Cohabitants, Property and the Law: A Study of Injustice

DOIhttp://doi.org/10.1111/j.1468-2230.2009.00732.x
AuthorGillian Douglas,Hilary Woodward,Julia Pearce
Publication Date01 Jan 2009
Cohabitants, Property and the Law: A Studyof Injustice
Gillian Douglas,
n
Julia Pearce
nn
and HilaryWoodward
n
With cohabitation outside marriage becoming increasingly common, the law’s response to the
problems that arise on separation has become a key issue for public and family policy. This
article draws upon the ¢ndings of a qualitative empirical study of how property disputes are
handled when cohabitants separate. It argues that the unfairness of the current lawis best under-
stood as stemming from a failure to recognise the situation that arises as one of unjust enrich-
ment. It shows that the complexity and unpredictability of the law make it di⁄cult to bargain
e¡ectively in the shadow of the law. It suggests that the need for reformgoes beyond the intro-
duction of a discretionary regime, suchas that proposed by the Law Commission, to reformof
conveyancingand property law and practice to facilitate initial, as well as post-separation private
ordering.
INTRODUCTION
For over twenty years, it has been regularly asserted that the law governing the
position of cohabitants who separate is unfair
1
and a need for reform has increas-
ingly been identi¢ed by lawyers, policy makers and politicians.
2
Whilst parts of
the law, notably relating to parenthood,
3
domestic violence,
4
and social security,
5
either expressly or implicitly apply to them, cohabitants remain largely excluded
n
Cardi¡ Universityand
nn
Universityof Bristol.The authors are grateful to Stuart Bridge, Jo Mile s and
Elizabeth Cooke for their comments on a number of the issue s raised in this paper, to Richard Moor-
head who read an earlier draft, and to the anonymous referees.
1 The well-known Court of Appeal decision in Burns vBurns [1984] Ch 317 probably marks the
beginning of this trend. The cas e has been frequently cited ever since as the paradigmexample
of the potential unfairness of property lawand of the lack of protection provided tocohabitants,
especially female cohabitants.The LawSociety, forexample, in Cohabitation:TheCase forClear Law
^ProposalsforReform(London: Law Society, 2002) 1, uses the case in this way. For the argument
thatthe impact of Burns vBurnsi s less damagingto women cohabitants than mightbe thought, see
R. Probert,‘Trusts and the ModernWoman^ Establishi ngan Interest in the Family Home’ [2001]
CFLQ 275 and A. Bottomley,‘From Mrs Burns to Mrs Oxley: Do Cohabiting Women (Still)
Need Marriage Law?’ (2006) 14Feminist Legal Studies18 1.
2 A promise of reformwas made by Harriet Harman MP when she was a minister in the (then)
Department for Constitutional A¡airs in an interview publis hed inThe Guardiano n 31 October
2006, but that stance was superseded bya more cautious approach: see below p 26.
3 The Children Act1989,whilst not deali ngdirectly with the position of cohabiting parents, draws
little disti nction between parents who are married or not. The Child Support Act 1991, which
deals only with the situation where a child is living apart from at least one parent, makes nodi s-
tinction between married and unmarried parents: ss 3 and 54.
4 The Family LawAct 1996, Part IVprovides civil remedies for domestic violence: it does draw a
distinction between spouses/civil partners on the one hand and cohabitants on the other, but this
¢nds expression primarily in relationto the form of property-holding of the parties ratherthan i n
their (lack of ) marital status: see ss 33 ^ 38.
5 The Social Security Contributions a nd Bene¢ts Act1992, s137i ncludes couples living togetheras
husband and wife (and same sex couples living together ‘asi f they were civil partners’) within its
remit.
r2009 The Authors. Journal Compilation r2009 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(1) 2 4^47
from protection in the event of termination of their relationships through break-
down or death.
6
Instead, where a dispute arises over how the property they have
acquired during their relationship is tobe shared, they remaincompelled to rely
on the complexities of trusts and property law.
