Cohabitation in the UK

Name: Low Gin Tung @ Nick
Lecturer: Miss Mary George
Year: 2014
Grade: Second upper (High)

Question: 
Do you agree that developments in the law - statute and case law - over the last decade not only undervalue and undermine the institution of marriage but also discriminate fairly against those who cannot or decide not to marry?

The law on cohabitation presents an awkward dialectic. On the one hand, there is the ultimate desire to recognise cohabitants’ rights similarly as a married couple; a truly altruistic ideal. Yet, on the other hand, this is negated by the clear need  to uphold the institution of marriage. Analysis of the development of these areas since the 19th century demonstrates quite lucidly the extreme hesitancy of the courts to recognise cohabitants as married couple as can be seen in the case of Gammans v Ekins where it was famously deemed an ‘abuse of the English Language’ to say that an unmarried couple ‘masquerading’ as husband and wife were members of the same family. How far then, have we come, from a starting point of almost blatant refusal to recognise their rights in the mid-nineteenth century, and just how far have we left to go to achieve the ultimate aspiration of an equitable synthesis?

Sir Paul Coleridge in his speech “Lobbing a few pebbles in the pond; the funeral of a dead parrot’ during the Family Law Conference 2013 observed that ‘ if we can agree about one thing today it is surely the world we inhabit today is not the same world as we inhabited in 1950”, thus calling for a drastic change, if not a metamorphosis, in the current family law of UK. It is no doubt that the traditional idea of the family has changed significantly. Prima facie, the Cabinet Office and Department for Children, Schools and Families in their evidence paper, Families in Britain published in December 2008 suggested that “there is arguably no longer a one-size fits all family in Britain today. But this is diversity and not decline. The reality in many people's everyday lives is that more and more families experience a range of family forms throughout their life time. There is no single family form that guarantees happiness or success’.  

 ‘Cohabitation’ and ‘cohabitant’ can somewhat be a difficult topic to clarify. Clarification from this muddle, The Family Law Act 1996 defined ‘cohabitation’ as ‘a man and woman who, although not married to each other, are living together as husband and wife’. However, such definition is limited, as it does not acknowledge same-sex couples. In struggling to define what is meant by ‘cohabitation’, the case of Kimber v Kimber (2001) had laid down criteria which include membership of same household, sharing daily life, stability, financial support, sexual relationship, children and public acknowledgement. Such criteria are useful to see what the state regards as hallmarks of a ‘cohabiting’ relationship.

In discussing the various issues surrounding cohabitation, it is essential to analyse the aims and strategies of the Law Commission’s report ‘Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No. 307)’, in relation to the need for reform with regard to cohabitation. It suggests that there is a significant change in social attitude and the current law is inadequate and out-dated. Therefore, legal remedies should be in place to protect cohabiting couples should they separate in future. However, it can be argued that although there is a change in social attitude towards cohabitation, individuals who believe in the sanctity and religious views of marriage maybe offended at the way in which the significance of marriage has been de-emphasised.

Law of Property or Family Law?

Samantha Singer (2009) has noted that ‘the range of property law principles and approaches available produce an unnecessarily expensive and cumbersome process for the often distressed law client’. Furthermore, Gilmore and Glennan (2012) argued that the current law is unsatisfactory and their property rights should be determined by a family law, not a property law regime. The central belief is that cohabitants are able to protect themselves against economic disadvantages through measures such as placing property in joint names. However, this belief has proven not always to be of actuality.

In Stack v Dowden, unequal shares were declared on the basis that the parties kept their financial affairs separate and the claimant made greater financial contributions. In Jones v Kernott, the trial judge rules that the claimant’s investment towards the purchase of property, particularly since separation, meant that she was entitled to greater shares. Stuart Bridge in ‘Cohabitation: Why legislative reform is necessary?’ (2007) suggested that ‘the current law is complex, uncertain and likely to give rise to unfair outcomes because it does not take into account the economic consequences of contributions made by parties, particularly non-financial contributions such as one partner giving up work to raise a child.’ In evaluating Stack v Dowden and Jones v Kernott, there is evidence to suggest that the law relating to property seems somewhat ‘at sixes and sevens’ and may differ depending on the circumstances on every case. This point, in turn, ties in with the current law on resulting and constructive trusts. A party contributing financially would be entitled to a share in property, however, the Law Commission argued that the constructive trusts cannot accommodate ‘contingent’ intentions and that the Court is unable to substitute its view of what is fair, but must adhere to the intentions of parties.

In evaluating this point, it is inferred that regardless of the financial contributions made in a cohabiting relationship, the rights that cohabitee think they have in equity, is in fact not always the case. In actuality, economic disadvantages may still occur irrespective of a joint tenancy being in place or not which would be defeating the whole purpose of what is called ‘equity’ in terms of being fair, just and impartial. Baroness Hale commented on this contentious issue by stating, “There is some reason to think that a family law remedy as proposed by the Law Commission would be less costly and more productive of settlements as well as achieving fairer results than the present law”.

