An increasing number of couples are cohabiting rather than marrying, and the length and nature of their relationships are becoming more similar to those of married couples. When cohabitation relationships break down, the couple may face the same range of problems as on a divorce – including working out what to do with their property and having to cope with reduced financial resources – but there is currently no law equivalent to that on divorce to help couples resolve these. Instead, they must usually rely on the rules of property law.
This study tracked a sample of 29 separating cohabitants to explore how they dealt with property issues arising on the breakdown of their relationship, and interviewed 61 professional practitioners about how they handle such cases. Key findings include the significant risk of injustice arising from the complexity and unpredictability of the law; the difficulty of establishing convincing evidence to support or defend a claim; and the fear of costs. The authors conclude that the current law may serve to perpetuate rather than redress injustice and that reform is both justified and overdue.
The research was funded by the ESRC and conducted during 2004 to 2007. Additional funding was provided by Cardiff University (Vice-Chancellor’s Fund) and the University of Bristol (Law and Policy Research Unit) to facilitate completion and production of this report.
The research was cited in the recent House of Lords case of Stack v Dowden at para.67. Baroness Hale, giving the lead judgment, referred to the empirical evidence from this study, confirming that parties buying properties jointly do not always have a full understanding of the legal effects of their choice.
The Law Commission of England and Wales, who plan to produce their final report on Cohabitation: The Financial Consequences of Relationship Breakdown in July, following consultation in which the research team has been actively involved, have asked to quote from the team’s research report: A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown.
Executive Summary: Dealing with Property Issues on Cohabitation Breakdown (PDF, 216kb)
Final Report: A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown (PDF, 1.1MB)
Presentations of preliminary findings from the study were made to two focus groups, one composed of district judges, and one of barristers, at the University of Bristol, 5 and 6 June, 2006
Pearce delivered a paper outlining the results of the study to the Family Law Section at the Society of Legal Scholars Annual Conference 2006, held at Keele University, 4-7 September 2006
Douglas and Pearce contributed to a seminar on the Law Commission’s proposals for practitioners and policy-makers at the Nuffield Foundation on 18 September 2006.
Douglas gave a staff seminar on the results of the study at the University of the West of England, Department of Law on 4 October 2006
Douglas, Pearce and Woodward gave a briefing on their findings to the Law Commission team dealing with cohabitation law reform (Law Commissioner Professor Stuart Bridge, Professor Elizabeth Cooke and Ms Jo Miles) and took part in a seminar with the team and members of the Society of Legal Scholars Property Law and Family Law subject sections on 24 November 2006.
Douglas and Woodward participated in a joint meeting of the Law Commission and Conveyancing Panel of the Law Society, to discuss issues over conveyancing practice arising from the report.
G. Douglas, ‘Rights Over the Family Home on Cohabitation Breakdown – The Legal Response in England and Wales’ in J Erauw, V Tomljenovic and P Volken (eds) Liber Memorialis Petar Sarcvic: Universalism, Tradition and the Individual (2006) Sellier, European Law Publishers 243-264
G. Douglas, J. Pearce and H. Woodward, ‘Dealing with Property Issues on Cohabitation Breakdown’ [2007] Family Law 36 – 42