. When deciding whether non-matrimonial property has become matrimonial, the use, sharing and treatment of property should be considered.
The section 25 MCA 1973 factors should be retained in a checklist, including reference to relationship-generated disadvantage. First consideration should be given to the welfare of any children of the family, and capital needs, with priority given to housing and income, now and in the future. Both parties should be able to transition to independence provided there is fairness, and hardship is not created in meeting needs.
Cohabitation on separation cases
To mark the difference from financial remedies on divorce, the sharing principle will not apply to cohabitation on separation. The needs model is welcomed in preference to the compensation model, but the definition of needs would benefit from being more broadly defined, having regard to the standard of living in terms of how the family lived during the relationship, and what they need going forward. Cohabitants should not be at risk of facing undue hardship. A presumption that each party should be self-supporting to allow finality also marks a difference between marriage and cohabitation. Resolution has concerns about how to differentiate between essential needs and discretionary needs in practice.
There should be a checklist of matters to be considered when applying the needs principle, including the existence or not of an agreement, and domestic abuse which has impacted on earning capacity, income, accrual of savings or pensions.
Eligibility
Graeme, with Jo Edwards, chair of Resolution’s Family Law Reform Group, presenting Resolution’s response at the MoJ
For cohabitants on separation, “cohabitants” should be two people living together as a couple in an enduring relationship. There should be a non-prohibitive, non-prescriptive and non-exhaustive list of factors for determining when individuals are cohabiting. These include existence of a joint household involving a sharing of daily tasks and duties, permanence and commitment to a shared life; financial arrangements; responsibility for the children; presence of a sexual relationship; and public recognition of the relationship.
Seamless cohabitation involving a premarital cohabiting relationship should count towards the length of the marriage in financial remedy cases, with the same list of factors being applied as for cohabitants on separation.
Those already married or in a civil partnership or too closely related to be married should be ineligible for cohabitation remedies. Anyone under 18 should not be eligible unless there are exceptional circumstances.
Resolution supports the government’s proposal that couples without children must have lived together for a minimum of three years before accessing the cohabitation framework.
Where cohabitants are living together, and there is a child of the family, the minimum duration requirement should be disapplied. This definition should include those children over the age of 18 by the time the cohabitation claim is made to protect those in the unfair position of Valerie Burns in Burns v Burns [1984] Ch 317.
Resolution proposes a three-year time limit to prevent claims being made more than three years after the relationship ended, with discretion to allow applications outside this in exceptional circumstances to prevent injustices in individual cases, or subject to domestic abuse/misconduct and other exceptions. There should be an ability to disapply the time limit if the couple agree, where they choose to use non-court dispute resolution, rather than being forced to issue a protective application.
Remedies
The wide range of orders to meet needs in cohabitation on separation cases is welcomed, including the ability to apply for pension sharing. However, rather than being limited to exceptional circumstances, cohabitants should be able to apply for maintenance for a limited period to reflect the economic advantages or disadvantages generated by the relationship which cannot otherwise be redressed if there is insufficient or unavailable capital to achieve a clean break. Maintenance should be permitted for such period as it can be used as a tool on a case-by-case basis with reference to the payer’s available income at the point of separation. Maintenance should not be extendable unless exceptional circumstances apply.
In financial remedy on divorce cases, the court should consider pensions accrued as a whole, not only those accrued during the marriage, and pension needs, when making financial orders.
Agreements
The law should provide for qualifying nuptial agreements (QNAs) to be binding unless this would result in manifest or serious injustice for either party. Safeguards should refer to misconduct, undue influence or misrepresentation. Time for negotiation and proper consideration is preferred to a minimum number of days before a wedding. The parties should have an opportunity rather than be compelled to take legal advice, with each party instructing separate solicitors. Resolution does not agree that discretionary needs should be excluded in QNAs, our preference being that QNAs follow the same principles in other financial remedy on divorce cases, with the possibility for parties to contract out of certain financial provision, if properly advised.
Resolution favours a model that allows cohabitants to opt out of a cohabitation framework by means of a valid agreement which binds the parties unless this would similarly result in manifest or serious injustice for either party. Consideration also needs to be given to partial opt-out agreements, such as cohabitation, separation and compromise agreements, and the power of the court to review a situation following an opt out due to a change of circumstances which would result in manifest or serious injustice. Opt out agreements should not prevent an application to the Child Maintenance Service for child maintenance nor should they prevent a Schedule 1 Children Act 1989 application.
Domestic abuse/misconduct
Domestic abuse should be more readily taken into account in relation to the distribution of assets by the court in financial remedy and cohabitation proceedings, with consistent treatment for all victim-survivors of domestic abuse, irrespective of their relationship status. The court should be able to prioritise the needs of victim-survivors for housing, income or pension security. Future legislation could include more widely available legal services payment orders; a presumption that sums dissipated or transferred to third parties up to three years prior to separation are taken into account; and strengthened interim remedies.
The “gasp factor” test should no longer be the threshold for considering misconduct in financial remedy proceedings. Misconduct should include dissipation of assets; false liabilities; deliberately stopping or destroying a party’s income or earning capacity; failure to give full and frank disclosure; and litigation misconduct. Misconduct is best considered by assessing each party’s contributions, and/or considering current and future needs in the context of the abuse experienced.
Cohabitation on death
A qualifying cohabitant should have intestacy rights and should be treated in the same way as parents or siblings of the deceased rather than having the same intestacy rights as spouses or civil partners. Qualifying cohabitants with children should have the same automatic entitlement as any children of the deceased, with qualifying cohabitants entitled to remain in the home they shared with the deceased for a specified period to allow time for them to adjust before it is required to be sold to divide the estate.
Cohabitants should have the same priority as spouses and civil partners to apply for a Grant of Administration where their partner dies intestate. A cohabitant could be defined as living in the same household as the deceased and as if that person and the deceased were married or civil partnered. Resolution considers three years to be an appropriate minimum duration period if the couple do not have a child together, with no minimum duration period if they have a child period.
Eligibility for I(PFD)A claims should be extended where cohabitants have shared children. The impact on other beneficiaries should be carefully considered, particularly on any of the deceased’s children from another relationship.
Concluding comments
Resolution’s response to the MoJ consultation is a highly informed, practical and considered paper intended to assist the government with its aims to introduce new laws that improve and clarify financial remedy law for the public, for couples contemplating marriage and cohabitation, and those experiencing relationship breakdown on divorce or cohabitation separation, as well as improving rights for cohabitants on the death of their partner. Resolution will be happy to continue to support the government in any campaign they wish to launch to raise public awareness on the new legal rights in advance of the changes in the law. At the time of writing, the MoJ continues to consult on weddings law reform, with the expectation that such reform can be introduced alongside financial remedies reform on divorce and cohabitation reform.
As Chair of Resolution’s Cohabitation Committee, I was intensively involved in Resolution’s response, led and assembled by Jo Edwards, Chair of Resolution’s Family Law Reform Group, and skillfully drafted by Resolution’s Head of Policy, Rachel Rogers.
Ultimately, I have found this to be a triumph of motivated and talented family professionals working together collegiately to improve our laws and practice for now and the generations to come. Our work is by no means done, but this is an important milestone which deserves to be acknowledged.
Graeme Fraser, William Sturges LLP and chair of Resolution’s Cohabitation Committee