The Law Commission

PART V

A RELATIONSHIP APPROACH

5.1      The Law Commission conducted an analysis of a property-based model which, it was hoped, might provide a workable alternative to the current law governing the ascertainment and quantification of property interests in the shared home where no express provision had been made by the parties themselves. We have concluded that we are unable to recommend the adoption of the property-based model, principally because we do not believe that such a scheme can be sufficiently flexible and sophisticated to deal with the diversity of the relationships between persons who may be sharing homes.
5.2      In Part IV, we made some suggestions for the future judicial development of the principles of implied trusts and proprietary estoppel. We do not consider, however, that judicial action can be expected to solve all the problems which exist. It cannot be expected, in particular, to deal with the broader financial consequences of the breakdown of the relationship between those who have been living together in a shared home.
5.3      In this Part, we outline the extent to which the legal nature of the relationship between those who are living together in a shared home affects their mutual rights and obligations. This is not intended to be a comprehensive survey of the existing law, and we shall give particular emphasis to the areas of the law which have been most closely related to the current project.
5.4      To focus on the nature of the parties' relationship, and to consider whether rights and obligations should be vested in the parties by virtue of that relationship, is to adopt an approach which is broadly based on "status". One status- that of marriage- is very clearly recognised, and given pre-eminence, in current law. The question whether other relationships, outside marriage, should carry rights and obligations has been recently stimulated by the introduction in Parliament of two private member's Bills on partnership registration. In this Part we intend to provide a brief outline of the extent to which relationships are currently regulated, with reference to developments in other jurisdictions and proposals for reform.
5.5      We should emphasise that we are not making any proposals ourselves in this Discussion Paper. We are drawing a line under the project as it has been conducted. But we are keen to contribute as far as we are able to the debate concerning the future legal regulation of personal relationships.

Married couples

5.6      Marriage is a status, in that parties to a marriage belong to a class "to which the law ascribes peculiar rights and duties, capacities and incapacities."^[1] English law does not impose a regime of statutory co-ownership on husband and wife. Indeed, marriage has very little effect on the property rights of a couple, at least while the marriage continues to subsist. In determining, for instance, whether a person has a beneficial interest in property the title to which is vested in the person with whom they are living, the legal principles to be applied are the same whether the couple is married or not.^[2]
5.7      The following provisions should however be noted:

(1) There is a summary procedure by which a spouse may apply to the court to determine the title to or right to possession of any property, whether real or personal.^[3] But it does not bring about any substantive change in the law of property as it applies to a husband and wife: its function is limited and its effect is purely procedural.^[4]

(2) Money derived from an allowance made by the husband for the expenses of the matrimonial home is treated as the property of a husband and wife as tenants in common in equal shares in the absence of any agreement to the contrary.^[5]

(3) Where one spouse contributes to the improvement of real or personal property in which either or both of them has or have a beneficial interest, that spouse thereby acquires a share (or an enlarged share) in the property where that contribution is of a substantial nature.^[6]

(4) Where property is transferred from a husband to his wife, the presumption of advancement may apply such that the transfer is intended to be a gift.^[7]

(5) When a spouse dies, the widow or widower has preferential treatment in the event of intestacy, being entitled to appropriate the deceased's interest in the dwelling-house in which the surviving spouse was resident at the date of death.^[8]

Financial provision and property adjustment on divorce

5.8      The one situation in which marriage does profoundly affect the property rights of the spouses is where it is brought to an end by a decree of divorce, nullity or judicial separation. The Matrimonial Causes Act 1973 (as amended) confers wide powers on the court to make orders both for financial provision^[9] and property adjustment.^[10] The court also has the power to order a sale of any specified property, but only where it has made a secured periodical payments order, a lump sum order^[11] or a property adjustment order.^[12] Financial provision or property adjustment orders ("ancillary relief") can only be made after a decree nisi has been obtained in the divorce proceedings.^[13] The order takes effect once the decree nisi has been made absolute.
5.9      The essential characteristic of the divorce jurisdiction is that it requires the court to take into account all the relevant circumstances in each case (first consideration being given to the welfare while a minor of any child of the family),^[14] but does not provide any guiding thread of principle as to how the discretion should be exercised.^[15] Section 25 of the Matrimonial Causes Act 1973^[16] merely provides a "check-list" of matters to which the court should in particular have regard.
5.10      In White v White^[17] the House of Lords urged the courts hearing ancillary relief applications to avoid discrimination between husband and wife and their respective roles. In attempting to achieve this objective, it was important to take full account of two factors:

