A fairer end to relationships: the proposals for unmarried couples

For couples who live together without marrying, there is no dedicated legal framework at all when the relationship ends. According to the government's figures, around 3.5 million couples in England and Wales live together without being married or in a civil partnership, and almost half of people (47%) believe that "common law marriage" gives them legal rights. There is no such thing in England and Wales, however long you have lived together.

At the moment, if you separate from a partner you are not married to, there is no general right to share in each other's finances. A dispute about a home is decided under property and trust law (a claim under TOLATA), which looks at whose name is on the title and what each of you contributed or intended. Claims can also be made for the benefit of any children, under Schedule 1 of the Children Act 1989. We explain both on our cohabitation disputes page. What is not available is a claim for yourself based on your own needs, such as a share of your partner's pension or maintenance, however long the relationship has lasted.

The government proposes a new set of rights that would apply automatically to eligible couples when they separate. You would be eligible if you have lived together for at least three years, or if you live together and have a child together (or a child who is treated as part of your family), in which case no minimum period would apply.

The court would start from the position that each of you keeps what you legally own. It would only depart from that where it is necessary to meet defined needs, such as housing, capital, income and pension needs, with the welfare of any children considered first. These needs would be assessed more narrowly than on divorce, and the court could not award you more than you would have received had you been married. The court would have similar powers to those on divorce, including transferring property, ordering lump sums and sharing pensions, but ongoing maintenance would only be ordered in exceptional circumstances, such as serious health issues or disability, and then only for a fixed period.

Two further points are worth knowing. A claim would have to be made within two years of separating. And you could choose to opt out of the scheme altogether, but only if you both agree, by a deed made after you have each disclosed your finances and taken independent legal advice. Opting out would not prevent a claim for child maintenance, or a claim made for the benefit of a child.

These proposals are likely to make the biggest difference if you have reduced your working hours to care for children, or your name is not on the home, and you could otherwise be left with very little at the end of a long relationship. They would not put you in the same position as a married couple, and they are deliberately narrower. If you do not meet the eligibility criteria, or you miss the two-year deadline, the government's intention is that you would still be able to bring a property claim under the current law.

At present, if you live with a partner who dies without a valid will, you have no automatic right to inherit from their estate, regardless of how long you were together or whether you had children. Your only route is to ask the court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, which is generally only available if you lived together for at least two years immediately before their death, or if they were supporting you financially.

The government proposes that a qualifying cohabiting partner should inherit under the intestacy rules in the same way as a husband, wife or civil partner, and should have the same priority to apply to deal with the estate. The minimum period of living together needed to qualify is still open. The Law Commission previously recommended five years, reduced to two years where you had a child together, and the government is seeking views on whether those periods remain right. It also proposes removing the two-year requirement for a claim under the 1975 Act where you had a child together.

Even if these changes are made, a will remains the clearest way to make sure your partner is provided for in the way you intend, particularly if either of you has children from a previous relationship.

At present, conduct, including domestic abuse, is only taken into account in financial proceedings in very limited circumstances, and the threshold set by the courts is very high. The government is seeking views on whether domestic abuse, including economic abuse, should more readily be taken into account when the court decides how assets are divided, both on divorce and under the proposed scheme for unmarried couples. It has not yet proposed a specific change, and is gathering evidence first.

Until any new law is passed, the current law applies, and decisions should be made on that basis. If you live together, or are about to, a cohabitation agreement remains the clearest way to record what you have agreed about your home and finances, and a will remains the surest way to provide for your partner. If you are separating from a partner you live with, your position will be decided under the current law, and it would be unwise to delay taking advice in the hope that the law will change, as delay can weaken the evidence some claims rely on.

We will follow the government's response closely and update this article when there is more to report. The full consultation document is available on gov.uk.