Unmarried cohabitation and the constructive trust : an exercise in flawed equality

Collins, Georgina May and Mayfield, Benjamin and Campbell, David (2018) Unmarried cohabitation and the constructive trust : an exercise in flawed equality. PhD thesis, Lancaster University.

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Abstract

Cohabitation has become increasingly widespread, yet the law refuses to recognise the consequences of the breakdown of such relationships. The inaction of Parliament has left it to the courts to distribute proprietary rights based upon the law of trusts. However, the focus on purely financial contributions, penalises those who are most vulnerable. The most problematic consequence of this is that the approach taken to cohabitation replicates gender inequalities which are prevalent throughout society. Attempts to achieve formal equality and those discourses which indicate such an approach, have done nothing to achieve any form of ‘real’ equality. Unmarried cohabitation serves as an example of the wider implications of inequality, and demonstrates the potential for an approach which recognises difference to change social reality both within the legal sphere and without. Engaging in a desk-based inquiry which analyses case law and legislative proposals through a socio-historical lens allows for differing approaches to equality to be identified. Through this process, connections are drawn between the socio-legal construction of women, the rhetoric of the judiciary, and the equality approach adopted and implemented. This piece aims to demonstrate that formal equality is flawed. The law’s continued focus on the concept merely replicates the gendered nature of resolving cohabitation disputes, thus undermining equality in practice. What is necessary is for difference to be recognised, adopting an approach which lies between substantive and formal equality. This would allow for the recognition and alleviation of the gender bias inherent in both society and the CICT regime.