1. This proposal was included in the Queen's Speech in November 2003, following the publication of a Consultation Paper on the topic in June 2003: Department of Trade and Industry, Women and Equality Unit Civil partnership: A framework for the legal recognition of same sex couples. See also Department of Trade and Industry, Women and Equality Unit Responses to Civil partnership: A framework for the legal recognition of same sex couples (November 2003). Cf R Wintemute and M Andenaes (eds) Legal Recognition of Same Sex Partnerships (Oxford: Hart Publishing, 2001); K Waaldijk ‘Taking Same-Sex Partnerships Seriously - European Experiences as British Perspectives?’ [2003] Int Fam Law J 84.

2. Heterosexual couples will not be entitled to register as civil partners and, even if the proposal were changed to permit them to do so, it is likely that the take-up rate would be low. For comparative statistics, see eg K Waaldijk ‘How the Road to Same-Sex Marriage Got Paved in the Netherlands’ in Wintemute and Andenaes, n 1 above, p 463.

3. Law Com No 278, July 2002 (henceforth, the Discussion Paper). See S Bridge ‘The Property Rights of Cohabitants - Where Do We Go From Here?’ [2002] Fam Law 743; R Probert ‘Sharing Homes - A Long-Awaited Paper’ [2002] Fam Law 834; J Miles ‘Property law v family law: resolving the problems of family property’ (2003) 23 LS 624. Note also The Law Society Cohabitation - The Case for Clear Law (July 2002) (henceforth, the Law Society Report) and the New South Wales Law Reform Commission Discussion Paper 44: Review of the Property (Relationships) Act, 1984 (NSW) (April 2002) (henceforth, the NSW Discussion Paper). Cf South African Law Reform Commission Discussion Paper 104: Domestic Partnerships (2003); Irish Law Reform Commission Consultation Paper on the Rights and Duties ofCohabitees (2004).

4. See the comments of Lord Justice Thorpe ‘Property Rights on Family Breakdown’ [2002] Fam Law 891 at 894.

5. There was no requirement that the home in question be the ‘only or principal home’ of the parties (Discussion Paper, n 3 above, p 44). Homes which were rented, rather than owned, by their occupiers were not intended to be covered (p 2). Minors would not have been able to claim under the scheme (p 45).

6. Discussion Paper, n 3 above, p 45.

7. To encourage this, the Commission envisaged limiting courts to assessing shares in bands of five per cent (5%, 10%, 15% etc). See Discussion Paper, n 3 above, p 49.

8. See Discussion Paper, n 3 above, p 47 for the scheme's proposed treatment of gifts.

9. See further text following n 172 below.

10. Discussion Paper, n 3 above, p 43.

11. See generally Miles, n 3 above.

12. See further text accompanying nn 24–25 below. It is unfortunate that there is no attempt in the Discussion Paper to make explicit the arguments against relying on a very broad judicial discretion.

13. References in this paper to ‘informal’ relationships are not intended to imply that such relationships are necessarily casual or lacking in commitment, simply that they have not been formalised in marriage.

14. Discussion Paper, n 3 above, p 62.

15. Cf Bridge, n 3 above, at 744, expanding further on the point which he states was ‘implicit’ in the Discussion Paper's arguments.

16. Some writers prefer the term ‘cohabitants’. Neither word exactly trips off the tongue. For what this is worth, ‘cohabitee’ seems to be far more popular with the courts, with a LEXIS search (carried out in January 2004) of ‘UK Cases, Combined Courts’ giving 456 results for ‘cohabitee’ as opposed to only 71 for ‘cohabitant’.

17. Discussion Paper, n 3 above, p 62.

18. For criticism of this doctrine, see J Mee The Property Rights of Cohabitees (Oxford: Hart Publishing, 1999) ch 5. See further text following n 89 below.

19. See Miles, n 3 above, at 630–631.

20. See the Property (Relationships) Act 1984.

21. Cf generally, C Schneider ‘Discretion and Rules: A Lawyer's View’ in K Hawkins (ed) The Uses of Discretion (Oxford: Clarendon, 1992) ch 2.

22. See J Dewar ‘Reducing Discretion in Family Law’ (1997) Aust J Fam Law 309; J Dewar ‘Family Law and its Discontents’ (2002) 14 Int J Law, Policy and the Family 59.

23. As noted by Miles, n 3 above, at 626.

24. Unfortunately, the predictability which was hoped for in the putative scheme, and for which much else was sacrificed, was not attainable in reality. Cf n 119 below.

