Family Relationship Law

 

 

Is the law relating to cohabitants satisfactory.

 

 

In discussing the law relating to cohabitants, it is important to first explain what is meant by

 

the term cohabitant and its relationship to family. Family itself has become a subject

 

for discussion as it in itself now has a broader interpretation than it has had in the past

 

due to the changing nature of society in relation to what constitutes a couple. Also we

 

would need to discuss what the present law relating to cohabitants is and how it is applied.

 

recently the future in regard to cohabitants has been under review by the government with

 

a view to change the present law and consultation documents have been produced and

 

have been commented on by academics and others with a varied and mixed reaction.

 

In The Law Commission. Consultation paper no 179. 1 Examined the financial

 

consequences of the termination of cohabitants relationships by separation or death.

 

Over the last 30 years the has been a decline in the number of marriages, from roughly

 

52.2% for males and 42.5% for females per 1000 in 1982 to 21.3% and 19.2% in 20092,

 

but the number of cohabitant couples has increased, in fact according to the Office for

 

national Statistics, the number of opposite sex couples alone increased from 2.1 million in

 

2001 to 2.7 million in 20103, but with this preference of couples increasingly foregoing the

 

traditional marital unit to cohabit, this has caused problems in the way that the family is

 

itself defined. The traditional family unit, but, what constitutes a family?. To most people

 

the typical view is that of – a mother, a father and two children. Yet this “family” is not the

 

family the most people will have recognised, as seen in the statistics above.

 

In Fitzpatrick v Sterling Housing Association Ltd,4 the House of Lords held that for the purposes of the Rent Act 1977 the definition of "family" included a same-sex partner of a

 

deceased tenant. The Court recognized that a same-sex relationship can embody

 

essential familial characteristics signifying that evolving social conditions enlarged the

 

number of people who qualified as belonging to the same family under the legislation.

 

This had also been addressed in Dyson Holdings v Fox,5 where Lord Denning stated,

 

"The popular meaning given to the word 'family' is not fixed once and for all time. I have no

 

doubt that with the passage of years it has changed. The cases reveal that it is not

 

restricted to blood relationships and those created by the marriage ceremony. It can

 

include de facto as well as de jure relationships. The popular meaning of 'family' in 1975

 

would, according to the answer of the ordinary man, include the defendant as a member

 

of Mr. Wright's family. This is not to say that every mistress should be so regarded.

 

Relationships of a casual or intermittent character and those bearing indications of

 

impermanence would not come within the popular concept of a family unit."

 

The Family Law Act had by this time already included in its definition of “associated

 

persons”, those who “live or have lived in the same household”,6 these “associated

 

persons” will, of course now relate to cohabitants and bring into focus the legal and financial

 

implications that differ from marriage.

 

These implications are most important in regards to the breakdown of a cohabiting couples

 

relationship, and the family home. These problems normally bring into effect the Laws of Property

 

and of Equity, which can cause some difficulty in regards to who actually owns the home, although

 

the home ownership itself is a straightforward principle of contract and conveyancing but, the

 

principles of equity can lead to different results.

 

Cohabitation has come to be described as living together as husband and wife, there is however no

 

formal definitions of this but, the phrase or, variations of it , is often used in a legal context

 

( for example s 62(1) FLA 1996).

 

Fitzpatrick confirmed the phrase,but, limited it to opposite sex couples which now is rather outdated

 

as cohabitee's are now not only opposite sex couples but also same sex couples.

 

The Law Commission in its Fourteenth Annual Report acknowledged that there were

 

inconsistencies in legal definition, but has not yet addressed the problem:

 

“ There is a growing tendency for the law to attach specific legal consequences to relationships

 

outside marriage, nut there is not yet a wholly consistent approach in the different statutory

 

provisions...It may well be that there are valid policy reasons which dictate the use of different

 

language in different statutes; nevertheless there is clearly a risk the difficulties of interpretation will

 

occur.”7

 

There is an increasing number of situations in which legal rights or restrictions similar to those

 

applicable to married couples have been extended to members of heterosexual cohabiting couples.