(1) Full weight must be given to the contributions which each party has made to the welfare of the family, including any contribution by looking after the home and caring for the family. This principle, although contained in the statutory list of considerations,^[18] was in the view of the House of Lords not always fully applied. It was essential that "[t]here should be no bias in favour of the money-earner and against the home-maker and the child-carer."^[19]

(2) The judge should look at all the circumstances but then check his tentative views against "the yardstick of equality of division".^[20] In general equality should only be departed from if and to the extent that there is good reason for doing so, and the court should be encouraged to articulate reasons for departing from it where it does so.

5.11      The ancillary relief jurisdiction enables the court to dispense effective and expeditious justice in the circumstances of each individual case. The court is rarely concerned, when exercising its statutory jurisdiction, with the parties' respective proprietary rights. Once it is satisfied that property is owned by one or other (or both) spouses, it has a broad discretion to adjust whatever individual rights each party might have. This does of course have considerable advantages in terms of saving both court time and legal costs.

Statutory co-ownership

5.12      The Law Commission proposed, in 1978, that statute should provide that the matrimonial home be jointly owned by the husband and wife (as beneficial joint tenants) save where the spouses had made express provision for their respective beneficial entitlements.^[21] This proposal was rejected by government. The Scottish Law Commission subsequently considered but rejected the imposition of statutory co-ownership of the matrimonial home in Scotland.^[22] However, the Law Reform Advisory Committee for Northern Ireland has recently revisited the issue and recommended reform along the lines of the Law Commission proposals in Northern Ireland.^[23]

Unmarried couples

5.13      There is no such thing as "common law marriage" in English law.^[24] It would also be inaccurate to refer to a recognised status of cohabitation. However, it is possible to identify certain statutory rights and obligations which may ensue from the fact of two persons living together. For the most part, these are conferred on those who live together "as husband and wife" which has been judicially interpreted as referring to the fact that one of the couple is a man and one a woman.^[25] Authority as to its further meaning is surprisingly scant. One possible reason for this, of course, is that the meaning of the expression is quite obvious, so that precise definition has not proved necessary.^[26] However, in one recent case,^[27] Neuberger J made the point that two people do not live together as man and wife simply because their relationship is one which a husband and wife could have. He said:

It seems to me that ... the court should ask itself whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but, when considering that question, one should not ignore the multifarious nature of marital relationships.^[28]

5.14      Some of the most important rights and obligations conferred on persons living together as husband and wife are as follows:

(1) Applications may be made for occupation orders, for non-molestation orders and for orders for the transfer of certain tenancies under Part IV of the Family Law Act 1996.^[29] Such applications may be made by spouses and former spouses, but they may also be made by "cohabitants",^[30] defined as "a man and a woman who, although not married to each other, are living together as husband and wife".^[31]

(2) A person who has been living with a protected or statutory tenant as his or her husband or wife may claim to succeed to a statutory tenancy of the dwelling-house on their death.^[32] Similarly, a person who has been living with an assured periodic tenant may claim to succeed as an assured tenant by succession.^[33]

In neither of the above cases does the claimant have to prove that the parties have been living together for a particular length of time.

(3) A person is entitled to claim damages for wrongful death under the Fatal Accidents Act 1976 if, inter alia, he or she was living with the deceased in the same household, and as her or his husband or wife, for a period of at least two years immediately before the date of the death.^[34]

(4) Such persons may also apply for financial provision out of the estate of the deceased pursuant to the Inheritance (Provision for Family and Dependents) Act 1975.^[35]

(5) A person who has been living with a secure periodic tenant as his or her husband or wife may claim to succeed to the secure tenancy on their death. However, such a claimant is not treated in an identical fashion to that of a surviving spouse, and they must show that they resided with the deceased for a period of twelve months.^[36]

(6) For the purposes of the Mental Health Act 1983, the definition of "relative" includes a person who has been living with the patient as his or her husband or wife for at least six months.^[37]

(7) Various provisions of social security legislation refer to persons who are an "unmarried couple", defined by reference to living together as husband and wife.^[38]

5.15      There are relatively few cases in current English law where rights and obligations are conferred on a same sex couple. An application for a non-molestation order may be made by a person who lives or has lived in the same household as the respondent, "otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder."^[39] This provision appears to permit lesbian and gay partners, as well as many living in non-familial relationships, to apply for protection from domestic violence under the 1996 Act.

