Cohabitation, Law Reform, and the Litigants

Abstract

Who sues when cohabiting relationships unwind, before and after reform that extends matrimonial sharing of family property to cohabitants? This paper reports findings from the Canadian provinces of Saskatchewan and British Columbia, where reform aimed to divert cohabitants from claims in unjust enrichment. The legislative minimum duration in both is two years. The paper reports on a comparison of the litigants in judgments in unjust enrichment pre-reform and under the extended family legislation. Factors studied include the sexes of the plaintiffs and defendants, distribution of household labour, presence of children, relationship duration, and money awarded. The findings show continuity in the profile of litigants, with relatively few claims from short unions post-reform. Money awards increased and patterns of household labour diversified somewhat. Findings highlight that intensifying the financial consequences of cohabitation may multiply disputes over the nature of unions and their duration. These disputes flag up the unlikelihood of achieving wholly identical treatment for married and unmarried partners. The findings might lead opponents and proponents of law reform to temper their discourse. Extending property sharing to cohabitants after a relatively short union did not flood the judicial system. Nor did it eliminate procedural and evidentiary hurdles distinctive to cohabitants relative to married spouses.