Legal Cohabitation in England from a Scottish Perspective: An Actual Parameter or a Window-Dressing

The Family Law (Scotland) Act 2006 introduced from the outset in the ‘North of the Border’ legislation a new statutory scheme, the main purpose of which was to provide a financial remedy for eligible cohabiting couples in cases of relationship breakdown. After more than a decade, by contrast, the position in England and Wales remains that there are no statutory cohabitees’ rights. This paper discusses and analyses the key judgments arising out of claims brought under the Scottish legislation, and these are contrasted with the legal position in England and Wales. Ultimately, it is argued that the lack of a statutory scheme in England and Wales, despite continuing calls from leading members of the judiciary and the Law Commission for a change in the law in England and Wales, should not necessarily be blamed. In fact, the legal notion of unjustified enrichment, already existing in both the English and Scottish legal systems, may already provide a more than satisfactory safeguard to cohabitees, in line with the societal changes which are taking place in modern relationships. Perhaps lessons can be learnt from the “Old Continent".