Should have put a Ring on it?' A Comparative Analysis of the Law of Cohabitation in Ireland, Scotland and England and Wales

Date01 January 2012
“Should have put a Ring on it?”
A Comparative Analysis of the Law of
Cohabitation in Ireland, Scotland and
England and Wales
Introductory Remarks
This article offers a comparative analysis of the statutory financial remedies
between separating cohabitants in the three jurisdictions of Ireland, Scotland
and England and Wales. The present time is appropriate for such debate, as
all three jurisdictions are at different stages of the legal process in this
regard: the Family Law (Scotland) Act 2006 has been in operation for five
years, giving an insight into how such legislation functions in practice;
Ireland has recently enacted legislation purporting to deal with this issue,1
prompting debate as to whether the legislation will benefit cohabitants;
England and Wales has so far failed to produce legislation,2although recom -
mendations of the Law Commission have been posited for consideration,3
* BCL (International), LLM Cantab.
1 The Civil Partnership and R elated Rights and Responsibilities of Cohabitants Act,
2010 [hereinafter “the Irish Act”], was adopted in the Dáil on 1 July 2010, passed by
the Seanad Éireann on 8 July 2010 and signed into law by President McAleese on 19
July 2010. The Act applies to both same and opposite sex couples.
2 Separate to the Law Commission recomm endations, the Cohabitation Bill 2009 was
introduced into the House o f Lords by Lord Lester of Herne Hill. It progres sed to
committee stage on 30 April 2009, but the Governme nt Whip’s Office was not
prepared to grant more time to th e Bill. This Bill, a private member’s bill introduced
three years ago, will not be discussed in this article.
3 Following consi deration of the Law Commissio n’s recommendations, the then
Parliamentary Under-Secretary of State in the Ministry of Justice, Bridget Prentice MP,
released a ministerial statement on the 6 March 2008 which stated that the then
government “proposed to await the outcome” of research that was to be conducted
by the Scottish Executive in relation to the cost of the scheme and its benefits. An
empirical research was undertaken exami ning the legal practitioner’s experiences of
the first three yea rs of the Scottish Act by Miles, Wasoff and Morda unt, Legal
Practitioner’s Perspectives on the cohabitation provisions of the Family Law (Scotland)
Act 2006 (2010) [hereinafter “the Scottish Act”], available at
projects/rp_coh abitation.html. However, t his res earch w as not consider ed to be
sufficiently conclusive. On the 6 September 2011, the Parliamentary Under Secretary
of State, Ministry of Justice, Jonathan Djanogly, stated that:
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providing the opportunity for further comparisons and recommendations as
to how legislation should proceed in light of the experiences of the former
two jurisdictions.
The four principal areas of discussion in this article consist of: the type of
scheme adopted, detailing the advantages and disadvantages of a default
scheme; the eligibility criteria, providing criticisms of each jurisdiction’s
requirements, especially in relation to minimum duration requirements; the
basis of relief, outlining the different focus in each jurisdiction and
providing a critical analysis of each; and the means of opting-out of the
scheme, discussing the issue of cohabitation contracts and advising on
appropriateness of formalities. I critically analyse how each jurisdiction has
reacted to the issue of cohabitation and the problems which arise on
relationship breakdown. In concluding, I consider whether the jurisdictions
have produced legislation (or recommendations) which adequately address
these issues, or whether there remains scope for improvement.
Why Legislate?
One may ask why such legislation is even contemplated for cohabitants. Is
cohabitation an area better suited to self-regulation, or is there merit in a
regulatory approach? Dnes warns “considerable caution” must be exercised
“over inadvertently making the cure worse than the disease by formulating
policy that does not examine what amounts to regulatory impact.”4The
decision to legislate is a contentious one. Though the decision has been
made in Scotland and Ireland, there is still debate in England and Wales,
and so I will briefly address some issues in order to conclude, at least for our
three jurisdictions, that a statutory regime is necessary.
