Cohabitation and Comparative Method

Abstract

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the e¡ect of an entrenched right to equality protecting against marital status discrimination. It identi¢es not di¡erent legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not con¢ne itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past.

Mine, yours, ours, or no one's? Homeownership arrangements among cohabiting and married couples

“…Québec is no exception to this rule, especially with regards to the primary residence. The family patrimony provision in the province irrevocably applies to all married persons and prescribes the equal split of a family home (and some other assets, such as pensions) acquired during marriage in the event of a separation, or half going to the surviving spouse in the event of death (Lavallée et al., 2017; Leckey, 2009; Roy, 2011). 1 By contrast, cohabiting couples have no rights to their partner's home (or other assets) at separation or death (Leckey, 2009; Roy, 2011).…”

“…The family patrimony provision in the province irrevocably applies to all married persons and prescribes the equal split of a family home (and some other assets, such as pensions) acquired during marriage in the event of a separation, or half going to the surviving spouse in the event of death (Lavallée et al., 2017; Leckey, 2009; Roy, 2011). 1 By contrast, cohabiting couples have no rights to their partner's home (or other assets) at separation or death (Leckey, 2009; Roy, 2011). While the legal situation of the married does not mean they always jointly and equally own wealth during their union, one wonders whether the growing number of cohabiting couples having no legal obligation to share assets post‐union might be fueling increased wealth individualization and potential disparities between partners.…”

Cohabitation’s boundaries and the confines of tradition

“…It is de facto spouses’ liberty that purportedly justifies treating them as legal strangers (Nicolas-Maguin, 2009: 386–392; Hauser, 2005; D-Castelli and Goubau, 2005: 1; Goubau, 1995: 476; Roy, 2010; for critical analysis, see e.g. Leckey, 2009a; Tremblay, 2015; on ‘complicating choices’, see generally Campbell, 2013: 1).…”