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Family law Essay - cohabitation

Law (The University of Warwick)

StudeerSnel wordt niet gesponsord of ondersteund door een hogeschool of universiteit

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Key Focus:

1. What is the law on Cohabitation?

2. Does the law provide sufficient protection to cohabitants? If not, where
are they lacking?
3. What are the reforms/possible reforms?

A. What is the law on Cohabitation?

1. Development of the law

There is a general development of the law towards the recognition of

cohabiting couples as a ‘family’.

Early 20th century Cohabitation is rare

Legal rights conferred in exceptional circumstances

Mid 20th century Cohabitation still relatively rare

But recognised in legislation – but only negatively – ie:

the ‘cohabitation rule’

Late 20th century Gradual introduction of positive rights for

cohabitants as more couples begin to live together
outside marriage

This gradual introduction of positive rights include:

 Rights conferred indirectly
o ie: on account of a particular characterstic
o Inheritance (Provision for Family and
Dependants) Act 1975: ‘dependents’
entitled to bring a claim for provision from
the estate of the deceased
 Rights conferred directly
o ie on account of the cohabiting
relationship
o Domestic Violence and Matrimonial
Proceedings Act 1976: court able to
make an order excluding a violent
cohabitant from the shared family home.

Dyson Holdings Recognition of (heterosexual) cohabiting couples as

Ltd v Fox (1976) ‘family’

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Cooke v Head Cohabitants were held to be entitled to an interest

(1972) under a constructive trust

Eves v Eves
(1975)

Focus of Eg:
legislations on  Family Law Reform Act 1987,
parents, regardless  Children Act 1989
of whether being
married or not This reflects the recognition of cohabitants by the law
as they are treated the same as married couples

B. Is it necessary to reform the law on cohabitation?

1) Due to these developments in the law, it appears the cohabitants are

afforded sufficient protection, perhaps as much married couples
a) Research established that a majority of cohabitants & population at
large believe that there is such a thing as “common law marriage” –
which they believe would give them similar rights as if they were
married
b) but this is NOT true – it is only a myth about co-habitation

2) In reality, cohabitants are usually afforded less rights when compared to

married couples

Same Protection in cases of domestic violence

rights
Right to apply for an occupation order – where the cohabitant has
rights in the home – Family Law Act 1996, S.36

Lesser Right to apply for an occupation order where the cohabitant does
rights NOT have rights in the home

Right to apply for provision where the relationship ends in death

No rights No right to apply for a share in the family assets on the basis of
the relationship

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There is an overwhelming support for a reform of the law in regard to

cohabitant. However, there are issues and concerns raised, which this essay
would seek to address, followed by arguments in support of reform.

3) The current law is INADEQUATE – the case for reform – based on the
Law Commission’s recommendation 2007

Current position It is inaccurate to say that the existing law completely ignores
for cohabitants cohabitants altogether

Where there is a dispute on property at the breakdown of the

relationship – cohabitants are only able to rely on a patchwork
of legal rules
 Property law,
 Trusts law,
 Contract and
 Estoppel

However, LC criticized this to be inadequate:

 Complex,
 Uncertain,
 Expensive to rely on, and
 Not designed for family circumstances as it would usually
give rise to outcomes that are unjust

Inadequacy of In the absence of a cohabiting agreement, unmarried couples

current law may would most commonly have to rely on the law of trusts in
lead to unjust other to order to obtain some portion of the asset.
outcomes
Under the law of trusts, the cohabitant has to prove the existence
of express, resulting or constructive trust.
 In order to prove express trust,
o s/he has to prove that it has been expressly agreed
between the couple that the property would be
shared –through an express declaration of trust
o if so, conclusive
o but, the declaration must be evidence in writing LPA
s.53(1)(b)
 In order to prove resulting trust,
o S/he has to prove that she has contributed to the
initial purchase price unless It is a loan or gift
o Stack v Dowden

If s/he is unable to rely on either of these, s/he would have to rely

on constructive trust
 Where s/he has relied on an agreement to share a

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beneficial interest and acted to his/her detriment

However, case law has proven that this can be DIFFICULT TO

FULFILL
 Usually, only financial contributions are considered
sufficient
 Even under a more general approach of Grant v
Edwards, the detrimental act must be one that would not
have been conducted without the agreement.
 Hence, contributions such as taking care of the children
were not regarded as a detrimental act, but one out of love
and affection – and may be considered to be sufficient in
establishing an interest in the property.
 This is evidenced in the case of Llyods Bank v Rosett (?)

