No legal stasis on cohabitation

Robert Leckey

Dean and Samuel Gale Professor of Law, Faculty of Law, McGill University, Canada

Scholars and law commissions in many jurisdictions have weighed in on the cohabitation question – whether to extend family law to unmarried couples and, if so, how. Legislatures in some places have acted. In others, they have not – due to factors including a desire to protect or privilege marriage, the difficulty of devising mechanisms palatable to their electorate, lack of political will or priority, and inertia. This year marks a decade since the Law Commission for England and Wales released its major report on the subject. Lawyers and political scientists closer to the ground are better placed than I to analyze the inertia at Westminster. What Yann Favier and I bring to the conversation in our recent paper is scrutiny of the assumption that legislative inertia indicates or secures legal stasis. Our intervention studied the cases of France and my home province of Quebec to highlight changes to cohabitation and marriage despite avowed legislative policy against law reform. Our call for alertness to indirect, informal law reform is directly relevant to other jurisdictions.

Our starting point was the prominence in positive law and legal scholarship of a handful of boundaries. We chose the boundaries between marriage and cohabitation, family law and other private law, private law and public law, and law and politics. To focus our gazes, we drew on strands of theory not always present in family lawyers’ literature on cohabitation. We found rich resources in critical work by social and political geographers, notably the idea of boundary as process and as constantly shifting, rather than as fixed entity.

The geographers’ conceptual discussion of boundaries helped us to flesh out how legislative determinations to retain a consequential difference between marriage and cohabitation has effectively shifted and redrawn the boundary between family law and the law of obligations, among others. That is, in efforts to respond to perceived injustices arising from the social practice of cohabitation, judges have adapted the general private law. In our jurisdictions of the civil law, judicial innovations for former cohabitants have pressed the boundaries of unjust enrichment, for example by developing evidentiary presumptions applicable only to former cohabitants. In the common law of England, they have advanced the law of trusts or distorted it – views vary. I draw on English and Canadian cases to examine the institutional limits on judicial law reform in a forthcoming paper.

Developments such as those in unjust enrichment suggest that judges do not fully accept the justifications underlying the legislative policy of declining to extend family law to cohabitants. The reason is that adjusting unjust enrichment for cohabitants seems to take as premise the high degree of interdependence within cohabiting couples. This premise runs against the legislative approach by which those who have not chosen to marry are autonomous agents who should know their legal position and can deploy instruments of the private law, such as contract and wills, if they wish to alter their entitlements.

Favier and I conclude that, in our selected contexts where official legislative policy preserves marriage intact, in opposition to unmarried conjugality, legal developments have nevertheless moved some boundaries. Such developments have also highlighted the contingent, fragile character of other boundaries. As we note, the record suggests that preserving marriage’s traditional status and other legal boundaries intact is not an option – although public debates rarely acknowledge this point candidly.

The paper with Favier is part of a larger project. Another piece – more quantitative than much of my research – reports findings from a painstaking analysis of reported judgments from Canadian provinces that have assimilated cohabitants into marriage’s deferred sharing of gains. Specifically, the paper compares the litigants under the general private law prior to the statutory reform with the litigants post-reform.

A major observation is the intensity of dispute over the duration and character of cohabitation once the legislature has increased its financial consequences. Even where cohabitants and married spouses are ostensibly treated identically, cohabitants remain subject to the distinctive evidentiary burden of proving their relationship. Also, a relatively permissive threshold period seems not to have flooded the courts with frivolous claims resulting from brief unions, as some opponents of cohabitation reform fear. I read the data as suggesting that proponents and opponents of reform might temper their strongest claims.

Family scholars have for decades looked across national boundaries to compare legislative techniques dealing with adult relationships. My research takes legislative, judicial, and scholarly activity around cohabitation as rich with potential lessons for researchers. Consistent with this journal’s critical aims, I test prevailing orthodoxies and seek to draw out broader insights about how law and social practice interact.

With Yann Favier, Robert Leckey is the author of ‘Cohabitation’s Boundaries and the Confines of Tradition’ (2016) 25:5 Social & Legal Studies 525–543.  Robert Leckey is the Dean of the Faculty of Law at McGill University, and has research interests in constitutional law, family law and comparative law.

Image credit: Andrew Hill (Creative Commons CC BY-SA 2.0)


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