In Barclay's Bank v. O'Brien(1993) the House of Lords extended the undue influence rules to heterosexual and homosexual cohabitees, a move that was widely welcomed and has been endorsed in Royal Bank of Scotland v. Etridge (No. 2) (2001). The paper argues that the extension to homosexual couples is inappropriate, since undue influence is largely a problem of heterosexuality. It is not accidental that there have been no reported cases of undue influence between lesbian or gay partners, not because abuses (...) of power do not occur within such relationships, but because they are free of the central causal factor of undue influence: not intimacy per se but the gendered power dynamic within heterosexual intimacy that has characterised almost all reported cases. The first part of the paper examines the courts' treatment of gay and lesbian couples in other areas of equity and concludes that the absence of gender role assumptions leads courts to treat lesbian and gay claimants more equitably than they do heterosexual women. The second part focuses on the potential for gay and, especially, lesbian relationships to act as models of more egalitarian relationships than heterosexual ones. The dominant discourse of inclusion within the gay and lesbian legal lobby is problematised, and the paper concludes that what is needed is social and judicial recognition of what is different, not what is the same, about our relationships. (shrink)

In 2004, the U.K. parliament passed the Civil Partnership Act which provides a scheme to enable same-sex couples to obtain formal recognition of their relationships through the registration of a civil partnership. When the Civil Partnership Bill was making its way through parliament, attempts were made in the House of Lords to derail the Bill through amendments seeking to extend the Bill to certain familial relationships of care and support. In order to counter these attempts and to facilitate the removal (...) of the amendments, the government gave the assurance that the matter of the economically vulnerable cohabitant would be referred back to the Law Commission for England and Wales for review. Consequently, in July 2005, the Law Commission commenced its project on cohabitation. This paper seeks to examine models of reform (such as the one proposed by the Law Society of England and Wales in its 2002 Cohabitation report) as well as those introduced in other Commonwealth countries. The aim is to identify some of the crucial questions that the Law Commission will need to give careful consideration to if they are to make recommendations that will provide a more radical approach to this area of the law, rather than adopt the more conservative approach of including cohabitation in ‘piggy back’ mode on the marriage model. (shrink)

In July 2002, the U.K. Law Commission published its Discussion Paper No.287 on home-sharing. The conclusion drawn by the Law Commission was that it would not be possible to devise a statutory scheme for the resolution of family property disputes which is both workable and flexible enough to deal with the wide range of personal relationships that exist. It further took the view that, with appropriate changes to the way in which trusts principles are currently interpreted and applied by the (...) courts, these trusts principles are sufficiently flexible and coherent to deal with the question of ascertaining and quantifying property rights over the family home. The aim of this paper is to examine the implications of these particular conclusions drawn by the Law Commission for both the law of trusts and the resolution of family property disputes between cohabitants. In particular, the paper will consider the extent to which trusts law remains a workable and desirable option and whether any mileage may be gained by drawing on the human rights culture that is emerging in U.K. legal and political discourse. (shrink)

This article explores the role of contract law inintimate relationships, focussing on tacit or onlypartially express agreements rather than expressprenuptial or cohabitation contracts. It welcomes theembrace of relational contract theory by feminist andgay and lesbian commentators, but argues that keydifferences between commercial and intimaterelationships need further analysis if the potentialof relational theory in cases of informal agreement isto be realised. The first difference is that,while commercial contracts can draw on the context ofa contracting community as a source of norms to (...) fillgaps in agreement, there is no equivalent source ofnorms for intimate relationships. The seconddifference is that, although relational theory entailsthe attenuation of self interest in commercialcontracts, in intimate relationships the sense inwhich self interest is attenuated is quite different,with the result that concepts such as cooperation andaltruism have different meanings. The result of thesedifferences is that, in some intimate relationships,there will be informal understandings falling short ofbargain, which will be unenforceable – under bothorthodox contract law and more relationalinterpretations of it. It is argued that many suchinformal agreements are distinguishable from mostgratuitous promises because they are characterised bya degree of reciprocity between the parties. Thepossibility of the law of contract recognising suchnon bargain agreements based on reciprocity isexplored, and it is argued that the enforcement ofsuch agreements represents a less distorting legalresponse than that available through the use ofpromissory estoppel. (shrink)