Cohabitants, Choice, and the Public Interest

Abstract

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.

Keywords: K19

JEL Classification: cohabitation; family law; law reform; default rules; choice