The Obligations & Financial Responsibility

Edward Hess in ‘The rights of cohabitants: When or how will the law be reformed’ (2009) suggested that it is easy to identify a marriage certificate but it maybe much more difficult to pin down precisely what amounts to cohabitation. It can be argued that some of the individuals that choose to cohabit may not want the formality or legal obligation that the state may impose on them upon entering into a marriage or civil partnership. Conversely, the Law Commission argued this point by stating that many cohabitants think it wrong to marry purely for legal or financial reasons and they may not be willing to get married unless they can do it ‘properly'. Baroness Hale in Gow v Grant (2012) stated that, “For many couples, cohabitations is the preliminary to the marriage they hope to enter into one day”. In agreement with this point, it is also necessary to consider the financial responsibility involved in entering a marriage or civil partnership and whether individuals have the capability to engage in such.

Also, there are many circumstances where one cohabitee has relied heavily upon heavily their partner and has been at an economic disadvantage on separation. A classic example of this point was picked up on in the Scottish case of Gow v Grant. Here, the Supreme Court’s decision was in favour of the claimant as she had suffered economic disadvantage by cohabiting with her partner. Baroness Hale suggested that there are lessons to be learned from this case in England and Wales. The main lesson from this case is that a remedy such as this is both practicable and fair, focusing on where parties were at the beginning of the relationship and where they are at the end. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship. Subsequently, Steve Kirwan who leads Resolution's work on cohabitation, proposed an ‘opt in’ scheme which would require couples to register in order to claim financial remedies upon separation. However, there is evidence to suggest that as some couple still believe in the ‘common law marriage’ myth, it would be unlikely to assume that these couples would engage in such a scheme.

Commentaries

With the very nature and fluidity of Family law, many attempts at cohabitation law are met with a high degree of confusion even by the most learned minds. The burning question now becomes whether cohabitants should be given more protection or whether the current law should stand still and strong as it is now? The story so far suggest an uneasy compromise falling somewhere between these polar opposites. Perhaps a few commentaries, particularly by Peter Tatchell and Baroness Deech may clear the fog that blurs the eyes of law.

Peter Thatchell - The time for equality is now.

“In a democratic society, everyone should be equal before the law. This includes the right of same-sex couples to marry and be just as happy – or miserable – as married heterosexuals”. These wise words come from Peter Tatchell who is the pioneer of Equal Love campaign. He is in favour of broader, non-discriminatory and flexible system of partnership. The Equal Love campaign petitioned to end the bans on same-sex civil marriages and opposite-sex civil partnerships which contradict article 8, 12 and 14 of the ECHR. The bans on same-sex civil marriages and on opposite sex civil partnership is discriminatory and offensive. There is one law for straight couples and another law for gay partners. Two wrongs don’t make a right. Hence, any reforms brought forward by this campaign that would change the law of cohabitation are much anticipated in the near future.

Baroness Deech – A windfall for lawyers?

Conversely, Baroness Deech’s speech on cohabitation caused controversy after she described Lord Lester's proposals as "a windfall for lawyers but for no one else except the gold digger" and that it "retards the emancipation of women". Similarly, Professor Cretney who is a former law commissioner, questioned the uncertainties on why those cohabitants who express distaste for marriage should want the benefits of a comparable legal regime of a married couple.

Prima facie, the law is inconsistent and tends to treat woman as dependents who have to be kept. Baroness Deech was of the view that woman of the 20^th century should be able to exercise free choice whether or not to stay at home and care for the children despite single or cohabiting. The Bill, if passed, will label women as worth what their man is worth, once and for all. Her preference is for the rights of an individual. Such rights include autonomy, privacy, a sphere of thought and action that should be free from public or legal interference. Baroness Deech encouraged cohabitants to make binding prenuptial or postnuptial agreement and that current law, which is the law of trusts and Schedule 1 Children’s Act 1989, are sufficient enough to govern cohabitants.

The Approach of Other Jurisdictions

The approach of other European and Commonwealth countries to financial provisions for cohabitants on separation is considerably more progressive and far-reaching than the proposals made by the Law Commission. In fact, the approaches of some countries such as Belgium, Denmark and Sweden have had some form of legislation in place for several years. The approaches taken by these countries is to develop the idea of civil union whereby the law recognises defacto partnerships between unmarried persons. In New Zealand, the Civil Union Act has been in place since 2004 and extends certain rights and obligations to cohabitants. The Netherlands introduced registered partnerships in 1998 and, despite the fact that the driving force behind this was to benefit same sex couples, statistics had shown one third of registered partnerships were entered into by heterosexual couples. Arguably, the greatest development of the civil union concept has occurred in France. In 1999, the French government introduced the pacte civil de solidarite (PACS) which has proved to be a popular alternative to marriage amongst cohabiting couples.  It confers fewer rights and imposes fewer responsibilities than marriage and has become socially acceptable in France. Hughes, David and Jacklin (2008) in “Come live with me and be my love” (2008) have expressed strong support for the use of PACS in the UK, however, the Law Commission made no reference to PACS in its report. Thus, there remains when the idea of PACS will sprout up again.

In sum, borrowing the words from Sir Paul Coleridge verbatim, “the days of the gladiatorial wars of the titans are over. The dinosaurs have had their day”. The law on cohabitation during the 19^th century no longer fit any purpose. It was designed in a wholly different era to deal with a wholly different society and way of life. In the immortal words of John Cleese, it is a dead parrot. It is no more; it has gone to meet its maker. Family law in the UK ought to be more innovative and much more daring when dealing with cohabitation. Therefore, it is necessary for the government to look into some of the pressing issues on cohabitation in order for it to be dealt with accordingly.