Cohabitants, Choice, and the Public Interest
in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children's and Family Law (OUP), 2018, 115-133
31 Pages Posted: 10 Dec 2015 Last revised: 30 Jan 2018
Date Written: December 6, 2015
Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions – such as what people who live together should owe one another and the balance between choice and protection – through a lens of legal attention to institutional matters such as legal sources and the respective roles of judges and legislatures. The examples used are Canadian cases on unjust enrichment and English cases quantifying beneficial interests in cohabitants' jointly owned home. A major theme is the limits on judicial law reform in the face of social change, both in substantive scope and in the capacity to acknowledge the state’s interest in intimate relationships. The chapter aims to relativize the focus on choice so prominent in academic and policy discussions of cohabitation and to highlight the character of family law, entwined with the general private law of property and obligations, as a regulatory system.
JEL Classification: cohabitation; family law; law reform; default rules; choice
Suggested Citation: Suggested Citation