Property rights and personal relationships: reflections on reform

Abstract

This paper considers the possible reform of the law governing property rights upon the termination of a close personal relationship, taking as its point of departure the Law Commission's Discussion Paper on Home-Sharing (2002). Having considered the reasons for the inconclusive outcome of the Law Commission's project (and the Discussion Paper's comments on the law of trusts), the paper moves on to consider the possible shape of future reform. It examines first the preliminary question of whether possible legislation should focus on unmarried cohabitees or whether a wider range of relationships should be encompassed (with or without a cohabitation requirement), The paper then looks at the form which a legislative scheme might take, examining the possibility of focusing on contributions (along the lines of New South Wales’ legislation) and the Law Society's proposals for a regime based on‘economic advantage and disadvantage’. The experience of the courts in the matrimonial context is considered with a view to extracting relevant lessons. In general, rather defending one particular model for reform, the paper attempts to identify and explore key issues which will be of relevance across a variety of approaches to reform.