 

This has been done principally by statute, such as the right to succeed to an assured tenancy

 

under s 17 Housing Act 1988, the right to claim financial provision against an deceased partners

 

estate (s 1(1)(ba) and 1 (1A) Inheritance (Provision for Family and Dependants) Act 1975);and the

 

right to apply for the transfer of the family home on relationship breakdown(Sc h 7 FLA 1966). As a

 

whole though, the law ignored the cohabiting relationship even though, to a lot of long term

 

cohabiting couples they thought of themselves as ' Common Law' husband and wife a myth that

 

has long prevailed.

 

Many people are shocked to discover their lack of rights in relation to the property in which they lived

 

with their partner. The concept of 'common law wife' ended in1753 with the passing of the Marriage

 

Act which stipulated that no marriage other than one conducted in the Church of England by an

 

ordained Anglican priest was valid. Many cohabitants do not discover their lack of legal status until

 

there partners death when it is often to late.

 

Many couples who live together considered themselves a family unit in society they name each

 

other as their next of kin, rent accommodation together and purchase household goods together.

 

Although it may be that no provision for contingencies such as death of one of the parties or

 

breakdown of the relationship is made,most, as a rule allow people to appoint a person of the

 

choosing as the next of kin for any purpose, whereas upon marriage a spouse automatically

 

assumes this role, the consequences of this are that unmarried cohabiting couples be they

 

heterosexual are not in much greater need than that of their married counterparts, even though

 

they have the presumption that they had rights after a period of living together and as far as Social

 

Security laws are concerned, cohabitants are treated as if they were husband and wife foremost

 

benefits which only enforced the myth of the common law wife.

 

In Watson v Lucas [1980]8, a woman lived with a man for some time, although he was still married

 

to his wife. It was held that she was a member of his family for the purposes of the Rent Acts, so

 

she could inherit his tenancy, because of the lasting relationship between them.

 

Cohabitants do not benefit from statutory right to occupy the family home ,this is a key issue on the

 

separation of a cohabiting couple unlike married couples and those in civil partnerships courts do

 

not have the statutory discretion to redistribute property when a relationship breaks down this

 

means that the law of trusts becomes very important. Were one of the parties hold legal ownership

 

of the property this is complex area of law, of which there are two key issues;

 

1. did the parties intend to share ownership of the property?.

2. if they did intend to share ownership, what sure do they have?.

 

In Eaves v Eaves,9 Mr eaves told his cohabitant (who had renamed herself Mrs eaves by deed poll)

 

that, if she had been 21 years of age, he would have put the house into their joint names but that,

 

as she was younger, it would have to be put in his name alone. In fact, he said this to avoid putting

 

the property into joint names. She did a great deal of work to the house. It was held that she had an

 

interest in the property. The majority of the court of appeal in third an agreement that Mrs Eaves

 

would contribute a Labour to a house in which she had beneficial interest. Lord Denning based his

 

judgement on what Mrs Eaves expressly stated rather than his unspoken intention.

 

Although the court inferred a common intention, Lloyds bank plc v Rosset (1991), it was said that it was 'extremely doubtful' whether common intention could be found from anything less than a direct

 

contribution to the purchase price.

 

Stack v Dowden (2007)10 suggests that carrying out improvements adding significantly to the value

 

of the property should give rise to an interest in it, there is also a way to establish an interest by way

 

of proprietary estoppel, to claim an interest the claimant must show:

 

(a) the defendant promise the claimant and interest in the property;

(b) the claimant relied on that promise to his detriment;and

(c) it would be unconscionable to deny the claimant relief

 

Grant v Edwards 1986 concerned oral agreement and indirect financial contributions towards

 

purchase or improvement of a property.

 

In Grant v Edwards, a house was purchased for both claimant and defendant to living as if they

 

were married. Mrs Grant was actually married to someone else. The house was purchased in the

 

name of Edwards and his brother. Edwards told Grant that her name would not go on the title for

 

the time being because it could harm the matrimonial proceedings pending between Mrs Grant and

 

husband. In reality however, he had no intention of conveying any legal title to the plaintiff. The

 

Court of Appeal ruled that the claimant was entitled to a 50% in the proceedings of sale from the

 

property based on a common intention based upon a statement that Mrs Grant's name would

 

appear on the title deeds.