25. See NSW Discussion Paper, n 3 above, para 5.40.

26. See the discussion of the scheme's emphasis on ‘contributions’ at the expense of ‘sacrifices’ (text to and following n 117 below), the relationship between the scheme and the existing equitable rules (text to and following n 173 below) and the problems related to the issue of retrospectivity (text to and following n 181 below).

27. There is also an argument that it is under-inclusive, in that it excludes close relationships where the parties do not happen to cohabit. See paragraph of text following n 77 below.

28. Discussion Paper, n 3 above, p 58.

29. Discussion Paper, n 3 above, p i.

30. Sees 15(1) and s 19(2).

31. ‘Fair shares for home sharers?’ [2002] NLJ 1192 at 1192. See also S Bridge ‘The Property Rights of Cohabitants - Where Do We Go From Here?’ [2002] Fam Law 743 at 744.

32. Discussion Paper, n 3 above, pp 52–57.

33. See Discussion Paper, n 3 above, pp 51–52 and 55 for discussion of these possible control mechanisms.

34. Unfortunately, the examples in the Discussion Paper appear ill-chosen to make the Law Commission's point. For example, if one employed just one of the ‘control mechanisms’ - making a deduction for enjoyment of ‘free’ accommodation - the son's claim against his parents in Example 1 would be completely eliminated, while the unmanied mother's share in Example 2 would be decreased only slightly (from 34% to 31%).

35. See Discussion Paper, n 3 above, pp 56–57.

36. See also the cross-references in n 26 above.

37. Discussion Paper, n 3 above, p 3.

38. Discussion Paper, n 3 above, p 3.

39. Cf Peter v Beblow [1993] 1 SCR 980 at 1020: such a contribution ‘seeps throughout all of the assets of the defendant.’

40. See text following n 42 below.

41. Cf Muschinski v Dodds (1985) 140 CLR 583 at 615, per Deane J (suggesting that it was open to the court to stipulate that a constructive trust would have prospective effect only); P O'Connor ‘Happy Partners or Strange Bedfellows: The Blending of Institutional and Remedial Features in the Evolving Constructive Trust’ (1996) Melb ULR 735 at 751–761.

42. See Mee, n 18 above, pp 312–313. Of course, one might not feel much sympathy for creditors such as banks and might believe that they are in a position to take steps to protect their interests (cf Miles, n 3 above, at 646 n 95). However, in the absence of any positive rationale for doing so, these considerations do not justify allowing remedies under a legislative scheme to defeat the rights of creditors.

43. See eg Discussion Paper, n 3 above, p 6.

44. As the Discussion Paper points out (n 3 above, p 20), where a house is being purchased in joint names the Land Registry already insists on the inclusion of an express declaration. It is not, however, normal practice to make any such declaration where the parties begin living together in a home which already belongs to one of them.

45. See Pertitt v Pettitt [1970] AC 777 at 813, per Lord Upjohn; Goodman v Gallant [1986] Fam 106. It is suggested in a footnote on p 21 of the Discussion Paper (n 3 above) that fraud, ‘would appear to include “actual” undue influence: see CIBC Mortgages Plc v Pitt [1994] 1 AC 200 at 209, per Lord Browne-Wilkinson’. The implication is that presumed undue influence would not be a basis for challenging an express declaration. This is surely mistaken: an express trust will be of no effect if it is set aside on the basis of undue influence (of whatever variety).

46. Discussion Paper, n 3 above, p 22.

47. See Carlton v Goodman [2002] 2 FLR 259 at 273, per Ward LJ (‘It is not very difficult to do’).

48. See Discussion Paper, n 3 above, p 21, citing Pink v Lawrence (1978) 36 P & CR 98.

49. The Law Society Report, n 3 above, p 79 suggests, apparently on the basis of a misinterpretation of Layton v Martin [1986] 2 FLR 227, that cohabitation contracts are not binding on the courts. The better view (although the matter has not been authoritatively settled) is that they are enforceable in England and Wales. See S Cretney, J Masson and R Bailey-Harris Principles of Family Law (London: Sweet and Maxwell, 7th edn, 2002) pp 135–136; Mee n 18 above, pp 30–32. Contrast Ennis v Butterly [1996] IIR 426. Cf E Kingdom ‘Cohabitation Contracts and the Democratization of Personal Relations’ (2000) 8 Feminist Legal Studies 5.

