The Human Rights Act 1998 and the Shared Home: Issues for Cohabitants

Abstract

From the date of the Civil Partnership Act 2004 coming into force, in December 2005, same‐sex couples can register a civil partnership, thereby giving them rights and responsibilities that are analogous to those for married spouses. These include access to a property regime to deal with property matters at the end of the civil partnership. An issue that arose when the 2004 Act was being passed was the exclusion of the economically vulnerable opposite‐sex cohabitant, who would not have access to either the said Act or the Matrimonial Causes Act 1973 to deal with his or her rights; in particular, rights over the shared home. The Joint Committee on Human Rights highlighted the potential human rights issues that might arise and that the government would need to provide strong justification for the differential treatment of opposite‐sex cohabitants. This article explores the extent to which opposite‐sex cohabitants may be able to draw on the Human Rights Act 1998 to bolster their claims to a beneficial interest in the shared home, either under the common law or by access to a statutory regime such as that provided by the 2004 Act and the Matrimonial Causes Act 1973.

Keywords:

• Opposite‐sex Cohabitation
• Shared Property
• Access to Property Rights
• Human Rights Act 1998