No adjustive discretion

5.16      It should be noted that the court has no discretionary jurisdiction to order financial relief on the breakdown of a relationship outside marriage. This position is mitigated to some extent where the parties have children, as the parent with care will be able to claim child support from the absent parent irrespective of whether they were married. Moreover, application can be made for capital provision under Schedule 1 to the Children Act 1989. But such provision must be "for the benefit of" the child, thereby limiting the extent to which the economic disadvantage which the parent may have suffered can be compensated.^[40]
5.17      We referred in Part II to Burns v Burns.^[41] This decision highlighted the difficulties faced by a woman who has care of the children of the relationship following its breakdown. She could not establish a beneficial interest in the shared home as she could not prove that there had been a common intention that she should have such an interest nor that she had made a direct financial contribution to its acquisition. In truth, her grievance was more broadly based: she had no financial remedy for the loss she sustained as a result of the time and efforts she had devoted to the family.
5.18      In Part IV we explained how certain jurisdictions have attempted to develop a flexible approach to the ascertainment and quantification of beneficial entitlement to the shared home. In both Australia and New Zealand, the deficiencies of the trust law approach on the breakdown of relationships outside marriage have been ultimately addressed by legislative reform.

Australia

5.19      Most Australian states have introduced legislation regulating the rights and obligations of those who are in so-called "de facto" relationships.^[42] Such legislation typically confers a wide discretion on the court to make orders adjusting property rights in accordance with what is "just and equitable" having regard to the contributions (both financial and non-financial) made by the parties to the acquisition, conservation or improvement of the property, the inancial resources and the contributions to the welfare of the other party or of the family.^[43]
5.20      A distinction is drawn between married and unmarried couples. The powers applicable on the breakdown of de facto relationships are less wide-ranging than those operative on divorce, as the court does not take account of the parties' future needs. It is essentially involved in a retrospective evaluation of the parties' past contributions. Consistently with this policy, orders for future maintenance are tightly controlled and can only be made in limited circumstances.
5.21      The Australian relationships law is still developing. In 1999, New South Wales widened the scope of its de facto legislation so that it also applies to regulate "domestic relationships" between two unmarried adults where one or both provide domestic support and personal care for the other, but where there is no sexual intimacy. The New South Wales Law Reform Commission is currently conducting a review of the Property (Relationships) Act to determine whether it is necessary to respond further to changes in the social, legal and economic landscapes.^[44]

•    New Zealand

5.22      With effect from 1 February 2002, de facto relationships are treated on the same basis as married couples for the purposes of property division on separation or death.^[45] In most cases, the relationship must have lasted for at least three years. While there is provision for parties to a de facto relationship to contract out of the statutory regime, where they do not, the legislation equates the rights and obligations of unmarried couples (both opposite sex and same sex) to those of married couples. The court may therefore make orders adjusting the property rights of the parties at its discretion whether or not the couple is married.

Proposals for reform

The Law Society

5.23      The Law Society of England and Wales has made detailed proposals for the conferment of rights and obligations on certain cohabitants where they have been living together as a couple for three years or have had a child by birth or have adopted.^[46] In particular, it has recommended that there should be a right for cohabitants to apply to the court for capital provision, and in restricted circumstances, for maintenance within three years of separation.
5.24      The level of capital provision would be assessed by reference to the overall economic detriment suffered by the applicant on separation. However, there would be no general right to apply for maintenance. The distinction between capital and income provision is justified by reference to the different levels of commitment which can be implied by marriage and cohabitation as well as the reduced emphasis on maintenance between former spouses and the current focus on the clean break in the law of family property. Maintenance would therefore only be available for limited periods in order to provide resources for re-training or to reflect capital payments which cannot be paid by way of lump sum.

