Shared commitment, interdependency and property relations: a socio-legal project for cohabitation [2012] CFLQ 60

This paper is concerned with the normative reason(s) for extending protection to close personal relationships such as cohabitation for the purposes of dealing with property matters when the relationship terminates. There has been an increasing shift from defining cohabitation along the marriage model (and, with it, a sexual nexus) to focusing on the ‘couple', their commitment and interdependence as the fulcrum for extending protection. This is a trend that can be discerned in recent divorce and constructive trust cases where marriage, and even cohabitation, is acknowledged as a form of partnership. The focus on commitment is to be welcomed as it moves us away from conjugality as the basis for extending recognition to cohabitants. However, there remains a tendency to conflate commitment and interdependence with the issue of economic vulnerability and to make the latter the remedial objective of the law, which limits us to looking at patterns of dependence rather than more interactive patterns of commitment. The paper will consider the ways in which commitment and interdependence are being currently constructed by the law and what aspects of sharing lives are deemed particularly crucial to warrant the extension of some legal protection. It seeks to argue that the law has to go beyond the economic hardship trajectory and that there has to be greater interrogation of the nexus between sharing lives (and a home), commitment and interdependence.