50. Discussion Paper, n 3 above, p 61.

51. The Discussion Paper, n 3 above, does identify (pp 60–61) a ‘lack of a unifying principle’ in its scheme. Oddly, however, what is seen as the essential problem is not that the scheme should take account of contributions made after the acquisition of the home but rather that it should include home-making contributions. The Law Commission assumes that homemaking cannot be seen as constituting, in economic terms, a contribution to the acquisition of a home. This assumption resurfaces in the Commission's proposals for judicial reform of the common intention trust. See text following n 92 below.

52. Discussion Paper, n 3 above, p 52ff. See text following n 31 above.

53. It would be absurd if a claimant were to be in a far better position if, instead of contributing (say) £100,000 in the form of an opening equity, he or she were over a period of years to pay £250,000 in mortgage instalments to create the same equity in the property.

54. The Irish courts operate a system of this nature. See Mee, n 18 above, ch 3, esp pp 75–80. Cf P Sparkes ‘Quantification of Beneficial Interests: Problems Arising from Contributions to Deposits, Mortgage Advances and Mortgage Instalments’ (1991) 11 OJLS 39.

55. Cf P Parkinson ‘Reforming the Law of Family Property’ (1999) 13 Aust J Fam Law 117 at 122–127.

56. [2003] Fam 103.

57. [2001] 1 AC 596.

58. See text to and following n 156 below.

59. Discussion Paper, n 3 above, p 86.

60. Discussion Paper, n 3 above, p 87. Note that the reforms in New South Wales were based on a detailed report by the New South Wales Law Reform Commission, De Facto Relationships (Report 36, 1983).

61. For relevant empirical research, see A Barlow, S Duncan, G James and A Park ‘Just a Piece of Paper? Marriage and Cohabitation’ in Park et al (eds) British Social Attitudes, 18th Report (London: Sage, 2001) ch 2; M Hibbs, C Barton and J Beswick ‘Why Marry? - Perceptions of the Affianced’ [2001] Fam Law 197. Cf J Lewis ‘Debates and Issues Regarding Marriage and Cohabitation in the British and American Literature’ (2001) 15 Int J Law, Policy and the Family 159.

62. Cf Mee, n 18 above, p 314. In Department of Trade and Industry, Women and Equality Unit Responses to Civil partnership: A framework for the legal recognition of same sex couples (November 2003) para 3.6, the Department of Constitutional Affairs was said to be leading a cross-governmental working group to explore how best to raise public awareness as to the consequences of cohabitation.

63. See Barlow et al, n 61 above, p 46.

64. Cf L Baker and R Emery ‘When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage’ (1993) 17 Law and Human Behaviour 439; C Rotherham Proprietary Remedies in Context (Oxford: Hart Publishing, 2002) pp 224–225.

65. Cf R Probert ‘Home Sharing - Widening the Debate’ [1999] Fam Law 153.

66. New South Wales' Property (Relationships) Act 1984, as amended in 1999, now also covers (according to s 5) ‘a close personal relationship … between two adult persons … one or each of whom provides the other with domestic support and personal care’. This is understood to refer primarily, if not exclusively, to (unpaid) carers: see NSW Discussion Paper, n 3 above, paras 6.7–6.13. The expansive definition of ‘domestic relationship’ in the Australian Capital Territory's Domestic Relationships Act 1994, s 3(1) includes no cohabitation requirement and is wide enough to encompass various forms of non-sexual relationship.

67. For background, see eg E Walsh ‘Dear Lady Olga’ [1995] Fam Law 658.

68. J Millbank ‘Domestic Rifts: Who is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 Aust J Fam Law 163 at 182.

69. Beyond Conjugality: Recognising and supporting close personal adult relationships (December 2001), available at http://www.lcc.gc.ca.

70. Thus, the Law Commission of Canada favoured tailoring each legislative definition of a personal relationship to the legislative purpose at hand (n 69 above, ch Three, Recommendations 4 and 5). This contrasts with the recent proposal of the Law Society (n 3 above, p 83; supported by Bridge, n 3 above, at 745) that there should be a single definition of unmarried cohabitation for the purposes of all legislative provisions, thus effectively creating a new status in the law.

71. See n 69 above, ch Four, text to n 51 (quoting N Cott Public Vows: A History of Marriage and state (Cambridge, Mass: Harvard University Press, 2000) p 212). Cf Nova Scotia (A-G) v Walsh [2002] 4 SCR 325 (Can SC), reversing the decision of the Nova Scotia Court of Appeal (2000) 186 DLR (4th) 50 that the Canadian Charter of Rights and Freedoms was violated by the exclusion of unmarried couples from the property adjustment provisions of divorce legislation.

