英文同居和法律委员会计划

SIMONE WONG COHABITATION AND THE LAW COMMISSION’S PROJECT ABSTRACT. In 2004, the U.K. parliament passed the Civil Partnership Act which provides a scheme to enable same-sex couples to obtain formal recognition of their relationships through the registration of a civil partnership. When the Civil Part- nership Bill was making its way through parliament, attempts were made in the House of Lords to derail the Bill through amendments seeking to extend the Bill to certain familial relationships of care and support. In order to counter these attempts and to facilitate the removal of the amendments, the government gave the assurance that the matter of the economically vulnerable cohabitant would be referred back to the Law Commission for England and Wales for review. Consequently, in July 2005, the Law Commission commenced its project on cohabitation. This paper seeks to examine models of reform (such as the one proposed by the Law Society of England and Wales in its 2002 Cohabitation report) as well as those introduced in other Commonwealth countries. The aim is to identify some of the crucial questions that the Law Commission will need to give careful consideration to if they are to make recommendations that will provide a more radical approach to this area of the law, rather than adopt the more conservative approach of including cohabitation in ‘piggy back’ mode on the marriage model. KEY WORDS: cohabitation, contractual arrangements, Law Commission, prop- erty and financial provision, reform The Law Commission for England and Wales (hereafter ‘the Law Commission’) commenced its project on cohabitation in July 2005. This was a result of the U.K. government’s tactical move during the passage of the Civil Partnership Bill1 to counter the attempts made to derail the Bill through amendments introduced in the House of Lords. By way of brief background, those amendments sought to extend the Bill to certain long-term non-sexual caring and stable relationships on the ground that, if the Bill was not ‘‘a gay marriage Bill but one about removing injustice’’ (Baroness O’Cathain, H.L. Hansard, 24 June 2004, col. 1363), the economic vulnerability of those in caring relationships equally merit attention. The government had, however, consistently maintained throughout the period of the 1 The Bill has since been passed as the Civil Partnership Act 2004 and came into force in December 2005. Feminist Legal Studies (2006) 14:145–166 � Springer 2006 DOI 10.1007/s10691-006-9025-y parliamentary debates that the Civil Partnership Bill was not the appropriate place to deal with any relationships other than same-sex partnerships. In order to gain support in the House of Commons for the removal of the Lords’ amendments, the government assured the House that the matter of the economically vulnerable cohabitant, opposite-sex and same-sex, would be referred back to the Law Commission for review in its Ninth Programme of Law Reform in 2005 (Jacqui Smith, H.C. Hansard, 12 October 2004, col. 179). The government was clearly cautious to limit any review of the law relating to close personal adult relationships to only cohabitants, rather than a wider range of interdependent relationships. Accordingly, the Law Commission’s project on cohabitation focuses on the financial hardship suffered by cohabitants, opposite- sex and same-sex, or their children on the termination of the rela- tionship by separation or death, and not those who are in familial and non-familial relationships of care and support. This includes con- sidering matters such as providing access to a property redistribution regime and to financial provision. The Law Commission had, in its earlier Sharing Homes discussion paper (2002), observed the greater need for the law to provide remedies to home-sharers2 but had then refrained from making any recommendations on possible legal reform.3 In that year, the Law Society of England and Wales (here- after ‘the Law Society’) also published its Cohabitation report (2002), in which it proposed a two-tiered system: a registration scheme for same-sex relationships which would provide registered partners with rights analogous to those for married couples; and a presumptive system which would confer lesser rights and responsibilities to opposite-sex and same-sex cohabitants on their satisfying certain criteria (e.g. a minimum period of cohabitation or the presence of children, and conjugality). At present, it remains unclear whether, but appears highly prob- able that, the Law Commission is likely to recommend a presumptive system whereby rights and responsibilities will be ascribed to cohabitants. But it is not certain that the Commission will mirror the approach taken by the Law Society back in 2002 and recommend a 2 The Law Commission’s reference to the term ‘home-sharers’ extends to a wider range of home-sharing relationships and is not limited only to relationships involving cohabitants. 