Cohabitation Reform in England and Wales: Equality or Equity

Abstract

The law of cohabitation and the succession rights of cohabitants in England and Wales have been subject to separate reviews recently by the Law Commission for England and Wales. Even though the Law Commission's recommendations have not been implemented by the British government, the reviews raise some interesting, if not challenging, issues regarding the need to formally recognize cohabitation. A key argument for extending rights to cohabitants is the increased social acceptance of cohabitation as an alternative form of partnering and child bearing to marriage—that cohabitation, albeit not formalized, may be equally committed and stable and should not therefore be discriminated against. The article is concerned with two issues: the criteria adopted for determining cohabitants' qualification and the benefits that accrue from such qualification. It will examine whether a normative commitment to the promotion of stable, committed, and interdependent cohabitation has helped to secure equality for cohabitants, through more equitable treatment in terms of remedies upon termination of the relationship. The article argues that this objective has not been achieved and that giving cohabitation equivalent value to formalized relationships is heavily dependent on the meanings we attach to norms such as commitment and (inter)dependence.