Oct 07 2024 56 mins 2
In this episode, we are joined by Professor Jens Scherpe (Professor of Comparative Law at Aalborg University, and academic door tenant at QEB), and our very own Resolution Cohabitation Committee Chair, Graeme Fraser (Head of Family at William Sturges) to discuss what model of cohabitation law reform should be introduced in England & Wales.
This is a seminal moment for Resolution. It has been campaigning to achieve family law remedies for cohabitees almost since its inception in 1983, with it being high on its list of priorities since the mid-1990s. The new government has confirmed they are committed to cohabitation reform, so what shape should that take?
What Resolution members know is that the general law is not good enough for families. If you need convincing, Jens guides us to think - do you think cohabiting families are families? If yes, then you need family law remedies (rather than remedies for people with no connection because purpose of family law (unlike general law) is to address societal, financial and gender imbalances that arise from being a family.
Which model would you support?
- Do you think, we should:
- Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have a
- Difference model - so there is a clear difference between the remedy for a cohabiting couple, or a married couple.
With all family law remedies, you then need to decide are you:
a. Compensating a partner for the loss they have experienced generated by the relationship; OR
b. Sharing the fruits of the relationship both parties have participated in.
Graeme and Jens explore the law for cohabitees in Scotland, Ireland and Australia to consider the pros and cons of each model. We then put them on the spot to what they think we should do in England & Wales.
In the conversation, Graeme refers us to the Law Commission report from 2007:
And the Vision for Family Justice: https://resolution.org.uk/wp-content/uploads/2023/11/Resolution-Vision-for-Family-Justice-full-221123.pdf
If you would like to read more about this, then please do look at Jen’s books about comparative law:
- Jens M. Scherpe (ed.), European Family Law, Edard Elgar 2016 - European Family Law (e-elgar.com)
- Jens M. Scherpe/Andy Hayward (eds.), Future of Registered Partnerships – Family Recognition Beyond Marriage, Intersentia 2017 - The Future of Registered Partnerships ~ Book ~ Larcier-Intersentia
- Jens M. Scherpe/Andy Hayward (eds.), De Facto Relationships – A Comparative Guide, Edward Elgar Publishing, forthcoming in 2025 in the following series: https://www.e-elgar.com/shop/gbp/book-series/law-academic/elgar-comparative-family-law-series.html
