LAW: RIGHT AND RELATIONSHIP

Law: Right and Relationship



Law: Right and Relationship

Introduction

Whilst the social acceptance of heterosexual cohabitation as a parenting and partnering structure on a par with marriage has been achieved almost universally over the last twenty years in Britain, the uniform extension of marriage-like legal rights to those who cohabit and perform marriage-like functions is still the subject of intense policy debate on which there is no real consensus. Despite clear social trends showing a decline in the numbers who marry and an increase in those who cohabit, the legal vulnerability of cohabiting families continues to be addressed only through ad hoc, piecemeal reforms which have left the law in a state of confusion, uncertainty and complexity.

Even this approach seems now to have foundered, with the Law Commission's recently published discussion paper Sharing Homes3 identifying major problems, yet finding it impossible to recommend a better approach to the regulation of rights of cohabitants and other 'homesharers' in the family home. However, its conclusions confirm the need for consideration of further relationship-based (rather than property law-based) reform:

[I]t is not possible to devise a statutory scheme for determination of shares in the shared home which can operate fairly and evenly across all the diverse circumstances which are now to be encountered …

We accept that marriage is a status deserving of special treatment. However, we have identified, in the course of this project, a wider need for the law to recognise and to respond to the increasing diversity of living arrangements in this country. We believe that further consideration should be given to the adoption - necessarily by legislation - of broader based approaches to personal relationships, such as the registration of certain civil partnerships and/or the imposition of legal rights and obligations on individuals who are or have been involved in a relationship outside marriage.

There have already been two legislative attempts at introducing a European-style Civil Partnerships Register extending to both opposite- and same-sex cohabitants in England and Wales, although neither had government backing nor was likely to reach the statute book directly. The recent government Consultation Paper, Civil Partnership: a framework for the legal recognition of same-sex couples,6 now proposes a marriage-model Civil Partnerships Register which, unlike the models put forward in the two Bills, is restricted to same-sex couples. Ironically, it appears that at least in England and Wales, it may be politically easier to reform the law relating to same-sex cohabitants alone - a group less socially accepted although admittedly more discriminated against than their opposite-sex counterparts - than it is to give even opt-in marriage-like rights to heterosexual couples who live together.

In light of these developments, this article aims to inform the on-going debate about 'couple regulation' and explore the options for reform of cohabitation law available to policy makers. This is done against the backdrop of academic discussion9 in which family law has been held up by Dewar10 as an exemplary case of Galanter's11'new legalism'. This is a concept identifying a new phenomenon within legal ...