Hence, it is evident that this may potentially lead to unjust

outcome
 Vulnerable parties are usually women

Inadequacy of the Although Schedule 1 to the Children Act 1989 gives the courts
current law power to make certain financial orders for the benefit of children
extends to  regardless the nature of the parents’ relationship…
children
However, there is a lack of specific statutory remedies afforded to
cohabiting parents on separation which hampers the
effectiveness of those powers
 Especially where assets are relatively limited

In order to fully utilize the limited asset, the courts need power to
adjust the parents’ property rights
 This power is not provided even under a reformed Children
Act – as the legislation is concerned exclusively with
making provision for the benefit of the child

It must be noted that this is available for married couples

 as the S.25 MCA 1973 provides that the welfare of any
minors should be given first consideration in the
allocation of resources

Inadequacy of As a result – a party to cohabitation potentially face hardship on

current law may separation, including their children.
actually increase
the cost of G In many cases, these relationship breakdowns may lead to
reliance on the State in the form of claims to welfare benefits and
social housing.

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4. Case against reform

Public education It must be emphasized that there are ways that individuals could
sufficient to enable protect themselves against vulnerability – most common
individuals to make  example: cohabitation agreement / get married
informed choices
Hence, the argument follows the “common law myth” can be
overcome by improving public information and to educate the
public about the true legal position.

However, although public awareness of the law is essential, LC

said that there is evidence to suggest this is insufficient - there
are many reasons why cohabitants do not or cannot take steps
to protect themselves – eg:
 not feasible to “get married” if the other party does not
want to do so,
 because if that were the case, the only alternative is to
leave the partner
 clearly non-benefial to the couple, esp if there are
children involved

Hence, reform is clearly needed to remedy the inadequacy of

the current law to protect these families.

Reform may Opponents of reform argue that reform may threaten the
threaten the sanctity of sanctity of marriage.
sanctity of
marriage That argument follows:
 the recognition of an relationship other than marriage
would devalue the institution of marriage
 some also argue that legal considerations are one of the
main considerations when couples decide to get married
 Hence, the institution as marriage would also arguably be
further devalued if the law were to afford cohabitants
equal rights as married couples

Counter-argument: this line of argument is flawed as it is based

on a misconception
 reform does not necessarily afford cohabitants equal
rights as married couples

In fact, this position was confirmed by the LC

 emphasised in the 2007 LC recommendation that a
separate financial relief regime would be created for
cohabitants
 Hence, would not be inconsistent with supporting
marriage as an institution

Furthermore, the interest in preserving the sanctity of marriage

must be balanced with the interest to protect families in the

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wake of separation.
 Statistics have shown that not only is the number of
cohabiting couples increasing, but these unmarried
couples are just as likely to have children as those who
are married
 Hence, to maintain a law which is inadequate in
providing sufficient interest for mere sake of
preserving the symbolism of marriage – in light of a
clear societal acceptance of cohabitation – is idealistic,
old fashioned and untenable.

Conclusion: yes, the current law should be reformed!

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C. Does the Cohabitant Bill 2015 (the Bill) rightly strike the balance
between sanctity of marriage and the interest to protect
cohabitants?

Or does the Bill undermine sanctity of marriage?

1. Provisions espoused in the Bill

Eligibility ‘living together as a couple in a joint household’ without being

parties to a legally recognised marriage or civil partnership AND

have had a child together, OR

have been together for a specified period of time (proposed 5
years)

Grounds for Claimant must be able to prove EITHER:

relief  Retained benefit
o Ie: the respondent ‘has a retained benefit…as a result
of qualifying contributions the applicant has made’
 Economic disadvantage
o Ie: the loss that the claimant WILL suffer as a result of
contributions made during the relationship

Quantification of Underlying principle: a retained benefit is to be reversed while

remedy economic disadvantage is to be shared

BUT only ‘in so far as that is reasonable and practicable’ having

regard to a list of discretionary factors:
 the welfare while a minor of any child of both parties who
has not attained the age of eighteen;
 the financial needs and obligations of both parties;
 the extent and nature of the financial resources which each
party has or is likely to have in the foreseeable future;
 the welfare of any children who live with, or might
reasonably be expeted to live with, either party; and
 the conduct of each party, defined restrictively, but so as to
include cases where a qualifying contribution can be shown
to have been made despite the express disagreement of
the other party.

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2. Yes, it could potentially undermine the sanctity of marriage

Reform – reflects Opponents of reform argue that reform may threaten the
the recognition of sanctity of sanctity of marriage.
cohabitation in the
eyes of the law That argument follows:
 the recognition of an relationship other than marriage
would devalue the institution of marriage
 some also argue that legal considerations are one of the
main considerations when couples decide to get married
 Hence, the institution as marriage would also arguably
be further devalued if the law were to afford cohabitants
equal rights as married couples

Counter-argument: this line of argument is flawed as it is based

on a misconception
 reform does NOT necessarily afford cohabitants equal
rights as married couples
 In fact, this position was confirmed by the LC
 emphasised in the 2007 recommendation that a
separate financial relief regime would be created for
cohabitants – would not be inconsistent with supporting
marriage as an institution

Furthermore, the interest in preserving the sanctity of marriage

must be balanced with the interest to protect families in the
wake of separation.
 Statistics have shown that not only is the number of
cohabiting couples increasing, but these unmarried
couples are just as likely to have children as those who
are married
 Hence, to maintain a law which is inadequate in
providing sufficient interest for mere sake of preserving
the symbolism of marriage – in light of a clear societal
acceptance of cohabitation – is idealistic, old fashioned
and untenable.

