#1858 - Unmarried Co Habiting Couples - Family Law

Unmarried Co-habiting couples

What are unmarried co-habiting couples? The difficult in the definition

• Herring: The term “co-habiting couple” can range from a group of students living together in a flat share

  • To a boyfriend and girlfriend living together while contemplating marriage

    • to a couple who have deliberately avoided marriage but wish to live together in a permanent stable relationship

• Barlow, Burgoyne and Smithson (2007):

  • Four types of cohabitees:

    • The Idealogues

      • Those who are in long term committed relationships but are opposed to the ideology of marriage

    • The Romantics:

      • Those who expect to get married eventually and see co-habitation as a step towards marriage

        • Which they saw as a serious commitment

    • The pragmatists

      • Those co-habiting who were deciding whether to get married based on legal or financial grounds

    • The uneven couples

      • Where one partner wanted to marry and the other did not!

• Kimber v Kimber

  • Tyrer J:

    • The following factors might be considered in deciding whether there is cohabitation:

      • Whether the parties live together under the same roof

      • Whether they shared in the tasks and duties of daily life

      • Whether the relationship had stability and permanence

      • How the parties arranged their finances

      • Whether the parties had an ongoing sexual relationship

      • Whether the parties had any children and how each party acted towards each other’s children

      • The opinion of the reasonable person with normal perceptions looking at the couple’s life together

• Some statutory attempts at defining it:

  • S.144 (4)(b) Adoption and Children Act 2002:

    • “Two people (whether of different sexes or the same sex) living as partners in an enduring family relationship”

      • Can adopt

  • Family Law Act 1996:

    • “two or more persons who, although not married to one another, are living together as husband and wife or (if the same sex) an equivalent relationship.

• Some Stats

  • National Statistics (2007): 14% of Families are cohabiting couples

  • National Statistics (2008): 44% of children were born to unmarried couples

  • Matheson and Babb (2003): 80% of births to unmarried couples are registered by both parents

What’s the difference between the legal positions of spouses or civil partners and unmarried couples?

• The Formalities at the beginning and end of the relationship

  • How they are different

    • The law closely regulates the beginning and end of a marriage or civil partnership.

      • It sets out certain formalities which must be complied with in order for a legal marriage/civil partnership to start

        • And it only ends when the court grants a decree absolute of divorce or a dissolution

    • Every legal marriage in the land is registered – there is no such requirement for cohabiting couples

    • One consequence is that you can cohabit with whoever you want.

  • Are we overstating this?

    • It’s true that the married need to divorce and cohabiting couples can just separate as they wish

    • However, the formalities are rather easy to comply with both at the start and end of the relationship

      • If you are unmarried, there’s an awful lot of paperwork and potential litigation to go through in order to separate joint bank account, bills, house etc.

• Financial Support

  • As in Week 2 notes, there are quite a lot of differences between married couples and unmarried couples in terms of court powers of ancillary relief

    • The court can redistribute the assets of a married couple one to the other on divorce

    • The court can only declare ownership of assets for an unmarried couple – per Stack, it cannot change who actually has what based on fairness.

  • However...

    • It will matter a lot if you’re wealthy – but most couples don’t actually have that many assets, so the paperwork will be fairly simple for both married and unmarried couples

    • And the first thing the courts do will be to specify under Child Support Act 1991 and Children Act 1989 the position of maintenance

      • This will often take most of the assets

      • And applies equally to married and unmarried couples

    • And the courts have fought back against the lack of formal ancillary relief provisions by deploying equitable doctrines such as the constructive trust in order to provide some relief

      • – although obviously there’s quite a lot of litigation involved in this.

• Parental Responsibility and Legitimacy of Children

  • Legitimacy of children used to be a key difference between married and unmarried couples, but this is not really relevant anymore

  • What is relevant is that while all mothers have parental responsibility

    • There is no responsibility given automatically to the father if the couple are not married (although they can register on the birth certificate)

Specific legal recognition for co-habiting couples

• Provision on death

  • Inheritance (Provision for Families and Dependents) Act 1975 s.1

    • Where ...a person dies ...and is survived by any of the following persons:—

      • (a)the wife or husband of the deceased;

      • (b)a former wife or former husband of the deceased who has not remarried;

      • [F1(ba)any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) below applies;]...

