Non-Conjugal Couples and Legislated Cohabitation

Abstract

The question addressed by the chapter is whether cohabitation laws should allow two committed adult friends or siblings to divide property upon breakdown or death – as it does with spouses and civil partners.

The proposed analysis is comparative and covers a range of common law jurisdictions (Australia, New Zealand, Canada, and the UK), where the issue has been discussed more extensively. The focus of the analysis is on ascriptive regimes, where legal consequences are attached regardless of the parties' will. To tackle the issue of whether non-conjugal couples should be included in property sharing regimes, it triangulates three sets of data and arguments. The identity argument surveys existing data regarding laws currently open to non-conjugal couples and whether non-conjugal couples see themselves as an identity group; the choice argument problematizes the possibility for such couples to make choices regarding their legal regime (and of the legal system to forcibly apply such regime); the diversity argument assesses the heterogeneity of non-conjugal couples and the consequent unsuitability of legislated cohabitation.

Ultimately, the chapter considers the most recent developments in the recognition of property protections for another type of non-traditional family, non-dyadic unions. In so doing, it traces some future directions in research around property sharing regimes.

Keywords: property, non-traditional families, polyamory, friendship, cohabitation