Family law reform: two questions policymakers should not overlook

The government’s consultation on a Fairer End to Relationships has generated significant discussion about the future rights of cohabitants. Much of the debate has focused on the ‘common law marriage’ myth and whether long-term cohabitants should receive greater protection on separation.

There is much to welcome in the proposals. However, from the perspective of those advising HNW and international families, two important questions remain. Firstly, do the proposals go far enough to protect individuals who genuinely believe themselves to be married? Secondly, can the proposed framework operate effectively in an increasingly international world where families may live across multiple jurisdictions and own assets through complex cross-border structures?

These issues are quite different. One is primarily concerned with protection, the other with certainty, but both will matter greatly to clients.

The protection question: what about those who believe they are married?

The consultation rightly identifies the widespread misunderstanding that surrounds relationship rights. One group particularly affected by that misunderstanding consists of individuals who have participated in marriage ceremonies (usually but not always religious) that are not recognised as legally valid marriages in England and Wales.

While they will benefit from the proposed increased protections for unmarried cohabitants, these individuals often do not consider themselves to be cohabitants at all. As far as they are concerned, they are married. Their families regard them as married. Their communities regard them as married. They may have lived as spouses for decades, raised children together and organised every aspect of their finances on that basis. Yet when the relationship breaks down, they find themselves excluded from the financial remedy framework available to divorcing spouses.

The courts have repeatedly grappled with this issue. In Hudson v Leigh, a religious ceremony was held not to have created a marriage because the parties had intended a later civil ceremony. Similarly, in Attorney General v Akhter & Khan, the Court of Appeal concluded that a nikah ceremony amounted to a ‘non-qualifying ceremony’ and therefore fell outside the statutory marriage framework altogether.

One stated aim of the proposed reform is to protect those in abusive relationships. While in some of these cases both parties genuinely believe they are married, in others, one party may be fully aware that the ceremony has no legal effect but allows the other party to continue under the mistaken impression that they enjoy the rights of a spouse. This deliberate deception can mean that no steps are taken to formalise the marriage in the eyes of English law, and no financial claims can be made when the relationship breaks down.

The proposed cohabitation regime would undoubtedly improve the position of many such individuals. Those who currently have little or no claims may acquire access to needs-based remedies and broader financial protection than currently exists. The question is whether that is enough.

Consider a couple who participate in a nikah ceremony, genuinely believing themselves to be husband and wife. They live together for 20 years, raise children and organise their finances on the assumption that they are married. One party sacrifices a career in order to care for the family while the other accumulates substantial wealth, including high levels of income, multiple properties, savings and investments and valuable pensions.

Under current law following Attorney General v Akhter & Khan, the parties are not married for the purposes of English family law and therefore cannot access the financial remedy jurisdiction available on divorce. Any claims must generally be pursued through property law, trusts principles or financial provision for children, often leaving the financially weaker party vulnerable.

Under the proposed cohabitation reforms, that individual’s position would plainly improve. Depending on the final form of the legislation, they may be able to seek needs-based financial provision, but ongoing financial support by way of maintenance would only be available in exceptional circumstances and there would be no ability to share in assets acquired during the relationship beyond those needed to meet basic needs.

A spouse ending a 20-year marriage, by comparison, would benefit from the full range of discretionary financial remedies under the Matrimonial Causes Act 1973 and rely upon well-established principles of sharing, needs and compensation. They could expect to share in real estate, beyond that required to meet their housing needs, as well as liquid capital, other investments, and pensions, not just because they have an identifiable need, but because it is recognised that those assets are owned jointly by the married couple. A spouse who has sacrificed their career and earning capacity for the benefit of the family can also expect ongoing financial support as they adjust.

There remains an important distinction between giving someone the rights of a cohabitant and recognising that they genuinely believed themselves to be a spouse. The consultation appears to assume that enhanced cohabitation rights adequately address the problem, but that ignores not only the limitations of financial claims as a cohabitant rather than a spouse (illustrated above) but also the emotional, reputational and societal consequences of being mislabelled a cohabitant.

There is a legitimate debate as to whether reform should focus solely on improving the position of cohabitants or whether, to achieve a fairer end to relationships for all, further consideration should also be given to the gateway into marriage itself and to the position of those who have organised their lives around a genuine belief that they were married.

The certainty question: can the proposals work for international families?

The second issue is quite different. Unlike those caught by non-recognised religious marriages, international families are not necessarily vulnerable because they lack (or need) legal protection. Instead, the challenge is uncertainty.

The consultation repeatedly relies upon concepts such as parties living together as a couple in an ‘enduring family relationship’. In many domestic cases those concepts may be relatively straightforward to apply. However, they become considerably more difficult when viewed through the lens of international families, for example:

• a family that spends part of the year in London and part of the year in Dubai because one partner works internationally;
• a family that maintains homes in England, France and Switzerland;
• a couple who spend prolonged periods apart because of international employment, immigration restrictions or business commitments;
• families whose assets are held through trusts, family investment companies or overseas structures.

These are not unusual cases in private wealth practice. They are increasingly common examples of modern family life. The consultation provides relatively little guidance as to how such arrangements would be treated. Would periods of cohabitation abroad count towards qualification under the new scheme? Would a couple be regarded as living together if they routinely divide their time between several homes (both together and separately)? How would periods of separation due to employment affect qualification? Would international moves interrupt the qualifying period? At present, the answers are unclear.

This uncertainty has implications for different clients in different ways. For some clients, the concern may be the inadvertent acquisition of financial obligations. A wealthy individual may have deliberately chosen not to marry and may wish to understand when, if ever, legal responsibilities towards a partner may arise. For others, the opposite may apply. A financially weaker partner who has taken on caring responsibilities or sacrificed earning capacity to support an internationally mobile lifestyle for the family may worry that that very lifestyle could be used to avoid financial responsibility altogether.

Whatever framework is ultimately adopted, it needs to provide sufficiently clear rules so that both parties can understand their position and organise their affairs accordingly.

Looking ahead

The consultation reflects a recognition that the law governing family relationships no longer sits comfortably with the way many people live their lives. As family structures become more diverse and international, the gap between legal status and lived reality is becoming increasingly difficult to ignore.

Whether the proposed reforms ultimately strike the right balance is far from certain. The challenge for policymakers is not simply to provide greater protection, but to do so in a way that delivers clarity, fairness and predictable outcomes. Achieving all three is rarely straightforward.

What is clear, however, is that the consultation marks an important step in a debate that extends well beyond cohabitation. It raises broader questions about how family law should respond to changing social norms, international mobility and relationships that do not fit neatly within existing legal categories.