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The decision reached in the case of Sutton v Mischon de Reya [2004] 1 FLR 837 highlights the difficulties which often surround the enforcement of ‘co-habitation’ contracts and the human rights of unmarried couples generally.

The decision reached in the case of Sutton v Mischon de Reya [2004] 1 FLR 837 highlights the difficulties which often surround the enforcement of ‘co-habitation’ contracts and the human rights of unmarried couples generally.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Theresa McDermott. Originally submitted for LLB Hons Law at University of Ulster, with lecturer Alice Diver in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Theresa McDermott. Originally submitted for LLB Hons Law at University of Ulster, with lecturer Alice Diver in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
Copyright:Attribution Non-commercial

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05/13/2014

 
1
Key WordsCohabitation
 –
Unmarried
 –
Policy - Contracts
 –
Rights AbstractOutdated public policy concerns in the United Kingdom have led to unmarriedcohabitants being subjected to a patchwork of inferior legal protections. Thelaw should be modernised in order that the legal position of unmarriedcohabitants be brought in line with that of their domestic married counterpartsand international equivalents. International jurisdictions report no statisticallysignificant evidence to support the fear that such legislation would undermineor adversely affect the institution of marriage. Cohabitation no longer offendsmodern public opinion, yet this is not reflected in public policy. Couples shouldnot be penalised for choosing not to marry.
 
2
„The decision reached in the case of 
Sutton v Mischon de Reya [2004] 1 FLR837 highlights the difficulties which often surround the
 
enforcement of „co
-
habitation‟ contracts and the
human
rights of unmarried couples generally.‟
 
3
Political parties in the United Kingdom (UK) may typically disagree on just abouteverything, but one belief they share, is that to award marriage-like rights tounmarried couples would both
„undermine the institution of marriage‟ and erode thetraditional „family unit‟.
1
Such public policy concerns have prevented the currentgovernment from providing comprehensive legislative protection for unmarriedcohabitants. The same policy concerns have restricted the scope of judicialremedies and have also seriously impeded initiatives taken by cohabitants toregulate their own affairs in the form of cohabitation contracts. These policyconcerns are, however, neither supported by modern public opinion nor endorsed bystatistical evidence which is available from jurisdictions where such rights have beenenjoyed by unmarried cohabitants for some time.
„Cohabitant‟ is not specifically defined in UK law but is generally taken to be a
party to a same-sex or opposite sex couple who live together in the manner of ahusband and wife without the benefit of marriage.
2
 The majority of unmarried couples who cohabit do so in blissful ignorance of their lack of legal status
and “at their own peril.”
3
 Parties who cohabit outside marriage do not have the legal responsibilities of a married couple. Nor do the benefits and burdens of matrimonial law extendto them.
4
 While many believe that they gain marriage-like rights over time
5
, this is not thecase. The
concept of „common law marriage‟ disappeared in 1753 when Lord
Hardwicke introduced the Marriages Act for the purpose of eliminating illicitrelationships. Public policy since then has been concerned with promoting and
1
Ian Duncan Smith, Family Law Newswatch, www.familylaw.co.uk
2
 
Bessant, C “Cohabitation, Reform and The Human Rights Act 1998 (2001) Fam Law 525
 
3
Mee, J
The Property Rights of Cohabitees
(Hart Publishing, Oxford 1999)
4
 
Parry, M. L.
The Law Relating to Cohabitation
(2
nd
edn Sweet & Maxwell, London 1988) 1-04 P6,
5
British Social Attitudes Survey (2008)

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