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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

13 OCT 2016

The limits of marriage protection in property allocation when a relationship ends

The limits of marriage protection in property allocation when a relationship ends

Keywords: Marriage - property - cohabitation - family law - property law

This article takes issue with two assumptions commonly present in recent English family law scholarship: that the property law principles that presently apply to cohabitants’ property arrangements are complex and confusing, not to say inadequate, and that cohabitants should instead be protected by a family law-style statutory regime such as that proposed by the Law Commission in 2007. It argues that both the legal explanations and the scaremongering tone of much of this scholarship have been unhelpful (and sometimes inaccurate) in misleading non-specialist lawyers, but also non-lawyers and the general public, as to the precise nature of the respective protections offered by property law and family law, and that the proposed solution is not the way to tackle the real problem, which is not the need to protect cohabitants, but how to tackle gendered inequality in relationships. Instead, it suggests that legal discussions should employ more accuracy and precision about the law in principle and a more critical approach to how it works in practice (especially considering recent developments in the family courts), and that better conveyancing practice and better public education would help to empower individuals to make informed decisions as to their property arrangements.

This article has been accepted for publication in Child and Family Law Quarterly in Issue 4, Vol 28, Year 2016. The final published version of this article will be published and made publicly available here 24 months after its publication date, under a CC-BY-NC licence.

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