3 For a fuller discussion of the Law Commission’s Sharing Homes discussion paper, see Wong (2003); Miles (2003); Mee (2004). SIMONE WONG146 presumptive model similar to the Law Society’s. It is possible that the Law Commission may look to the models adopted by other Com- monwealth countries such as Australia, where legislation has been introduced at sub-national level to deal with the financial and property matters of not only cohabitants but also those in caring relationships (although any recommendations by the Law Commis- sion will not extend to the latter group). Given the possibilities, it remains highly speculative what direction the Law Commission is likely to take and what its recommendations are likely to be. This paper seeks to explore these various possibilities and more specifically to consider the effectiveness of these various models in addressing the economic vulnerability of cohabitants. Moreover, most reform pro- posals have been based on stretching the marriage model to cohab- itation as a means of extending rights and responsibilities (Bottomley & Wong, 2006) but have only limited effect because of the ideologies of law with which the marriage model is imbued with. The paper, therefore, seeks to identify some of the questions that will require careful consideration by the Law Commission in its consultation process in order for more progressive reform to be introduced which will transgress the marriage model as its starting point. CRITERIA FOR INCLUSION AS A QUALIFYING RELATIONSHIP The criteria used for defining a qualifying cohabitation in most pre- sumptive models have tended to use the marriage model as the starting point. This is not unsurprising since the genesis of most of these models have invariably been the extension of some of the rights and privileges enjoyed by married couples to opposite-sex cohabi- tants. As the Australian experience demonstrates, most of the sub- national legislation was initially passed to provide opposite-sex cohabitants with access to a property redistribution regime at the breakdown of their relationships (see, for instance, the New South Wales De Facto Relationships Act 19844 and Tasmania’s De Facto Relationships Act 19995). All of the Australian sub-national legisla- tion have at different times been amended to extend to same-sex couples as well, and some have even been extended to familial and 4 This statute was amended by the Property (Relationships) Legislation Amend- ment Act 1999 and renamed the Property (Relationships) Act 1984. 5 The 1999 Act was subsequently repealed and replaced by the Relationships Act 2003. COHABITATION AND LAW COMMISSION’S PROJECT 147 non-familial relationships of care and support (e.g. Property (Rela- tionships) Act 1984 (New South Wales); Domestic Relationships Act 1994 (Australian Capital Territory); Relationships Act 2003 (Tas- mania)). For the purposes of this paper, I will focus only on the criteria used in defining qualifying relationships between cohabitants (which in the case of the Australian statutes are referred to as ‘‘de facto relationships’’). What is evident in the Australian context is that the definition adopted by the statutes, when they were applicable only to opposite- sex cohabitation, was one based on the marriage model. For instance, both the 1984 New South Wales and 1999 Tasmania de facto legis- lation previously defined de facto partners as being a man and a woman who live together as man and wife and are not married to each other. However, in a move to extend the legislation to same-sex couples, a gender-neutral definition was adopted to replace this ‘marriage-like’ definition. Thus de facto partners are re-defined as two persons who live together as a couple (Property (Relationships) Act 1984, s.4(1)) or have a relationship as a couple (Relationships Act 2003, s.4(1)) and are not married or related to each other. The adoption of a gender-neutral definition of cohabitants raises various concerns for different groups. Firstly, this de-sexing of inti- mate opposite-sex and same-sex couple relationships suggests that, while status remains the gateway to accessing the law, the objective of the statutes is to provide not formal recognition of such status but recognition of the fact that economic vulnerability can result as a consequence of interdependency which close intimate relationships may engender. It gives a framework for dealing with financial and property matters of the parties, arising out of this interdependency, at the end of the relationship. This argument is clearly one which other groups, particularly those in relationships of care and support, have latched on to. To some extent, similar arguments were relied upon in the U.K. by the proponents of the amendments made to the Civil Partnership Bill in the House of Lords. They also pave the way, at least in the Australian context, for the further extension of the de facto legislation to a wider range of close personal relationships, but ones which do not necessarily carry with