In a guest post, Professor Russell Sandberg looks at the recent consultation on cohabitation rights

Why the consultation on cohabitation rights is to be welcomed

In 2021, I published a book entitled Religion and Marriage Law: The Need for Reform. Most of that book focused on the need to modernise the law on how to get married but the penultimate chapter focused on cohabitation rights. That chapter might be seen as an afterthought. But, as I pointed out in the introduction to that chapter, ‘it was in many ways the most important’ of the reform proposals I was advocating. The new Government consultation, A Fairer End to Relationships, is to be welcomed, therefore, since it includes proposals to give cohabitation rights on separation and death alongside modernising the law on financial remedies on divorce.

Why cohabitation rights matter 

From a religious perspective, the cohabitation rights proposed in A Fairer End to Relationships may cause concern for some in terms of seemingly undermining the status of marriage. Such fears are ill-founded. Under these proposals, the rights afforded to cohabitants will still differ and be less than those enjoyed by married couples and civil partners. Moreover, giving cohabitating couples in England and Wales the kind of rights that they enjoy in many other jurisdictions would make a major difference to the issue of what have been called ‘unregistered religious marriages’, ‘religious only marriages’ or ‘non-qualifying ceremonies’. These exist where the couple undergo a wedding ceremony that does not comply with the Marriage Act 1949. Religious marriages are recognised under the Act but in relation to religious weddings other than Church of England, Quaker and Jewish ceremonies the ceremony must take place in a registered place of religious worship in order to be legally binding. It therefore excludes religions that do not have such buildings or do not have a tradition of getting married in such buildings. Though the couple are married in the eyes of their faith, they are not married in the eyes of the law.

There are all sorts of reasons why couples might have unregistered religious marriages: it may be the choice of the parties (in some communities, religious marriages effectively allow the couple to date, to be together without a chaperone), it may be because the parties are unsure of the law or it might be because it is difficult or impossible for a religious ceremony reflecting their beliefs to be held in a way that is compatible with marriage law requirements. What is clear is that couples who are in such relationships have no legal redress on relationship breakdown on the basis of their relationship (as opposed in relation to property or children) and this does lead to hardship, especially where one or both of the parties are unaware of this.

This is perhaps epitomised by the facts that led to the case of HM Attorney General v Akhter & Ors [2020] EWCA Civ 122. In 1998, Nasreen Akhter and Mohammed Shabaz Khan had a nikah ceremony. They intended to register the marriage under civil law but never got around to it and indeed as time went on Khan refused to register it. They had four children together and while they lived in Dubai between 2005 and 2011 they were considered by the authorities there to be validly married. After 18 years and back in the UK, the relationship broke down in 2016 and Akhter issued a petition for divorce from Khan. At first instance, Mr Justice Williams took a ‘holistic’ view to conclude that this should be treated as a void marriage and so entitled to legal redress. The Attorney General appealed and the Court of Appeal rejected such creativity holding that there was no ceremony under the Marriage Act. Such a ‘non-qualifying ceremony’ was outside the scope of marriage and divorce legislation. Akhter and Khan were cohabitants and denied any legal redress on grounds of relationship status.

This case highlighted the lack of redress for those who are in unregistered religious marriages either where this is unwitting on the part of one or both of the parties or where this is not agreed by one of the parties (such as in this case where the husband promised that they would comply with marriage registration laws at a later date). The fact that such couples have no redress under English law has often meant that they seek a remedy instead from religious courts, tribunals or councils. Numerous empirical studies have shown that a number of the marital status cases decided by such bodies concern couples who are not married under English law. And in such cases, these religious authorities are the only place that couples can turn to, which is problematic to say the least.

Providing some rights to cohabitants on relationship breakdown would provide some redress. It would not recognise their marriage – and that is why reform of the law on cohabitation is needed alongside reform of the law on getting married (a consultation on that is promised by the government before the summer recess). But it would mean that claimants like Akhter would receive some redress from English law – and that there would always be the option of such redress in addition to going to a religious court, tribunal or councils. Such bodies would then always be a form of alternative dispute resolution rather than the only option as they presently are.

What is being proposed? 

That penultimate chapter in Religion and Marriage Law: The Need for Reform surveyed the various approaches taken to cohabitation rights on separation neighbouring jurisdictions as well as the models proposed by the Law Commission and under private member Bills. It concluded that these various approaches actually had much in common. Three main characteristics of a scheme were distilled and these three characteristics can also be found in the proposals found in A Fairer End to Relationships.

