While only marriage tends to be mentioned, this includes Civil Partnerships and the equivalent provisions that exist within the CPA 2004. The legislation governing dissolution seeks, generally, to allow parties to effect a proper and meaningful split upon the occasion of their divorce and this can best be done in the context of short-lived marriages with no children. This principle is generally referred to as the “clean break” principle, which allows divorcees to get on with their newly single lives as best they can. With marriage and civil partnerships the law starts from a position that the relationship itself is worthy of the special protections afforded by law, broadly these are based upon paternalistic, or some might say, economic policies of ‘mutual support’ and ‘protection of the weaker party’. The financial provision on relationship breakdown for cohabitants is not accorded any special significance at law. You should look back to your study of Trust Law to reflect upon the possible implications of equitable ownership of property with respect to cohabiting couples.
The Matrimonial Proceedings and Property Act 1970 introduced wide-ranging powers to adjust property and make orders for ancillary relief, changes which were consolidated by the MCA 1973. The approach was initially based on the principle of ‘minimal loss’, where parties could expect to be placed in the position they would have enjoyed if the marriage had sustained. However, this was criticised as being inconsistent with modern notions of the dissoluble marriage, with some husbands in particular expressing resentment at having to support former wives for their entire lives. In 1980, the Law Commission recommended a change of emphasis rather than a radical legal change, and the subsequent legislation (Matrimonial and Family Proceedings Act 1984) provided that the needs of the child should take priority, with greater weight attached to the wife’s earning capacity and more case by case discretion...