72. Above n 68, at 181–182.

73. Millbank, n 68 above, at 181–182 does not refer to the possibility that the person being cared for might, for a protracted period before death, be mentally incompetent and, therefore, unable to come to any arrangement with the carer. Leaving such a carer to a remedy in the law of succession could be seen as unjust.

74. Certainly there is force in Millbank's suggestion (n 68 above, at 181) that one could not expect a court to order the sale of a property ‘from under an incapacitated and/or elderly person in order to pay a share to the carer’.

75. Above n 69, ch Four, text to n 26.

76. Cf Millbank, n 68 above (low use of ACT legislation thus far by, inter aha, non-cohabiting couples and non-couples); L Willmott, B Mathews and G Shoebridge ‘Defacto relationships property adjustment law - A national direction’ (2003) 17 Aust J Fam Law 37 at 58.

77. In New South Wales, after 15 years the 1984 Act was extended to include same-sex couples (which it is suggested here should be included from the start). However, without much debate, the definition was also extended to include (in effect) carers (see n 66 above). The New South Wales Law Commission is now considering more closely the question as to which, if any, types of non-couple relationship should be included. See NSW Discussion Paper, n 3 above, ch 2.

78. See the NSW Discussion Paper, n 3 above, para 2.64.

79. NSW Discussion Paper, n 3 above, para 2.65.

80. Law Commission Discussion Paper, n 3 above, p 58.

81. Eg the proposals in the Law Society Report, n 3 above, p 15 are restricted to couples who have lived together for two years or who have a child. Cf Property (Relationships) Act 1984 (NSW), s 17(2).

82. See generally R Bailey-Hanis ‘Financial Rights in Relationships Outside Marriage: A Decade of Reforms in Australia’ (1995) 9 Int J Law and the Family 233; R Bailey-Harris ‘Law and the unmarried couple - oppression or liberation?’ (1996) 8 CFLQ 137; A Barlow and C Lind ‘A matter of trust: the allocation of rights in the family home’ (1999) 19 LS 468; R Probert and A Barlow ‘Displacing marriage - diversification and harmonisation within Europe’ (2000) 12 CFLQ 157; L Fox ‘Reforming family property - comparisons, compromises and common dimensions’ (2003) 15 CFLQ 1; Cretney, Masson and Bailey-Harris, n 49 above, pp 223–226.

83. On this doctrine, see Mee, n 18 above, pp 117–174. See also eg D Hayton ‘Equitable Rights of Cohabitees’ [1990] Conv 370; S Gardner ‘Rethinking Family Property’ (1993) 109 LQR 263; N Glover and P Todd ‘The Myth of Common Intention’ (1996) 16 LS 325.

84. Discussion Paper, n 3 above, p 62.

85. For detailed consideration of the relevant case law, see Mee, n 18 above, pp 184–293.

86. Discussion Paper, n 3 above, p 67.

87. Which is itself a less extensive doctrine than the unified doctrine of equitable estoppel recognised by the High Court of Australia in Waltons Stores (Interstate) v Maher (1988) 164 CLR 387. See eg P Parkinson ‘Estoppel’ in P Parkinson (ed) The Principles of Equity (Sydney: Lawbook Co, 2nd edn, 2003).

88. See Mee, n 18 above, pp 297–301.

89. One obvious lesson would have been the undesirability of developing a statutory scheme which relied exclusively on the device of the trust and did not make provision for the award of monetary compensation when this would be more appropriate. Cf Mee, n 18 above, pp 192–193 (Canada); p 251 (Australia); pp 291–292 (New Zealand).

90. [1991] 1 AC 107.

91. Discussion Paper, n 3 above, p 68.

92. Discussion Paper, n 3 above, p 68. The Law Commission argued (p 68) that ‘it would be wholly unsatisfactory if a person were to obtain a beneficial interest where it was made extremely clear that a particular contribution, by financial or other contribution, would not be met this way’. However, a reliance on actual common intention is by no means the only way to avoid this result: see eg Gillies v Keogh [1989] 2 NZLR 327 (constructive trust based on ‘reasonable expectations’ precluded where legal owner had made clear her unwillingness to share ownership of the disputed property).

93. This suggestion is based, in part, on the rather tenuous authority of Judge Mostyn QC's decision in Le Foe v Le Foe [2001] 2 FLR 270 (noted by M Thompson [2002] Conv 273). On the limited value of the concept of ‘enabling’ in this context, see Mee, n 18 above, pp 82–83.