 

There are calls to reform the law in regards to cohabiting couples 'those in long-term relationships

 

who choose not to marry', there are also the same sex couples whose reason to cohabit is quite

 

simple, they are unable to enter in a legal marriage in the UK.

 

In Wilkinson v Kitzinger, 2 female British university professors, legally married in Canada, however

 

on their return their marriage was not recognised under British law. Under the subsequent *Civil

 

Partnership Act11, it was instead converted into a civil partnership. The couple sued to have their

 

marriage recognised in the UK, arguing that it was legal in the country in which they got married

 

and matched the requirements for recognition of an overseas marriage and thus should be treated

 

in the same way as one between opposite sex couples. They rejected the conversion of their

 

marriage into a civil partnership believing it to be both practically and symbolically a lesser

 

substitute.

 

The High Court announced his judgement on 31st of July 2006, it was held that the union would not

 

be even marriage status and would only be recognised in England and Wales as a civil partnership

 

Sir Mark Potter, president of the family division gave his reasoning that “abiding single sex

 

relationships are in no way inferior, nor does English law suggested that they are by according them

 

recognition under the name of civil partnership” and that marriage was an “age- old institution”

 

which he suggested, was by, “long-standing definition and acceptance” relationship between a man

 

and a woman. He agreed with the couple's claim that the were being discriminated against but

 

argued that this was justified on the grounds of protecting the traditional definition of marriage.

 

*The Civil Partnership Act 2004, was a bill introduced by the Labour government. The act grants

 

civil partnerships in the United Kingdom with rights and responsibilities identical to civil marriage.

 

Those in a Civil Partnership are entitled to the same property rights as married couples of the

 

opposite sex , the same Social Security and pension benefits, and also the ability to get parental

 

responsibility for a partners children, as well as responsibility for reasonable maintenance of one's

 

partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals

 

and others. There is a formal process for dissolving partnerships akin to divorce.

 

 

As the law stands, couples who are unmarried have no right to ownership of each other's property

 

on relationship breakdown. If they separate, the courts have no power to override the legal

 

ownership of the property and divided as they may do on divorce. Courts can only make orders

 

based on a determination of shares which have been acquired in the property in circumstances

 

where the legal rules of trusts or proprietary estoppel apply.

 

The apparent intention of the parties may be relevant in deciding the proportion of the property

 

owned by each party. The length of time partners have cohabited is not necessarily relevant.

 

The law relating to cohabitants and property rights is widely seen to be uncertain. However, in its discussion paper, Sharing Homes, which was published in 2002, the Law commission concluded

 

that “it is not possible... To devise a statutory scheme for the ascertainment and quantification of

 

beneficial interest in the shared a home which can operate fairly and evenly across the diversity of

 

domestic circumstances which are now to be encountered”.12

 

In Hammond v Mitchell [1991], an excuse was made to avoid joint ownership, the only indication of

 

an express discussion between parties was; “ I'll have to put the house in my name because I have

 

tax problems due to the fact that my wife burned all my account books and my caravan was burnt

 

down with all records of my car sales in it “. He also stated “don't worry about the future because

 

when we are married it will be half yours anyway...”13

 

The case follows Grant v Edwards but unlike Eves v Eves and Grant v Edwards there appears to

 

be a genuine intention to share here, the half share being clearly stated in the representation.

 

In Drake v Whipp [1991], the plaintiff and defendant bought an old barn, intending to convert it into a

 

house for the joint occupation. The plaintiff paid 40% of the purchase price and the defendant paid

 

60%. The defendant subsequently spent a considerable amount on the cost of conversion before

 

the property was finally conveyed to him. When they separated the plaintiff claimed 40% of the sale

 

value on the basis of resulting trust, but the trial judge took into account the defendant's subsequent

 

contributions and awarded her only 19%.