7
Yet the proportion of unmarried
men and women aged under 60 who enter into a cohabiting relationship has
grown over the past 20 years, from around 10 per cent to 25 per cent
8
and is
expected to continue to rise.
9
Given that cohabiting relationships are statistically
more prone to break down than marriages,
10
the lack of a remedial jurisdiction
capable of ensuring fairoutcomes when cohabiting couples separate has been seen
by manyas a majorweakness in the currentprovision of family law.
11
In particular,
there is no discretionary jurisdiction available, as there is on divorce, to enable a
court to take account of non-¢nancial contributions that a partner might have
made to the ‘welfare of the family, including any contribution by looking
afterthehomeorcaringforthefamily.
12
Calls have therefore been madeto estab-
lish a statutory jurisdiction to provide more £exible remedies which better ¢t
the circumstances of cohabiting couples. Most notably, in 2007, the Law
Commission
13
proposed the creation of such a jurisdiction, to be exercised where
6 A surviving cohabitant maybe able to inherit from the deceased by will, or by making a claim
under the In heritance (Provision for Family and Dependants) Act 1975, but the intestacy rules
make no provision for cohabitants. Despite public opinion surveys indicating general support
for the extension of the intestacy rules to cohabitants, the Law Commission recommended
against reformbecause of the diversity of cohabitation relationshipsa nd the consequent di⁄culty
of arriving at an appropriate scheme: see Law Commission, Cohabitation: The Financial Conse-
quencesof RelationshipBreakdownLaw Com No 307 (2007) paras 6.5- 6.10.It did, however,propose
some amendment to the 1975 Act to bring cohabitants’ claims more closely into line with the
discretionary regime it advocated for separatingpart ners(s ee furtherbelow p 26) and has under-
taken to review the law governing intestacy and inheritance more generally in its Tenth Pro-
gramme of Law Reform: Law Commission,Tenth Programme of Law Reform Law Com No 311
(2 008 ) par a 1.15.
7 Some claims may be made relying on the concept of proprietary estoppel as well: see eg Pas coe v
Tu r n e r [1979]2 All ER 945 CA. Applicationsmay also be made under the Children Act1989, Sch1,
which permits the making of limited money and property orders for the bene¢t of a chil d and
which can be taken advantage of by the child’s primary carer ^ usually the mother.
8 National Statistics,SocialTrends 2008 (London: O⁄ce of National Statistics, 2008) 19. Precise ¢g-
ures were from11% and13% to 24% and 25% for men and women respectively.
9 See J. Haskey, ‘Cohabitation in Great Britain: Past, Present and Future Trends ^ and Attitudes’
(2001) 103PopulationTrends 4.
10 R. Boheim and J.Ermisch suggest that, afterco ntrolling forsocio -economic andother variables,
cohabitants are two to three times more likely than spouses to separate: Breaking Up ^ Financial
Surprises and PartnershipDissolution (Universityof Essex, ISER,1999) cited by the Law Commis-
sion, in Cohabitation:The Financial Consequences ofRelationship Breakdown Law Com Consultation
PaperNo 179 (2006) para 2.36 n 67.
11 There i s an extensivel iterature: for avaluable starting-point, see A. Barlowand G. James,‘Regulat-
ing Marriage and Cohabitation in 21
st
Century Britain’ (2004)67 MLR 143. See also Law Com-
mission (2007) aboven 6, Part 2 and LawCommission (200 6)above n 10, Part5, and S.Bridge (the
Law Commissioner leading the project), ‘Cohabitation: Why Legislative Reform is Necessary’
[2007] Fam Law911.For an earlier call for reform and the development of a reformproposal, see
Law Society, above n 1.
12 Matrimonial Causes Act 1973,s 25(2)(f ).This section also speci¢es a number of other factors that a
court may takei ntoaccount when determi ning a settlement on divorce, such as the parties’future
needs. For full discussion, see N.V. Lowe and G. Douglas, Bromleys Family Law (Oxford: Oxford
UP,10
th
ed, 2007) 1030^1051.
Gillian Douglas, Julia Pearce and Hilary Woodward
25
r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(1) 24^47

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