Graeme Fraser, Partner and Head of Family, OGR Stock Denton LLP
This article summarises the regulation and treatment of unmarried cohabitants in Britain, Canada and Australia. Cohabitation law and practice operates very differently in each of these jurisdictions. In Ontario, spousal support is available for unmarried couples. Australia operates a national de facto scheme giving an unmarried couple much the same rights as married couples. Scotland provides a discretionary remedy based on economic disadvantage suffered by the applicant. England and Wales has no specific family law for cohabitants, and property rights are governed by TOLATA. Cohabitation law changes in Australia and Ontario have been uncontroversial and very workable, although law changes have not improved property rights in Canada. Cohabitation law reform remains on the agenda in England and Wales, despite not progressing since the Law Commission’s report 14 years ago. Scottish cohabitation law is under review due to difficulties arising from the lack of remedies available. A case study contrasts the property and maintenance claims available in each jurisdiction for a claimant following a long period of cohabitation with children. The article concludes with the reminder that a change in cohabitation law in England and Wales protecting those left most vulnerable is long overdue.