Research Paper Number

39/2014

View the research paper on SSRN here.

Document Type

Article

Publication Date

2014

Keywords

Family; home; Canadian Law; British Law; family dynamics

Abstract

The family home is more than simply an economic asset or a means of shelter. It is uniquely connected to one's personhood interests. The law in Canada and Britain recognizes this by giving married spouses special rights of possession or title in the family home, but the corresponding rights of the rising number of unmarried cohabitants are found in a patchwork of common law and legislation. The law has a deep-rooted tendency to value property interests above "family" considerations, and the emerging trend toward "familialization" of property law applies mainly to married couples. There is an inherent tension in attempting to secure equal rights for unmarried cohabitants while recognizing that the choice to remain unmarried is an important aspect of one's autonomy. The authors examine how these tensions are manifested in the current law in Canada and Britain. They then analyze reform proposals and reform legislation in both countries, as well as the potential influence of constitutional equality provisions and human rights legislation. They conclude that while an autonomy-based approach to the division of cohabitants' property has some merit, familial considerations should prevail where the family home is concerned. The functional similarities between cohabitants and married persons become stronger the longer the relationship lasts, especially where children are involved. These similarities provide a firm basis for similar legal treatment where the family home is concerned. The emergence of same-sex marriage in Canada and civil unions for same-sex couples in Britain will bring some clarity to the law. Further action is needed, however, to provide a framework for the resolution of disputes over the family home of cohabitants, whether same-sex or opposite-sex, who choose not to formalize their relationships.

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