Cohabitation : Creating a De Facto Relationship for England and Wales

[Salle à confirmer]

Carte blanche à Andy HAYWARD, Associate Professor in Family Law, Property Law and Equity, Durham Law School, Professeur invité à l'IDCEL

Sous la direction de Laurence FRANCOZ TERMINAL, Maître de conférences HDR en droit privé et comparé, Directrice adjointe de l'IDCEL

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Abstract :

The issue of cohabitation reform has received renewed attention following the recent Women and Equalities Committee’s Rights of Cohabiting Partners Inquiry and support for a change in the law expressed last year by the Shadow Attorney General Emily Thornberry MP. But while most academics and campaigners would accept that the case for reforming the law has been won, there remains a dispute over the precise reform model to be adopted. Various options exist and we see opt-out regimes generally being favoured over registration regimes. The debate concerning opt-out regimes largely focuses on whether a difference model should be adopted through creation of a bespoke Cohabitation Act or an assimilation model whereby qualifying cohabitants would have access to pre-existing legal protections such as the redistribution powers in Part II of the Matrimonial Causes Act 1973 and Schedule 5 of the Civil Partnership Act 2004.

Drawing upon comparative family law insights and noting the limitations of difference models evidenced by the experience in Scotland and Ireland, this paper proposes the more radical assimilation-based approach. While arguably a more controversial model, its current use in Australia and New Zealand will be critiqued with a view to revealing how it may offer a more principled, pragmatic and expedient solution to cohabitation reform in England and Wales. More specifically, this paper will critique how cohabitants in England and Wales might qualify for access to Part II of the MCA and whether the existing principles of distribution used by spouses and civil partners require modification.