Common Law Redress
Prior to the Scottish Act, cohabitants were forced to rely on the law of
unjustified enrichment where “the consequent enrichment of the defender,
even if the loss were greater” was reversed where it could be shown that the
enrichment was unjustified.5The law was, however, seen as inadequate, a
“Should have put a Ring on it?” 123
The finding of research into the Scott ish legislation do not provide us with a
sufficient basis for a change in the law. Furthermore, the family justice system is in
a t ransitional perio d, with major reforms already on the horizon. We do not
therefore intend to take forward the Law Co mmission’s recommendations for
reform of cohabitation in this parliamentary term.
4 Dnes, “Rational decision making and intimate cohabitation” in J. Miles and R.
Probert, (eds), Sharing Lives, Dividing Assets (Oxford: Hart Publishing, 2009), p.301
5Wasoff, Mordaunt, and Miles, Legal Practitioner’s Perspectives on the Cohabitation
Provisions of the Family Law (Scotland) Act 2006(Nuffield Foundation, 2010), p.17
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key factor being the absence of recognition for domestic contributions. The
Irish courts have for years relied on to the law of property, trusts or
proprietary estoppel, and then only if cohabitants happened to fall within
the respective criteria. In England and Wales, the use of constructive trusts
and piecemeal legislation has been described as complex, uncertain and
In short, trust law was not developed with “intimate cohabitation in
mind, and has only been pressed into service by the courts in the absence of
any better option”,7while not recognising “the diversity of the arrangements
made in personal relationships”.8In the words of Rebecca Probert, “a good
legal system is one that does not rely on litigation to establish entitlement.”9
Changing Social Mores and the Institution of Marriage
Society in the United Kingdom and Ireland has changed greatly in recent
decades. Demographic data illustrates a clear growth in cohabitation,10
including an increase in births outside of marriage.11 “Changing social
mores have helped modify the traditional attitude that the nuclear conjugal
family was the expected setting in which to raise children.”12 The protection
of the traditional family and marriage should be “disentangled” from the
“issue of ensuring that individuals do not suffer financial hardship unfairly
when their relationship ends.”13 Irrespective of one’s personal views, “the
fact that cohabitation does exist, and that many people cohabit for long
periods of their life, cannot be ignored.”14 Attaching legal rights to cohabiting
6 See Bailey-Harris, “Divid ing t he ass ets o n bre akdown of r elationships outside
marriage: challenges for reformers” , in Dividing Assets on Family Breakdown
(Jordan Publishing), p.76, The Law Commission Consultation Paper, “Cohabitation:
the Fin ancial Consequences of Relationshi p breakdown (2 006), p.71 (h ereinafter
referred to as LC Consultation Paper), and Barlow and James, (2004), p.152
7 Mee, “A critique of the Law Reform Commission’s Report on the Rights and Duties
of Cohabitants’, 29 Irish Jurist 74, (2004), p.91
8 Bailey-Harris, “Dividing the assets on breakdown of relationships outside marriage:
challenges for r eformers”, in Bailey-Harris, Dividing Assets on Family Break down
(Jordan Publishing, 1998), p.81
9 Probert, “Cohabit ation: Current Legal Solutions”, in Current Le gal Problems
(Oxford University Press, 2009), Vol. 62, p.343
10 See general ly Barlow and James, “Regulati ng Marriage and Cohabitation i n 21st
Century Brita in”, 67, Modern Law Review, (2004), and Sm art and Stevens,
“Cohabitation Breakdown” (London: Family Policy Studies, 2000)
11 Gibson, “Changing Family Pat terns in England and Wales over the Last 50 Years”,
S.N. Katz, J. Eekelaar, and M. MacLean, Cross Currents: Family Law and Policy in
the United States and England (Oxford University Press, 2000), p.32
12 Ibid, p.31
13 The Law Commission of England and Wales Consultation Paper N o. 179,
“Cohabitation: Then Financial Consequences on of Relationship Breakdown”, p.123.
Hereinafter “LC Consultation Paper”
14 J Scherpe, “The Legal Status of Cohabitants—Requirements for Legal Recognition”,
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