 

Allowing the plaintiff's appeal in part, the Court of Appeal said she should have a one- third share.

 

Once a common intention to share the property had been established, the resulting trust was

 

displaced by a constructive trust, and the court could exercise its discretion in deciding what share

 

would be fair14

 

When a couple cohabit, complicated trusts law in relation to property has to be relied upon TOL A TA15.

 

Contribution to the relationship is not taken into account, what matters is the parties interests in the

 

property. The law assumes that it is held equally i.e. 50: 50, unless there is evidence of an agreement

 

either verbally or in writing that the shares are in some different proportion. Someone may claim share

 

in a property which is registered in the sole name of another partner if they can established a resulting

 

trust (when one party has made a direct financial contribution to the purchase of the property in the

 

other's name) or a constructive trust.

 

In in July 2007, the Law commission published, Report 307. The Law commission recommended the

 

introduction of the new statutory scheme of financial relief separation based on the contributions made

 

to by the relationship by the parties. The scheme would be available to eligible cohabiting couples

 

. Couples who have had a child together over whether lived together for a minimum period would be eligible. Couples will be able to 'opt out' of the scheme by written agreement to that effect.

 

The key features of the scheme were summarised in the Executive Summary:

 

1. 1. we do not think or cohabitants should be able to obtain financial relief in the event of separation. We recommend that a remedy should only be available wherever:

• • The couple satisfied certain eligibility requirements;

  • the couple had not agreed to do supply the scheme; and

  • The applicant had made the qualifying contributions to the relationship giving rise to certain in during consequences at the point of separation16.

 

 

On Tuesday, 17th of November 2009, The Baroness Deech of Cumnor, in her lecture cohabitation and

 

the law stated;

 

“It is better not to have legal interference in cohabitation and leave it to be dealt with by the ordinary law

 

of the land, of agreements, Wills property and so on.” She also argued that “ cohabitation law retards

 

the emancipation of women, degrades the relationship, takes away choice, is too expensive and

 

would extend an already unsatisfactory maintenance law for married couples to another large

 

category.”17

 

Should cohabitation be a matter for government legislation.? Is it another manifestation of the Nanny

 

State? ,or, is it too Orwellian?. Would the public approve of a contractual cohabitation contract where

 

couples could 'opt in' or 'opt out'?. Only time will tell, but, there are certain to be many debates, for and

 

against, in the future.

​

​

1 The Law Commission. Consultation paper no 179. “COHABITATION: THE FINANCIAL CONSEQUENCES. OF RELATIONSHIP BREAKDOWN” http://lawcommission.justice.gov.uk/docs/lc307_Cohabitation.pdf

2 http://www.guardian.co.uk/news/datablog/2010/feb/11/marriage-rates-uk-data

3 Office of National Statistics, www.ons.gov.uk/...2010/families-and-households-in-the-uk--2001-t...File Format:PDF/Adobe Acrobat

4 Fitzpatrick v. Sterling Housing Association Ltd [2001] 1 FCR 21

5 Dyson Holdings vFox [1975] 2 All ER 1030, 1035-6

6 Family law Act 1996 S 62 (3)

7 Law Commission N0 97, para. 2.32

8 Watson v Lucas [1980] 1 WLR 1493.

9 Eves v Eves [1975] 1 WLR 1338

10 Stack v Dowden [2007] UKHL 17

11 Civil Partnership Act 2004

12 Law Commission Report, No 278, November 2002

13 Hammond v Mitchell [1991] 2 ALL ER 109 FCR 938, noted [1992] Conv 218

14 Drake v Whipp [1996] 1 FLR 826

15 Trusts of Land and Appointment of Trustees Act 1996

16 Cohabitation: The Financial Consequences of Relationship Breakdown. Law Com No 307 (Summary) 31 July 2007

17 Ruth Deech, The Baroness Deech of Cumnor DBE
Gresham Professor of Law , Cohabitaton and the Law, Tuesday, 17 November 2009. Museum of London

http://www.gresham.ac.uk/lectures-and-events/cohabitation-and-the-law