Reconceptualising Cohabitation Reform as a Human Rights Issue

Abstract

This thesis will explore how human rights arguments can be used to reconceptualise the cohabitation debate. It will do so through an analysis of the methodology developed in McLaughlin and other recent cases which have seen cohabitants use Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to challenge the disparity in treatment between themselves and spouses/civil partners. This thesis will argue that the approach of the Supreme Court in McLaughlin is significant for two reasons. The first is that it must be understood as embodying two distinct Article 14 methodologies, coined by this thesis as the ‘formalisation-blind’ and the ‘formalisation-centric’ methodologies. The second is that the successful claim was premised on the Article 14 rights of children. Through an analysis of six hypothetical claims attacking differences in treatment that take effect on the death of a partner or relationship breakdown, this thesis will demarcate the breadth of each distinct methodology to identify which would likely be deployed in each hypothetical claim and how this would dictate the likelihood of success. It will also explore how the presence of children could play a crucial role in the deployment of Article 14 and could influence the success of future claims. This analysis will illuminate how the interaction between human rights and cohabitants in recent cases could reshape the debate surrounding cohabitation reform by emphasising how a lack of legal protections for cohabitants should be understood as an inequalities issue facing both cohabitants and their children.