from protection in the event of termination of their relationships through break-
down or death.
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.
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
expected to continue to rise.
Given that cohabiting relationships are statistically
more prone to break down than marriages,
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.
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
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
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
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
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’
 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, Bromley’s Family Law (Oxford: Oxford
ed, 2007) 1030^1051.
Gillian Douglas, Julia Pearce and Hilary Woodward
r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(1) 24^47