ABSTRACT
The focus of this chapter is the tension between the way in which the law regulates rights in the family home, often a family’s only capital asset according to pure property law, and the perceived common ownership of the family home as the mainstay of family life. Attempts by the courts to address this tension have resulted in the law which governs an all-important aspect of family life becoming unnecessarily complex, uncertain and often unjust. This has been acknowledged by the Law Commission, 1 who themselves ultimately felt unable to make any recommendations for property-based reform of the law regulating home-sharers. 2 In the absence of any cohesive legislative reform, the courts have been left to balance the need for a coherent property law doctrine against the expectations of family law style justice in family home disputes. The difficulties inherent in such a task are compounded by the plurality of family structures which are accepted in our society today. Lifelong heterosexual marriage is no longer the automatic focus of partnering and parenting. In particular, unmarried cohabitation is increasing and is predicted to continue to do so. 3 The consequent shift in societal norms as to what warrants family law style regulation has helped to magnify the inconsistencies within the law relating to the family home.