them the presence of a sexual relationship between the parties. In Australia, the adoption of a gender-neutral definition of qual- ifying cohabiting relationships, however, proved problematic for some gay and lesbian activists. In particular, the Gay and Lesbian SIMONE WONG148 Rights Lobby in New South Wales, in an emphatic response to government proposals in 1999 to amend the then de facto legislation, made it very clear that a totally gender-neutral definition such as that adopted in the Australian Capital Territory (Domestic Relationships Act 1994, s.3) should be avoided.6 The adoption of a gender-neutral definition, which focuses on interdependency as the basis for rec- ognising a relationship, no doubt has the potential for allowing a wider range of close personal relationships to piggy back on that definition to access the law. This approach also has the potential to destabilise the notion of heterosexuality and the hetero-nuclear family (Millbank & Sant, 2000). Millbank and Morgan (2001), however, argue that legal reform which makes no reference to the parties’ sexual relations is less radical because, in de-sexing cohabit- ing relationships, it renders the sexuality of the parties invisible. Same-sex relationships are therefore ‘normalised’ as domestic/inter- dependent/property relationships.7 A major drawback for same-sex couples is that no recognition is given to the (sexual) celebration of their intimate relationships as the law renders lesbian and gay sub- jecthood and sexuality invisible (Millbank & Morgan, 2001, p. 315). Notwithstanding a purported move away from the marriage model in definitional terms, the Australian statutes evince a kind of ‘retreat’ to that model. The courts may take into consideration a list of non-exhaustive factors in determining whether a de facto rela- tionship exists (Property (Relationships) Act 1984, s.4(2); Relation- ships Act 2003, s.4(3)).8 The factors specified include: the duration of the parties’ relationship; the nature and extent of a common resi- dence; whether or not a sexual relationship exists; the care and sup- port of children; and the reputation and public aspects of the relationship. As Millbank and Sant (2000) explain, this list is prob- lematic because it has its origins and history in heterosexual de facto law which is based on a comparison with marriage. Some of the listed 6 The Domestic Relationships Act 1994 provides a general definition of domestic relationships which include de facto relationships as well as caring relationships. Unlike the Property (Relationships) Act 1984 and the Relationships Act 2003, the 1994 Act does not make a distinction between either of these relationships. 7 See also Barker in this issue. 8 Both statutes provide that, in deciding whether two persons are in a de facto relationship, the courts may take into account any one or more of the factors listed. But a finding of one or more of the listed factors is not necessary, and the courts may also take into account other matters which may seem appropriate in the circum- stances of the case. COHABITATION AND LAW COMMISSION’S PROJECT 149 factors are therefore not relevant to same-sex relationships and might have a negative impact on establishing the existence of a de facto relationship. Further, as the presence of a sexual relationship is one of the relevant factors, conjugality is re-introduced by the back door in determining whether a particular relationship qualifies. Relatedly, the question of inclusion also hinges on whether a cohabitation requirement is absolutely necessary. Here, we see dif- ferences in approach in the Australian context. While most sub- national statutes do impose a cohabitation requirement,9 some have begun to challenge the need for cohabitation as a precursor to interdependency. Consequently, statutes such as the Domestic Rela- tionships Act 1994 and the Relationships Act 2003 have omitted the cohabitation requirement for a couple’s relationship to qualify. A key argument against the cohabitation requirement is that it renders a definition under-inclusive. Interdependence arises because of the structural aspects of a relationship (e.g. the (sexual) division of labour, arrangements relating to the economic activity or inactivity of the parties, the allocation and control of family income, etc.). As such, interdependence can equally arise in non-cohabiting relation- ships and cohabitation should not be used as an essential indicator of interdependence for the purposes of inclusion. This leads Millbank and Sant (2000, p. 208) to argue in favour of the broader ‘relational’ interdependence approach adopted in statutes like the Domestic Relationships Act 1994 which does not impose a cohabitation requirement. However, in the U.K. (judging from the Law Society’s 2002 report as well as the Law Commission’s statements on their web site relating to their project on cohabitation), it would seem that a narrower approach to reform is being envisaged. In its 