94. See Springette v Defoe [1992] 2 FLR 388.

95. Contrast the rejection by Stuart Bridge, the Law Commissioner with particular responsibility for the Discussion Paper, in a different context of the idea of introducing ‘still further discrepancy between legal fiction and factual reality’: n 3 above, at 744.

96. Le Foe v Le Foe [2001] 2 FLR 970 at 982 per Judge Mostyn QC.

97. Discussion Paper, n 3 above, p 69, citing Midland Bank v Cooke [1995] 2 FLR 915 at 926, per Waite LJ.

98. [1971] AC 886.

99. [1971] AC 886 at 909. In part, the ‘holistic approach’ to quantification has been tainted because it was advocated by Waite LJ in Midland Bank v Cooke [1995] 2 FLR 915, a case where the inference of a common intention on the basis of the parties' conduct should have been impossible because the parties had expressly stated in evidence that they had never given the matter any thought.

100. [1986] 1 Ch 638.

101. For discussion of this position, see Mee, n 18 above, pp 171–173. Under this view, unless there has been an express common intention, the claimant's share must always be proportionate to his or her contributions.

102. Note eg the approach of the Irish courts which recognises indirect contributions as sufficient to trigger a resulting trust (in the proportion represented by the claimant's contribution). For detailed discussion, see Mee, n 18 above, pp 66–92.

103. This more complex understanding would see a financial contribution not simply as evidence of an intention on the part of the contributor to obtain a proportionate share in the ownership (as under a resulting trust analysis) but rather as evidence that there must have been a prior common intention between the parties that the contributor would gain a share. Detrimental reliance on this common intention would lead to the award of a beneficial interest on the basis of estoppel principles (or, on an alternative view, the principle in Rochefoucauld v Boustead [1897] 1 Ch 196). See further on the theoretical basis for the common intention trust, Mee, n 18 above, pp 151–173.

104. Which, if one adopted the Law Commission's other recommendation, could be an indirect one.

105. [1995] 2 FLR 915.

106. For a discussion of a possible way forward in equity, and the attendant difficulties, see Mee, n 18 above, pp 307–316. Cf J W Harris ‘Justice, Doctrine, and Home-Sharing’ (1999) 19 OJLS 421; Rotherham, n 64 above, pp 197–244.

107. Property (Relationships) Act 1976, as amended in 2001. See generally B Atkin ‘The rights of married and unmarried couples in New Zealand - radical new laws on property and succession’ (2003) 15 CFLQ 173; B Atkin and W Parker ‘De Facto Property Developments in New Zealand: Pressures Impeded Progress’ in J Dewar and S Parker (eds) Family Law - Processes, Practices and Pressures (Oxford: Hart Publishing, 2003) ch 29; Willmott, Mathews and Shoebridge, n 76 above (suggesting this model as the basis for a uniform Australian approach). To qualify under the New Zealand regime, couples must (generally) have cohabited for three years. Of course, one could fix a longer time period in an attempt to make this type of reform more palatable in England and Wales.

108. See n 61 above and accompanying text.

109. See Mee, n 18 above, pp 315–316. This argument is also relevant in respect of other reform proposals in this area, although less far-reaching reforms would obviously constitute a lesser interference with cohabitees' freedom from legal regulation.

110. This is reminiscent of another paradox which arose at an earlier point in the discussion: see text following n 65 above.

111. See eg the Law Society Report, n 3 above, p 1. In what follows, this view is accepted for the purposes of argument although it does not necessarily reflect the position of the current author (who would prefer to remain agnostic on the point).

112. In other words, one is looking here also at the commitment entered into by the defendant.

113. The second form of restriction existed until recently in the legislative provision for cohabitees in Victoria (although not in the context of a regime which applied the marital rules to unmarried couples). See Property Law Act 1974, Pt IX, as inserted in 1987 and amended in 1998. Cf A Sifris ‘Part IX of the Property Law Act 1958 (Vic) - What Constitutes a Just and Equitable Order?’ (1998) 12 Aust J Fam Law 179.

114. See Schneider, n 21 above, p 65.

115. Cf Domestic Relationships Act 1994 (Australian Capital Territory), s 15(1) and s 19(2). The three most recently introduced Australian regimes (Queensland's Property Law Act 1974, as amended in 1999; Tasmania's De Facto Relationships Act 1999; and Western Australia's Family Court Act 1997, as amended in 2002) bear a closer resemblance to Australia's Family Law Act 1975 (which governs the position of spouses). See Willmott, Mathews and Shoebridge, n 76 above, at 39–40.