Cohabitants as akin Neutral definition for those eligible under the Bill
to spouses in the Bill  Cl.2(1)(a): ‘two people…who…live together as a couple’

The definition is similar to the orthodox definition of marriage in

Bromley, Family Law (1957) – ie:
 “basic social unit which consists normally of a husband
and wife…”

The difference is the label of “husband and wife” attained at

marriage
 but the essence of a social unit which recognition of two
people living together as a couple, is present in the
definition provided by the Bill

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Division of assets on separation based on concepts of retained

benefit and economic disadvantages
 Divorce: reflected in the compensation principle which is
used to guide the judiciary when deciding matter on
asset reallocation.

However despite these nuances, the sanctity of marriage is

arguably preserved as the Bill creates separate financial relief
regime for cohabitants
 would not be inconsistent with supporting marriage as
an institution

Furthermore, the 2015 Bill requires a qualifying criteria: having

a child together OR living together as a couple for 5 years
 Not everyone in a cohabiting relationship would be able
to rely on this Bill
 This eligibity criterion is not required for married couples
– the only criterion is that there was a valid marriage

3. No it would not undermine the sanctity of marriage – but instead offers

better protection to cohabitants

Current position It is inaccurate to say that the existing law completely ignores
for cohabitants cohabitants altogether

Where there is a dispute on property at the breakdown of the

relationship – cohabitants are only able to rely on a patchwork
of legal rules
 Property law,
 Trusts law,
 Contract and
 Estoppel

However, LC criticized this to be inadequate:

 Complex,
 Uncertain,
 Expensive to rely on, and
 Not designed for family circumstances as it would usually
give rise to outcomes that are unjust

Inadequacy of In the absence of a cohabiting agreement, unmarried couples

current law may would most commonly have to rely on the law of trusts in other to
lead to unjust order to obtain some portion of the asset.
outcomes

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 lOMoARcPSD|1552153

Under the law of trusts, the cohabitant has to prove the existence
of express, resulting or constructive trust.
 In order to prove express trust,
o s/he has to prove that it has been expressly agreed
between the couple that the property would be
shared –through an express declaration of trust
o if so, conclusive
o but, the declaration must be evidence in writing LPA
s.53(1)(b)
 In order to prove resulting trust,
o S/he has to prove that she has contributed to the
initial purchase price unless It is a loan or gift
o Stack v Dowden

If s/he is unable to rely on either of these, s/he would have to rely

on constructive trust
 Where s/he has relied on an agreement to share a
beneficial interest and acted to his/her detriment
 However, case law has proven that this can be difficult to
fulfill
 Usually, only financial contributions are considered
sufficient
 Even under a more general approach of Grant v Edwards,
the detrimental act must be one that would not have been
conducted without the agreement.
 Hence, contributions such as taking care of the children
were not regarded as a detrimental act, but one out of love
and affection – and may be considered to be sufficient in
establishing an interest in the property.

Hence, it is evident that this may potentially lead to unjust

outcome
 Vulnerable parties are usually women

Under the Bill, as long as the applicant is able to prove one of the
2 grounds, would be able to apply for a Financial Settlement
Order.
 Seeks to achieve a clean break where possible
 Avoid continuous obligation where necessary
 Would place the parties in the position as if the relationship
did not occur

Inadequacy of the Although Schedule 1 to the Children Act 1989 gives the courts
current law power to make certain financial orders for the benefit of children –
extends to regardless the nature of the parents’ relationship…
children
There is a lack of specific statutory remedies afforded to
cohabiting parents on separation hampers the effectiveness of
those powers

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 Especially where assets are relatively limited

In order to fully utilize the limited asset, the courts need power to
adjust the parents’ property rights
 This power is not provided even under a reformed Children
Act – as the legislation is concerned exclusively with
making provision for the benefit of the child
 it must be noted that this is available for married couples,
as the MCA 1973, s.25 provides that the welfare of any
minors should be given first consideration in the allocation
of resources

the Bill provides a list for the courts to consider during its
assessment
 welfare of any minor who is a child of either of the parties
 furthermore, if passed the Bill would give the court power to
reallocate the properties – addressed the problem

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