2002 report, the Law Society recommended that some level of protection ought to be extended to opposite-sex and same-sex cohabitants through an ascription model. It also considered the question of whether the term ‘cohabitation’ ought to be extended to other cohabiting non-sexual interdependent relationships. This was, however, rejected on the ground that drafting a sufficiently inclusive definition to capture the more varied nature of such relationships would be too difficult. The Law Society then stuck to the narrower project of looking at only couple-based cohabiting relationships, without addressing the 9 A minimum two-year cohabitation period is required unless there is a child to the relationship, in which case a shorter period of cohabitation is permissible. SIMONE WONG150 broader question of whether reform should also be extended to non- cohabiting couples facing similar financial difficulties. The Law Society’s choice of definition for a qualifying relationship is somewhat narrower than that currently adopted by the Australian statutes for de facto partners. Given the Law Society’s focus was only on cohabiting couples, the need for a cohabitation requirement was taken as a given and was not in any sense challenged by the Law Society. The Law Society then proceeded to consider the different definitions of cohabitation currently adopted in various legal sources in the U.K. such as statutes and by the Department of Work and Pensions. In a rather unimaginative move, it then proceeded to rec- ommend what is by now a familiar definition of cohabitation, very much wedded to the marriage model: that is, cohabitation is a rela- tionship between ‘‘two persons (either opposite or same sex) living together in the same household in a relationship analogous to that of husband and wife’’ (2002, at para. 55).10 This resort to a marriage- like definition of cohabitation for both opposite-sex and same-sex cohabitation is problematic. The marriage-like approach taken in the Law Society model is further reinforced by the recommendation of a non-exhaustive list of factors to guide the courts in determining whether a cohabiting relationship qualifies (Law Society, 2002, p. 13). The very first factor on the list is whether or not the parties have a sexual relationship. Other factors include whether the parties dem- onstrate traits of a married couple, for example: holding joint accounts; the provision of financial support; the sharing of a house- hold; and whether the parties socialise together and/or are known as a couple. What we see is a stretching of the marriage model to accommodate the inclusion of other close personal relationships (Bottomley & Wong, 2006). This assumes that the marriage model itself is unpro- blematic and is indeed a satisfactory template. The basis for inclusion of other types of close personal relationships such as opposite-sex and same-sex cohabitation must thus be based on similarity or sameness. As has been argued elsewhere (Bottomley & Wong, 2006), the ‘logic of semblance’ has a serious limiting effect as it provides little space for more radical reform to be thought through in this area, and the potential for extending such reform to a wider group of relationships 10 The minimum period of cohabitation required under the Law Society’s model is similar to that in the Australian statutes, i.e. two years unless there is a child of the parties. COHABITATION AND LAW COMMISSION’S PROJECT 151 will involve the (un)necessary stretching of the marriage model even further. BASIS FOR PROPERTY REDISTRIBUTION The next issue which the Law Commission will need to grapple with is the basis upon which financial and property matters of cohabitants are to be resolved at the end of their relationships. Here, we see the possibility of adopting an approach based upon either property law or family law or, indeed, a combination of both. In its 2002 discus- sion paper, the Law Commission had considered a property law approach where rights over the shared home would be determined solely by contributions made, financial and non-financial. Such rights would arise as from the time the scheme takes hold (e.g. by making relevant contributions), and would take effect and be binding on third parties like any other beneficial interests in property. However, the Law Commission rejected making any proposals for such a statutory scheme on the grounds that the scheme would provide insufficient flexibility for taking into account the various contributions made within a diverse range of home-sharing relationships. This conclusion is unsurprising given that, as acknowledged by the Law Commission itself, a key problem with that putative scheme was the lack of con- sideration being given to ‘intention’ as a prerequisite for acquiring a beneficial interest in the property.11 A family law approach, on the other hand, has the advantage of being more responsive to the nuanced nature of close personal rela- tionships. The approach is remedia