116. [2001] 1 AC 596 at 605.

117. The relevant New South Wales provision, the Property (Relationships) Act 1984, s 20, allows the court to’ make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and [a child of the parties].’

118. Discussion Paper, n 3 above, p 50.

119. Discussion Paper, n 3 above, p 50. An alternative possibility discussed (p 51) was to have given the court a discretion in relation to non-financial contributions only. The disadvantage of this would have been the loss of much of the predictability and certainty of the putative scheme.

120. Discussion Paper, n 3 above, p 51.

121. Cf Parkinson, n 55 above, at 137. Criticising the focus on a ‘middle-class paradigm’ of a professional woman who sacrifices her career to raise a family, he advances the example of a woman who had her first child at 18 when she was working in a fast-food restaurant. How is one to assess her loss, given that her job at 18 gives no real indication of what her long-term prospects would have been? Cf P Parkinson ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003) 31 Federal LR 1 at 18 (valuation of the woman's sacrifice by reference to the earnings of her partner).

122. Arguably, the concept of sacrifice is also indirectly relevant to the issue of the claimant's enjoyment of free accommodation in a home owned by the defendant. There will often be an element of sacrifice in the conduct of a claimant who foregoes the possibility of using his or her money to build up an equity in a home (whether or not with another partner) in order to live with the defendant in a home in the defendant's sole name. This might suggest that it would be unfair to take into account the full economic value of the accommodation enjoyed by the claimant.

123. Cf White v White [2001] 1 AC 596 and the discussion in the text to and following n 156 below.

124. See n 117 above. Bridge, n 3 above, at 745–746 appears to favour a similar approach.

125. The debate has been coloured to some extent by Dwyer v Kaljo (1992) 15 Fam LR 645, NSW CA, where Handley JA controversially introduced quasi-commercial concepts, referring to protecting the claimant's ‘reliance interest’, ‘expectation interest’ and ‘restitution interest’. Contrast Wallace v Stanford (1995) 27 NSWLR I, NSW CA.

126. (1997) 42 NSWLR 70.

127. For discussion, see A de Costa’ Searching for justice and equity after Evans v Marmont: Property adjustment following the termination of domestic relationships in New South Wales' (2002) 16 Aust J Fam Law 116; S Wong ‘Property Rights for Home-Sharers: Equity versus a Legislative Framework?’ in S Scott-Hunt and H Lim Feminist Perspectives on Equiry and Trusts (London: Cavendish, 2001) ch 7; Sifris, n 113 above.

128. See the Law Society Report, n 3 above, pp 60–61; Scottish Law Commission Report on Family Law (Scot Law Com No 135, 1992). paras 16.14–16.23. The Law Society's document contains only a brief discussion of the merits of the proposal and does not mention its origins in the Scottish Law Commission Report.

129. Law Society Report, n 3 above, p 60.

130. Law Society Report, n 3 above, p 60.

131. Law Society Report, n 3 above, p 60. Of course, there may have been a desire, for tactical reasons, to play down the practical impact of the proposed reforms.

132. See s 10(1). There are three further principles in s 9, which deal respectively with sharing the burden of caring for children under 16, the provision of financial support to allow a dependent party to adjust to the loss of support and the award of financial provision to avoid likely future hardship.

133. J Thomson Family Law in Scotland (Edinburgh: Butterworths/Law Society of Scotland, 4th edn, 2002) p 159.

134. Thomson, n 133 above. For further discussion of the relevant provision, see E Clive The Law of Husband and Wife in Scotland (Edinburgh: W Green, 4th edn, 1997) pp 462–465.

135. Note that the Law Society proposed (Discussion Paper, n 3 above, p 55) a public information campaign to promote an accurate public understanding of the legal position of cohabitees. Cf text to and following n 62 above.

136. See text to and following n 173 below.

137. See P Parkinson ‘The Property Rights of Cohabitees - Is Statutory Reform the Answer?’ in A Bainham, D Pearl and R Pickford (eds) Frontiers of Family Law: Part II (Chichester: John Wiley & Sons, 1995) pp 308–310.