    • that person may apply to the court for an order ... on the ground that the disposition of the deceased’s estate effected by his will

      • or the law relating to intestacy, or the combination of his will and that law,

        • is not such as to make reasonable financial provision for the applicant.

    • [F2(1A)This subsection applies ...[if] during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

      • (a)in the same household as the deceased, and

      • (b)as the husband or wife of the deceased

• Succession to tenancies (applies also to unmarried homosexual couples)

  • Ghaidan v Godin-Mendoza [2004]: D had lived in a stable homosexual relationship with Z, who was the protected tenant of a flat owned by C. When Z died, C started possession proceedings. D argued that the word “spouse” in legislation permitting succession to tenancies was contrary to Art 8 and 14 as while it extended to unmarried couples living as man and wife, it placed a homosexual partner at a disadvantage compared to a survivor of a heterosexual relationship.

    • Lord Nicholls:

      • Protection of the traditional family unit may well be an important and legitimate aim in certain contexts.

        • But what traditional family is being protected?

          • Marriage is not now a prerequisite to protection

          • Nor is parenthood, or the presence of children in the home required

          • And neither is procreative potential a prerequisite.

      • The reason underlying this policy to allow succession of tenancies

        • whereby the survivor of a cohabiting heterosexual couple has particular protection,

        • is equally applicable to the survivor of a homosexual couple.

          • A homosexual couple, as much as a heterosexual couple, share each other's life and make their home together. They have an equivalent relationship

    • Baroness Hale:

      • Working out whether a particular couple are or were in such a relationship is not always easy. It is a matter of judgement in which several factors are taken into account.

        • What matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial interdependence.

        • Homosexual relationships can have exactly the same qualities of intimacy, stability and interdependence that heterosexual relationships do.

• Transfer of Tenancies

  • Family Law Act 1996 Sched 7

    • Para 3:

      • (1) This paragraph applies if one cohabitant is entitled, either in his own right or jointly with the other cohabitant, to occupy a dwelling-house by virtue of a relevant tenancy.

      • (2)If the cohabitants cease to live together as husband and wife, the court may make a Part II order.

    • Para 4

      • The court shall not make a Part II order unless the dwelling-house is or was—

        • (a)in the case of spouses, a matrimonial home; or

        • (b)in the case of cohabitants, a home in which they lived together as husband and wife.

    • Para 5

      • In determining whether to exercise its powers ...[and] in what manner, the court shall have regard to all the circumstances of the case including—

        • (a)the circumstances in which the tenancy was granted to either or both of the spouses or cohabitants

        • (b)the matters mentioned in section 33(6)(a), (b) and (c)

          • and, where the parties are cohabitants and only one of them is entitled to occupy ... by virtue of the relevant tenancy,

            • the further matters mentioned in section 36(6)(e), (f), (g) and (h); and

        • (c)the suitability of the parties as tenants.

• Occupation of the family home (Family Law Act s.36)

  • When it applies

    • (1) This section applies if—

      • (a)one cohabitant or former cohabitant is entitled to occupy a dwelling-house...[by some measure]

      • (b)the other cohabitant or former cohabitant is not so entitled; and

      • (c)that dwelling-house is the home in which they live together as husband and wife

        • or a home in which they at any time so lived together or intended so to live together.

    • (2)The cohabitant or former cohabitant not so entitled may apply to the court for an order ... against the other cohabitant or former cohabitant.

  • Things the order can do

    • (3)If the applicant is in occupation, an order ... must contain provision—

      • (a)giving the applicant the right not to be evicted/excluded from the dwelling-house or any part of it ... for the period specified in the order; and

      • (b)prohibiting the respondent from evicting or excluding the applicant during that period.

    • (4)If the applicant is not in occupation, an order under...