Scotland

5.25      In its 1992 Report on Family Law,^[47] the Scottish Law Commission considered whether a system of financial provision operative on the breakdown of a relationship of cohabitation^[48] should be introduced. While it rejected the introduction of a system analogous to financial provision on divorce, the Commission considered that it was nevertheless often unfair to allow economic gains and losses arising out of contributions or sacrifices made in the course of a relationship of cohabitation to lie where they fall.
5.26      Accordingly, it recommended^[49] that, where cohabitation terminates (otherwise than by death), a former cohabitant should be able to apply to court for financial provision on the basis of the principle in section 9(1)(b) of the Family Law (Scotland) Act 1985 — namely, that fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of any child of the family.^[50]
5.27      The Commission argued that the proposed solution^[51] would give cohabitants the benefit of a principle designed to correct imbalances arising out of the circumstances of a non-commercial relationship where the parties are quite likely to have made contributions and sacrifices without counting the cost or bargaining for a return.

Northern Ireland

5.28      The Law Reform Advisory Committee for Northern Ireland has recommended that in the absence of express written agreement to the contrary, the joint residence of "qualifying cohabitants",^[52] acquired after the parties become "qualifying cohabitants", should be held jointly (as joint tenants in equity).^[53] In this respect the Committee seeks to give such cohabitants the same rights as married couples.

The policy questions

5.29      The broad questions of policy which require to be addressed are as follows:

(1) Whether rights and obligations (in addition to those currently enjoyed or imposed) should be vested in persons who are or have been involved in a relationship although they have not married each other (or registered a "civil partnership"^[54]).

(2) If so, how such relationships should be defined, with particular focus on the possibility of formulating a single comprehensive definition.

(3) What rights and obligations should vest in such individuals as a result of their relationship.

(4) The extent to which those rights and obligations should be equated to, or be distinct from, the rights and obligations imposed on married couples.

(5) Whether parties should be free to contract out of any provision of this nature, and if so what should be done to ensure that such contracting out is clear, fair and effective.

Registered partnerships

5.30      Some jurisdictions have permitted unmarried couples^[55] to register their relationships as a form of "partnership", thereby obtaining rights and incurring obligations similar to, although not usually identical with, those who are married. This concept of "registered partnership" was developed in Scandinavia in the late 1980s and has since been adopted by a number of other Western European countries.^[56] We shall consider the Danish and French regimes, which represent two different approaches, prior to examining the recent proposals for legislation providing for the registration of civil partnerships in England and Wales.

Denmark

5.31      Denmark was the first country in the world to enact a Registered Partnership Act, in 1989. This legislation permits same-sex partners to register their relationship,^[57] upon which the Danish matrimonial property regime will apply^[58] as if the partners were married.^[59] Each partner may dispose of, or otherwise deal with, any property that they bring into the relationship. However, both parties' consent is required in relation to any dealing with the shared home. On the breakdown of the relationship any property which the couple have acquired subsequent to registration is deemed to be owned equally.^[60] Nevertheless, the partners are not treated as a married couple for all purposes.^[61] The Danish legislation has provided an important precedent for other countries.^[62]

France

5.32      The Danish model may be contrasted with the French regime known as the Pacte civil de solidarite (PaCS).^[63] Although the PaCS system involves registration of unmarried relationships, it is applicable to both same-sex and opposite-sex couples.^[64] The scheme is complex, with some benefits only accruing after a qualifying period,^[65] and others being available only to opposite-sex partners.^[66]
5.33      A PaCS is a 'contract concluded between two adult individuals...to organise their life in common (vie commune).' Once the PaCS is registered,^[67] the parties have more extensive rights and obligations than unregistered cohabitants, but fewer than married couples. Subject to any alternative arrangements made by the parties, all property acquired after the registration of their PaCS is presumed to be jointly owned in equal shares,^[68] but unlike married couples, the parties to a PaCS enjoy no right of survivorship.^[69] Like married couples, partners joined by a PaCS have mutual support obligations, are liable to third parties for each other's debts,^[70] and are entitled to the transfer of the lease of their common residence if the official tenant leaves or dies.^[71] However, like unregistered cohabitants, parties to a PaCS have no automatic inheritance rights, no survivor's pension and there is no provision for the joint adoption of an unrelated child^[72] or the second-parent adoption of the partner's child.^[73]
5.34      A PaCS will dissolve with immediate effect on the death of one of the parties, if one partner marries, or when a mutual declaration to that effect is registered at the county court.^[74] A PaCS may also be brought to an end unilaterally by giving notice to the other party and to the registrar of the court. In the latter case the termination will take effect after three months. If the PaCS is silent as to property rights and financial support, and the parties are unable to agree on these matters, a court may determine the proprietary and financial consequences of their PaCS.^[75]

Proposals for reform

5.35      The introduction of any system of registered partnerships in this country would clearly represent a radical departure from the principles which have traditionally governed family law. However, it is a subject that has received a large degree of attention in recent months.