138. Cf n 122 above.

139. As happened in the early years of the New South Wales legislation. See NSW Discussion Paper, n 3 above, para 5.20. It appears that matters have improved to some extent over the years, with the courts emphasising that home-maker contributions should be given more substantial weight (para 5.45). Cf the Law Society's somewhat casual assertion (in its Report, n 3 above, p 87) that: ‘The effect of the [New South Wales] Act is reported to have been that a few low awards have been made for the benefit of cohabitants.’ Note also that the discussion which precedes this comment overlooks the 1999 expansion and renaming of the legislation as the Property (Relationships) Act 1984.

140. Although it is not possible in the present context to do justice to this complex issue, it seems that the claimant's claim should relate primarily to the additional wealth accrued by the family over the course of the relationship (rather than to the value of property brought into the relationship by one of the parties or to property acquired after the termination of the relationship). Cf Parkinson, n 121 above, at 28ff (developing the argument in the matrimonial context that, where a home-making contribution would otherwise be inadequately rewarded, it may be appropriate to allow a ‘compensation’ claim against pre-marital assets, inheritances and the like).

141. In terms of the Law Society's proposed wording, the accumulated wealth in the defendant's hands could possibly be seen as an ‘economic advantage’ derived by the defendant partly as a result of the claimant's contributions and sacrifices.

142. Discussion Paper, n 3 above, p 60.

143. Above, n 128, para 16.22.

144. See Parkinson, n 137 above, p 316 n 50.

145. See Mee, n 18 above, pp 219–225. See also P Parkinson Beyond Pettkus v. Becker: Department of Work and PensionsEnrichment (1993) 43 UTLJ 217.

146. See Mee, n 18 above, pp 249–250. There are elements of this approach too in the Irish courts' treatment of indirect financial contributions. See pp 308–309.

147. (2003) 31 Federal LR 1 at 7–20 (discussing the ‘The Proprietary Consequences of Love’). See also Parkinson, n 137 above, p 314ff.

148. (2003) 31 Federal LR 1 at 13. In a slightly different context, Parkinson also mentions the possibility of one partner having left a city or country to live with the other partner and being unable to re-establish the same level of earning capacity (see at 16).

149. A corollary of Parkinson's position is that a claim should not be possible in a two-career childless relationship simply on the basis that one partner performed more than his or (more likely) her share of the housework. He argues (n 148 above, at 15) that ‘the difficulties and costs of [the resulting] curial inquiry would far outweigh any benefits which might accrue to women’.

150. Above n 148, at 10.

151. Above n 148, at 10.

152. Above n 148, at 8ff.

153. Cf Rotherham's discussion (n 64 above, pp 235–238) of the legal significance of a claimant's psychological connection with particular items of property. He notes (p 235) the argument of M Radin Reinterpreting Property (Chicago: University of Chicago Press, 1993) pp 35–71 that over time objects ‘can become so central to our sense of self that their loss is felt as striking at who we are’.

154. Cfn 170 below.

155. In this regard, note the factors listed in the New South Wales Property (Relationships) Act 1984, s 4(2) as indicators of whether or not the parties are in a de facto relationship. See also the discussion of the meaning of ‘living together as husband and wife’ in the extract from the ‘Decision Makers’ Guide, Department of Work and Pensions, May 2002 reproduced as Appendix 4 to the Law Society Report, n 3 above. Cf C Rotherham ‘The Contribution Interest in Quasi-Matrimonial Property Disputes’ (1991) 4 Canterbury LR 407 at 424–425.

156. See Matrimonial Causes Act 1973, s 25.

157. [2001] 1 AC 596, noted by R Bailey-Harris (2001) 117 LQR 199. Lord Nicholls gave the leading speech in this case, with Lord Cooke giving a shorter concurring speech.

158. [2001] 1 AC 596 at 605.

159. [2001] 1 AC 596 at 605.

160. [2001] 1 AC 596 at 605.

161. [2003] Fam 103, noted by S Cretney (2003) 119 LQR 349. Both Lambert and White were ‘so-called “big-money” cases, where the assets available exceed the parties’ financial needs for housing and income (per Lord Nicholls in White v White [2001] 1 AC 596 at 600).

162. [2002] Fam 97 (where the Court of Appeal regarded the husband as having made a ‘special contribution’ which justified a departure from equality).

163. [2003] Fam 103 at 121.

164. [2003] Fam 103 at 114, quoting Coleridge J in G v G [2002] 2 FLR 1143 at 1155.

165. [2003] Fam 103 at 115, quoting Coleridge J in G v G [2002] 2 FLR 1143 at 1160.

166. [2003] Fam 103 at 121.

