Cohabitation and intestacy: public opinion and law reform

Journal of Social Welfare and Family Law, 2016

Feminist Legal Studies, 2006

Deutsches und Europ�isches Familienrecht, 2000

Intersentia eBooks, 2017

Within Europe, the common law jurisdictions of England and Wales, Scotland and the Republic of Ireland have not taken a unified approach in their legal response to the increasingly common social phenomenon of unmarried cohabitation. Whereas both Scotland and Ireland have recently legislated to provide financial provision remedies as between cohabiting partners on relationship breakdown, in England and Wales (and in Northern Ireland), there are still no family law remedies for financial provision when such relationships break down. This is despite the Law Commission for England and Wales recommending reform in 2007 (see Cohabitation: the financial consequences of relationship breakdown, Law Com No 307, CM 7182, (2007) London: TSO). Interestingly, in the recent Supreme Court decision of the Scottish case of Gow v Grant (Scotland) [2012] UKSC 29, the Supreme Court Justices expressed their frustration at this state of affairs, calling loudly for English law to be changed in line with that of Scotland. Yet so far these calls have fallen on deaf ears. Thus whilst England and Wales has now embraced legal recognition of same-sex marriage, heterosexual cohabitation continues to be regarded by government as a social problem and a threat to formal marriage, with both the Scottish approach to compensating economic disadvantage within cohabitation relationships and an extension of civil partnerships to different-sex couples having been recently rejected once again by government. Drawing on socio-legal research evidence and discussion (including the continued existence of the 'common law marriage myth'), this paper will explore these legal and policy developments in all three jurisdictions against the background of the changing socio-demographic nature of family structures within these societies. It will consider whether the piecemeal legal response to cohabitation in England and Wales provides adequate remedies, given policy objectives, or alternatively whether the Irish and/or Scottish solutions could be appropriately adopted within England and Wales (and Northern Ireland) or indeed, whether a different approach is called for. 2. INTRODUCTION At the beginning of the 19th century, Napoloen reportedly said, 'Cohabitants ignore the law, so the law ignores them'. Love and marriage, according to the received wisdom embedded in popular culture in the mid 20th century, were still felt to go together 'like a horse and carriage'. 1 Certainly, in most jurisdictions within Europe this hierarchy of relationship recognition, with marriage firmly at the top, remains in place, with jurisdictions increasingly now extending this gold standard to same-sex 1 So says the famous popular Frank Sinatra song, dating back to 1955 (released by Capitol records).

Law and Human Behavior, 1998

Laws of intestate succession determine how the estate of a person who dies without a will is distributed. Researchers have struggled with the question of how to infer the donative intent of persons who die intestate. Based on an empirical study of unmarried committed partners, we compare the usefulness of two methods of social research for informing intestacy law: will studies and interviews with living persons about their preferences for estate distribution. The results indicate that for some groups of unmarried committed partners, will studies may not adequately reflect the extent to which intestate decedents wish their partner to share in their estate. In addition, the results demonstrate a close correspondence between respondents' actual wilts, when they had them, and their distributive preferences on hypothetical scenarios. These findings are discussed as they relate to an examination of which sources of social scientific evidence are most useful in informing the law of intestacy. American families and households have undergone numerous changes in the past several decades. These changes include declining rates of marriage and rising rates of divorce and nonmarital childbearing (see Bumpass, 1990, for a review). Coincident with these changes has been a substantial rise in the rate of unmarried cohabitation. Approximately 7% of the nation's couples are in unmarried committed relationships, including about 1.7 million gay and lesbian couples (Saluter, 1994). Approximately one fourth of the population 19 and older have cohabited at some time; among those in their early 30s, nearly half have cohabited at some time (Bumpass & Sweet, 1989).

British Social Attitudes: The 24th Report, 2008

International Journal of Law, Policy and the Family, 2021

Western jurisdictions have adopted remarkably diverging legal approaches to address unmarried cohabitation, ranging between contractual approaches, registered partnerships, and default regimes. This article explores to what extent the large diversity in cohabitation law is prompted by socio-demographic factors, legal tradition and family ideology. The experiences from Belgium, Sweden, England and Wales, New Zealand, and the United States suggest that cohabitation law is mostly ideologically motivated, with socio-demographic factors only having a minor impact. Diverging views on the preservation of the traditional family and the autonomy versus protection of the vulnerable partner-spectrum, in particular, seem to form the backbone of a jurisdiction’s preference for a contractual approach, a registered partnership, or a default regime. Path dependency brings an important nuance to this model. Because existing rights and benefits often prove difficult to turn back, a shift in policy ge...

2011

This article assesses recent proposals for the reform of cohabitation law by drawing on two interdisciplinary empirical studies. The first, sponsored by the Ministry of Justice included a survey (n=102) of people who had accessed the 'Living Together Campaign' website, investigating legal awareness, attitudes to cohabitation law and financial practices. The second, funded by the Nuffield Foundation, included a nationally representative survey (n=3197) investigating attitudes towards marriage, cohabitation and their legal and financial consequences. Each survey was followed up with semi-structured interviews which explored financial practices, processes of decision-making, understandings of commitment, awareness of and attitudes to current cohabitation law and possible law reform.

The findings of a project on marriage and cohabitation, which included a module of questions in the British Social Attitudes Survey 2001. Nuffield Foundation