Bills before Parliament

5.36      Two Bills proposing registered partnerships legislation have been recently debated in Parliament. The Relationships (Civil Registration) Bill was introduced into the House of Commons on 24 October 2001 by Jane Griffiths MP under the Ten Minute Rule. The Bill proposed the creation of a Civil Partnership Register which, upon entry, would extend to registered partners rights and obligations relating to tax, pensions, social security, housing succession and property.^[76]
5.37      Lord Lester of Herne Hill introduced the Civil Partnerships Bill into the House of Lords on 9 January 2002. This Bill, very similar in purpose to the Relationships (Civil Registration) Bill, was more detailed, and was the subject of extensive debate at Second Reading on 25 January. However, Lord Lester withdrew his Bill on Wednesday 6 February, following further assurances that the Government was conducting a cross-departmental review of civil partnerships.^[77] This review has been co-ordinated by the Civil Partnerships and Sexual Orientation Team at the Women and Equality Unit of the Cabinet Office.
5.38      Lord Lester's Bill proposed to permit unrelated couples of the same or opposite sex who had been living together in the same household for a minimum period of six months to register their partnership with the Registrar-General of Births, Deaths and Marriages. On registration, the civil partners would enjoy many, although not all, of the rights and obligations of a married couple. Included in the Bill were provisions concerning taxation, provision of health and welfare where one partner was no longer capable to act, mental health, certain social benefits, domestic violence, life assurance, death registration, succession to residential tenancies, intestacy, family provision, pension schemes and rights of action in respect of fatal accidents.
5.39      Save where the partners had made an express "property agreement" which was noted in the register, the Bill sought to impose a form of statutory co-ownership on the registered partners' "communal property", essentially comprising the shared home^[78] and its major contents. Such property was to be treated for all purposes as held jointly by the parties in equal shares. In the event of relationship breakdown, either party could apply to the court for a "cessation order" (the equivalent of divorce) and for a form of ancillary relief, an "intervention order". The court would have been able to make orders for the transfer of property from one partner to another, orders for financial provision by way of periodical payments,^[79] and orders requiring the sharing of pension rights.
5.40      The proposals for registration of civil partnerships do not involve the imposition of status on certain relationships against the parties' wishes. On the contrary, the provisions of the Bill would have no effect unless and until the parties registered their civil partnership.

The policy questions

5.41      The broad questions of policy which require to be addressed appear to us to be as follows:

(1) Should it be possible for persons to register their relationships as "civil partnerships"?

(2) If so, should registration be limited to couples of the same sex (who by definition cannot marry each other) or should it also be open to couples of the opposite sex?

(3) If so, should registration be limited to couples at all- or should other personal relationships be capable of registration?^[80]

(4) What should the legal consequences of registration be?

(5) Should such consequences be identical to those which flow from marriage- or should they differ, and if so, in what respects?

(6) Should parties to a civil partnership be able to contract out of the rights and obligations conferred on them by statute- and if so, to what extent?

Summary

A tiered approach to rights and obligations

5.42      We accept that there is a very strong case for singling marriage out as a status deserving of special treatment. Not only does government consider that marriage provides the surest foundation for the raising of children,^[81] Parliament has itself recognised that the institution of marriage is deserving of protection and respect by the courts.^[82] The European Convention on Human Rights also accords to marriage special privileges.
5.43      In all cases- married couples, registered partners, unmarried couples and so forth, any imposition of legal consequences requires justification and rationalisation, and the extent to which the parties can come to their own arrangements must also be clarified. It is obvious that the invocation of status as the basis of any future exercise in law reform requires the utmost care and consideration and that a full assessment of the impact of any such legislation would in every case be necessary. There are two central problems which we have identified:

(1) The definition of any status must be clear and effective such that those who qualify are aware that they do, and so that interested third parties are able readily to ascertain whether any such status has been acquired. Marriage is clearly and readily identifiable. Any new status which may be created must satisfy similar criteria and must not discriminate against individuals or groups.

(2) The consequences of any status must be prescribed so that those who qualify, or who are considering the acquisition of the status, are fully aware of the legal implications of their actions. In particular, it will be necessary to decide whether the status confers any form of statutory co-ownership and/or gives the parties the right to claim capital provision or maintenance in the event of breakdown of the relationship.