167. [2003] Fam 103 at 120.

168. [2003] Fam 103 at 114 per Thorpe LJ, quoting Coleridge J in G v G [2002] 2 FLR 1143 at 1160.

169. Women working full-time in Britain in 2002 earned 81% of the average full-time earnings of men. Women working part-time earned 59% of the average hourly earnings of men who worked full-time. See Equal Opportunities Commission Women and Men in Britain: Pay and Income (2003), available at http://www.eoc.org.uk/research. See also Department of Trade and Industry, Women and Equality Unit Individual Income 1996/97–2001/02 (June 2003).

170. Note that the length of the relationship was arguably a key factor in White and Lambert. Cf J Eekalaar ‘Asset Distribution on Divorce - The Durational Element’ (2001) 117 LQR 552; GW v RW [2003] 2 FLR 108. See n 154 above and accompanying text for the argument that the length of the relationship should be taken into account, at least to some extent, in any legislative scheme for cohabitees.

171. One could, however, imagine a case where a defendant was relying on a home-making contribution as against a claimant who had made a contribution outside the home. In this circumstance, the unfairness in undervaluing the home-making contribution would tend to deprive the legal owner of his or her property rights (rather than merely limiting the extent of the new rights accorded to the claimant).

172. It is not intended to suggest that it would necessarily be undesirable if cohabitation legislation led to very substantial awards for claimants due to a presumption that the respective contributions were equally valuable. The point is simply that, if this were going to be the result, it would probably be simpler to reach it by assimilating the position of qualifying cohabitees with that of spouses.

173. Discussion Paper, n 3 above, p 43.

174. One would simply provide that no reliance could be placed on the common intention of the parties in determining a claim to a beneficial interest in a shared home within the scheme.

175. See eg Greasley v Cooke [1980] 1 WLR 1306. See also the Discussion Paper, n 3 above, p 59 n 15.

176. Discussion Paper, n 3 above, p 57.

177. Discussion Paper, n 3 above, p 51. See text to and following n 120 above.

178. Discussion Paper, n 3 above, p 57.

179. Contrast New Zealand's Property (Relationships) Act 1976, s 4 (which states that the Act is a code governing the property rights of relevant couples, to the exclusion of the rules of equity).

180. See Mee, n 18 above, pp 142–143

181. Discussion Paper, n 3 above, p 60. Cf the Law Society Report, n 3 above, p 81, suggesting (without full elaboration) that the legislation have retrospective application but that no claim be permitted until two years from the date of the legislation.

182. Since the test under the new scheme would have been different, there is no guarantee that such a claimant would have been successful (or successful to the same extent) under the statutory scheme.

183. Discussion Paper, n 3 above, p 60. Presumably, the provision which the Law Commission had in mind was Article 1 of the First Protocol (protection of property). Note also the possible relevance of Article 8 (protection of private and family life and the home). See generally J Howell ‘Land and Human Rights’ [1999] Conv 287; C Ovey and R White Jacobs & White: European Convention on Human Rights (Oxford: Oxford University Press, 3rd edn, 2002) chs 10, 11 and 15.

184. Known, until 1999, as the De Facto Relationships Act 1984.

185. See eg C Bessant ‘Cohabitation, Reform and the Human Rights Act 1998’ [2001] Fam Law 525. Cf S Wong ‘Trusting in Trust(s): The Family Home and Human Rights’ (2003) 11 Feminist Legal Studies 119 (possible impact of human rights discourse on the development of the law of trusts).

186. The decisions of the European Court of Human Rights on Article 1 of the First Protocol have, thus far, afforded a generous margin of appreciation to states in matters of social and economic policy (see eg James and ors v UK (1986) 8 EHRR 123: upholding legislation allowing tenants to acquire the freehold estate). On the other hand, it is unclear whether the same restrained approach will be taken in the domestic courts. See Howell, n 183 above, at 289–291. Cf Re The Matrimonial Home Bill 1993 [1994] I IR 305 (retrospective legislation providing for equal ownership of matrimonial homes struck down as contrary to Irish Constitution).

187. Thus, no attempt has been made to consider all the details of a possible legislative solution, including the important question of whether it should be possible for a claimant to obtain, as well as a share in the defendant's property or a one-off monetary payment, other remedies such as an order for periodic maintenance or a share in pension entitlements. For discussion, see Miles, n 3 above, at 638–647.

188. See text to and following n 107 above.

189. See text to and following n 117 above.

190. See text to and following n 156 above.

191. See n 3 above.