The first characteristic is that the scheme would apply if the couple meet the definition of being cohabitants. Some proposals provided more details as to what would be considered as part of the definition of the term cohabitants than others but they tended to agree that having a child together or living together for a certain amount of time was required. This is reflected in the proposals in A Fairer End to Relationships. It is proposed that the new system would apply ‘where two people are living together as a couple in an enduring family relationship’. Courts would determine this using ‘a non-exhaustive checklist of factors’. Both of the parties would need to be over 18 and cannot be relatives or those who are married or in a civil partnership (who would have access to the separation rights available there). The system would be restricted to couples who have been living together for three years or have had a child together. Individuals would need to make an application within two years of separation for the claim to be considered by a court. These requirements largely follow the Law Commission’s 2007 recommendations.

The second characteristic is that the statutory scheme will apply to cohabitants on separation provided that they have not opted-out. The various proposals often prescribed what form that the opt out would need to take to be effective. This opt out rather than opt in requirement would ensure that cohabitation rights are afforded to couples who are choosing to cohabit thinking that they will accrue marriage-like legal rights as well as those where there is an intention to marry but the couple do not get around to it. The proposals in A Fairer End to Relationships follow such an opt in approach, suggesting statutory safeguards based on the Law Commission’s recommendations in its 2014 Report, Matrimonial Property, Needs and Agreements, on pre-nuptial and post-nuptial agreements: in short, a valid contract, made by deed, agreed after each party has received disclosure of material information about the other party’s financial situation and after each party has received independent legal advice.

The third and final characteristic is that the scheme would allow a cohabitant to seek a remedy on separation if certain circumstances are met. Here, the various proposals differed with Lord Lester’s Cohabitation Bill simply stating that the court could make a financial order if ‘having regard to all the circumstances, the court considers that it is just and equitable to make an order’. The other proposals were not broad but instead provided slightly different lists of factors for the court to take into account. A Fairer End to Relationships states that the Government has decided against the ‘compensation-based’ approach proposed by the Law Commission and proposes instead a ‘needs-based’ approach that follows the proposals in respect of divorce but makes several modifications to underline the differences between marriage (and civil partnership) as opposed to cohabitation. Courts would not have the same discretion to meet needs as they have in divorce cases. In assessing needs in cohabitation cases, a two-stage approach would be taken: beginning with children’s needs and followed by the individual’s own financial needs. There would be no equivalent of the third stage proposed for divorce cases that would involve consideration of discretionary needs (that is, the consideration of ‘lifestyle luxuries’). A list of factors would be considered by the court when deciding what is a fair ‘needs-based’ assessment: earning capacity; financial resources of each individual; any physical or mental disability; age; and length of relationship. Where the qualifying criteria is met, it is proposed that courts would have access to a broad set of remedies ‘which reflect what is available on divorce, including property adjustment orders, lump sum orders and pension sharing orders’. The court would also have access to maintenance orders, ‘although the government proposes these would only be available in exceptional circumstances’.

Concluding thoughts

As with any consultation, there is a debate to be had in relation to the details and in particular to the similarities and differences between the frameworks that would apply to the end of cohabiting relationships compared to the end of marriages and civil partnerships. Yet, overall, the need for such reform is clear. Some carefully defined cohabitation rights on separation are needed not only because of the huge numbers of people in such relationships generally who currently lack redress (often unwittingly), but also because of the problem of unregistered religious marriages in particular. As I have argued in Religion and Marriage Law: The Need for Reform and subsequent publications, there is a need for reform of both of the law on getting married and of cohabitation rights. These two reforms would complement each other. Reform of the law on getting married will inevitably not recognise all forms of relationship and so without cohabitation rights on separation, some couples will be denied protection, including some parties who did not wittingly and voluntarily assent to this. The introduction of cohabitation rights alone would not recognise religious weddings that cannot meet the legal requirements as marriages (with all the rights that this would bring). Both are needed. Reform of the law on getting married would extend the types of weddings that are legally recognised, removing the discrimination found in the archaic legal framework, while cohabitation rights on separation would provide a back-stop protection for those whose marriages continue not to be recognised by the State. It is to be hoped that the promised consultation on reforming the law on getting married will shortly follow A Fairer End to Relationships and that both will quickly lead to legislation. Indeed, it would make sense for the changes to appear in the same bill, bringing the law on adult intimate relationships fully into the twenty-first century.

The consultation is open now and runs until 14 August.

Thanks to Professor Sharon Thompson for her comments on a draft of this post. All errors remain my own.

Russell Sandberg

Cite this article as: Russell Sandberg, “Consultation on cohabitation rights: a welcome development” in Law & Religion UK, 8 June 2026, https://lawandreligionuk.com/2026/06/08/consultation-on-cohabitation-rights-a-welcome-development/.