5.44      If Parliament were to decide upon the introduction of a system of "registered partnerships" for those couples who were unable (or unwilling) to marry, it would be necessary to determine whether the rights and obligations conferred on such a partnership should be equated to those conferred on married couples.
5.45      Registered partnerships would not solve the problem of those who fail to make any formal provision concerning their relationship. It must be realised, therefore, that the legal recognition of registered partnerships would have a relatively limited impact. There remains a strong case for consideration of further reform beyond the introduction of a system of registered partnerships, in particular the adoption of new legal approaches to personal relationships outside marriage following the lead given by other jurisdictions (such as Australia and New Zealand).

Note 1    The Ampthill Peerage [1977] AC 547, 577, per Lord Simon of Glaisdale.    [Back]

Note 2    Bernard v Josephs [1982] Ch 391, 402, per Griffiths LJ.    [Back]

Note 3    Married Women’s Property Act 1882, s 17.    [Back]

Note 4    See Pettitt v Pettitt [1970] AC 777. It also applies to engaged couples: Law Reform (Miscellaneous Provisions) Act 1970, s 2(2).    [Back]

Note 5    Married Women’s Property Act 1964, s 1. In its Report, Family Law: Matrimonial Property (1988) Law Com No 175, the Law Commission both criticised and recommended the repeal of the 1964 Act. It is now recognised that in restricting its application to allowances made by the husband, it contravenes Art 5 of the Seventh Protocol of the European Convention on Human Rights and is required to be repealed in order to enable the UK to ratify the Seventh Protocol: Written Answer, Hansard (HL) 21 April 1998, vol 588, col 197 (Lord Williams of Mostyn). In Scotland, housekeeping allowances are treated as belonging to the spouses in equal shares irrespective of which spouse was responsible for the allowance: Family Law (Scotland) Act 1985, s 26. There is also a statutory presumption that household goods should be owned in equal shares:ibid, s 25.    [Back]

Note 6    Matrimonial Proceedings and Property Act 1970, s 37. This provision also applies to engaged couples: Law Reform (Miscellaneous Provisions) Act 1970, s 2(1).    [Back]

Note 7    See paras 2.59 - 2.60 above.    [Back]

Note 8    Intestates’ Estates Act 1952; see D H Parry & J B Clark, The Law of Succession (10th ed 1995) pp 33et seq. A spouse who claims family provision under the Inheritance (Provision for Family and Dependents) Act 1975 has a more generous standard applied to his or her claim: see Parry & Clark, p 126.     [Back]

Note 9    Such as an order for one spouse to make periodical or lump sum payments to the other: see Matrimonial Causes Act 1973, s 23. See tooibid, s 21(1).     [Back]

Note 10    Such as an order that one party to the marriage transfers to the other property specified in the order: seeibid, ss 21(2), 24.     [Back]

Note 11    For these, seeibid, s 23(1)(b), (c).    [Back]

Note 12    Ibid, s 24A.    [Back]

Note 13    Ibid, ss 23(1), 24(1).     [Back]

Note 14    Ibid, s 25(1). The words “first consideration” do not mean “paramount consideration”. Instead, “this consideration is to be regarded as of first importance, to be borne in mind throughout consideration of all the circumstances including the particular circumstances specified in section 25(2)”: Suter v Suter [1987] Fam 111, 123, per Sir Roualeyn Cumming-Bruce.     [Back]

Note 15    “[S]ince 1984 the judicial task has lacked a primary objective”: Report to the Lord Chancellor by the Ancillary Relief Advisory Group (July 1998), para 4.4.    [Back]

Note 16    As substituted by the Matrimonial and Family Proceedings Act 1984, s 3.    [Back]

Note 17    [2001] 1 AC 596.    [Back]

Note 18    Matrimonial Causes Act 1973, s 25(2)(f).    [Back]

Note 19    White v White [2001] 1 AC 596, 605, per Lord Nicholls of Birkenhead.    [Back]

Note 20    Ibid, 605, per Lord Nicholls of Birkenhead.    [Back]

Note 21    Third Report on Family Property: The Matrimonial Home (Co-ownership and Occupation Rights) and Household Goods (1978) Law Com No 86.    [Back]

Note 22    Family Law: Report on Matrimonial Property (1984) