David Lammy’s proposed cohabitation law would be bad for couples – and worse for some women | Ruth Deech

Andy Burnham will walk into No 10 on 20 July to a bulging in-tray of policies, proposals – and problems. One he may be less aware of is a ticking political timebomb launched by David Lammy in his role as justice secretary, which could affect millions of people who have chosen not to marry.

Under Lammy’s proposal, couples who have lived together for three years, or who have a child together, would automatically acquire marriage-like legal obligations they never agreed to, meaning either partner could ask a court to make financial orders if the relationship ends.

I have opposed automatic cohabitation rights since 1980, written extensively on the subject, and the last time parliament considered similar proposals in 2021, I submitted written evidence to the women and equalities committee.

This time, the proposal is part of a government consultation that launched on 5 June – and that also includes reforms to make financial arrangements after divorce and civil partnership dissolution more straightforward and less reliant on court proceedings. That’s fair enough. But the proposals on cohabitation go much further, raising profound questions about choice, consent and fairness.

While the Ministry of Justice argues that cohabitation rights would not become equivalent to marriage, ministers are simultaneously proposing giving judges many of the same powers available in divorce proceedings, including deciding how properties, assets and pensions are shared, and whether lump-sum or maintenance payments should be made.

And the proposals extend beyond separation into death, with the government also considering granting automatic inheritance rights to qualifying cohabitants when a partner dies without leaving a will. This could affect the inheritance of other loved ones, even if the deceased person deliberately chose not to marry or enter a civil partnership as a way of controlling that inheritance.

The government’s argument is that family life has changed – 3.5 million couples now live together without marrying – and that these reforms could protect vulnerable women, particularly those who have become financially disadvantaged during a cohabiting relationship. That is a legitimate objective; no one should be left destitute because a relationship ends. But the proposals may not even achieve that aim.

They recommend that cohabiting partners who separate should settle any financial matters through property transfers and lump sum orders; maintenance would only be paid in exceptional circumstances. But many cohabiting couples have relatively modest assets compared with married couples, which could quickly be consumed by court costs.

Meanwhile, by seeking to protect one group of women, ministers have paid remarkably little attention to another: the millions of divorced and widowed women who have consciously chosen financial independence. They may have secured homes, pensions and assets through divorce settlements, or inherited family property, and have children and grandchildren they want to provide for.

For these women, some of them vulnerable, cohabitation is a safe space – companionship without financial integration or legal obligations. So what happens if a coercive partner refuses to opt out of the government’s proposed scheme before three years of living together? Under the government’s plans, the woman would face a brutal choice: accept being automatically included in the scheme and hope for the best, or leave the relationship.

The voices of these women are entirely absent from this debate, but they must be heard.

The consultation also proposes a series of criteria for courts to assess what constitutes a relationship, including its stability, financial arrangements and even the presence of a sexual relationship. As well as being intrusive and potentially unfair, these criteria risk adding a new and highly complex category of legal dispute.

There is also a serious question about personal freedom and human rights. Article 8 of the European convention on human rights protects the right to respect for private and family life. The right to private life includes the freedom to choose different forms of relationships and the freedom to decide what legal obligations we wish to assume.

And these plans are no longer simply the subject of the consultation; there is now an attempt to make them law. On the day the Ministry of Justice launched the consultation, Jonathan Marks re-introduced his cohabitation rights bill into the House of Lords.

The bill closely mirrors many of the government’s proposals, including automatic rights after three years of cohabitation, an opt-out framework, broad court powers over property and pensions, and new inheritance rights for qualifying cohabitants. It receives its second reading on 17 July, when parliament will have its first opportunity to debate whether Lammy’s automatic cohabitation rights are really the right direction for family law.

But they might also ask themselves whether this legislation is even necessary when cohabiting couples already have options under the current law. They can already enter into cohabitation agreements, choose how property is owned, make wills, nominate beneficiaries for pensions, and put other financial arrangements in place. The law also covers child maintenance agreements between unmarried parents, and the Children Act 1989 lets courts make financial provision for children where appropriate.

If ministers believe those protections are not working effectively, they should strengthen them directly rather than fundamentally changing the legal status of millions of adults who have consciously chosen not to marry – and who may not even be aware of the legal framework into which they are being auto-enrolled.

In a free society, relationships should be based on choice and consent. The law and government must respect that, and I would encourage people to engage with this public consultation at its website before it closes on 14 August. You can also learn more about the case for opt-in at yourrelationshipyourchoice.org.uk.