Time to bring some truth to myth of ‘common law’ spouse, says CILEX

13 August 2026

Specialist probate lawyers oppose giving unmarried couples the same rights on the death of one of them as spouses or civil partners have, CILEX (The Chartered Institute of Legal Executives) has reported.

But they should have more rights than they have now so as to finally bring some truth to the myth of the ‘common law’ spouse.

CILEX also called on the government to consider the impact of pets on divorce in its work to reform the law around the end of relationships, finding strong support for an Australian model where there are criteria laid out.

The body for legal executives was responding to a Ministry of Justice consultation, A fairer end to relationships, which has three elements: codifying settled case law on the financial aspects of divorce into statute; introducing a statutory framework of rights and protections for eligible cohabitants at the point of separation; and whether to give cohabitants an automatic right to inherit when a partner dies without a will.

Having surveyed its specialist family lawyer members on the first two areas, and probate lawyer members on the third, CILEX found broad support for the proposals, all of which address issues that practitioners face on a weekly basis.

CILEX identified the persistent myth of the ‘common law’ spouse as one of the main problems and says: “Amending the law to be closer in line with public understanding may be beneficial. It may allow individuals to act in a certain way, legally towards their partners, when making decisions – i.e. whether or not to have a will.”

On balance, however, probate lawyer members do not believe that qualifying cohabitants should receive the same intestacy rights as spouses and civil partners.

There are several reasons for this. “If individuals wanted to give their cohabitant rights, they have the option to marry, or have a civil partnership with, their partner and the government should not overrule individual decision making,” CILEX says.

Further, many partners may have separate assets which they wish to go to children, parents or siblings instead, while there are increased risks of fraud.

If the government still wants to progress this, CILEX says it needed to acknowledge that defining cohabitation is likely to prove difficult, such as for those who only live part-time with their partners or not at all.

CILEX lawyers believe that couples should have to cohabit for at least five years to gain such rights, although this should be much less – or done away with altogether – if they have children.

But CILEX supports removing the current two-year qualifying period for a cohabitee to make a claim for a share of the deceased’s estate, if they have had children together.

CILEX backs cohabitation rights more generally, but members are split on whether couples without children must have lived together for at least three years before gaining them, with nearly half saying this was too long, and should be even shorter where the couple have children.

The consultation does not address pets on divorce or separation but CILEX members regularly encounter disputes involving pets, with most believing that the current legal framework inadequate.

Respondents say pet disputes increase conflict between parties, directly inflating legal costs, and impact the emotional wellbeing of both parties and any children.

In Australia, a law passed in 2024 created a checklist for the court to consider when determining an order for a so-called companion animal. This includes factors like the circumstances in which the pet was acquired; who has ownership or possession of the pet; the extent to which each party cared for, and paid for the maintenance of, the pet; any history of actual or threatened cruelty or abuse towards the pet; and any attachment by a party, or a child of the marriage, to the pet. There was strong support for a similar approach in England and Wales.

CILEX President Sara Fowler commented: “CILEX support reforms that promote greater clarity, consistency and fairness, particularly through the codification of key principles. However, successful implementation will depend on robust judicial guidance, sufficient court resources, specialist training and effective public education to minimise disputes and improve access to justice.

“As family structures continue to evolve, reform must balance legal certainty with the flexibility needed to achieve fair outcomes, protect vulnerable individuals and children, and reflect the realities of modern relationships.”

ENDS

For further information, please contact:

Kerry Jack, Black Letter Communications on 07525 756 599 or email at [email protected]

Notes to editors:

CILEX (The Chartered Institute of Legal Executives) is one of the three main professional bodies covering the legal profession in England and Wales. The approximately 18,000-strong membership is made up of CILEX Lawyers, Chartered Legal Executives, paralegals and other legal professionals.

CILEX pioneered the non-university route into law and recently launched the CILEX Professional Qualification (CPQ), a new approach to on-the-job training that marries legal knowledge with the practical skills, behaviours and commercial awareness needed by lawyers in the 2020s.

The CPQ is a progressive qualification framework that creates a workforce of specialist legal professionals, providing a career ladder from Paralegal through to Advanced Paralegal and ultimately full qualification as a CILEX Lawyer. CILEX Lawyers can become partners in law firms, coroners, judges or advocates in open court.

CILEX members come from more diverse backgrounds than other parts of the legal profession:

76% of its lawyers are women
16% are from ethnic minority backgrounds
- 8% are Asian or Asian British
- 5% are Black or Black British
- 3% are from a mixed ethnic background
77% attended state schools
63% come from families where neither parent attended university
Only 3% of its members have a parent who is a lawyer.

CILEX members are regulated through an independent body, CILEx Regulation. It is the only regulator covering paralegals.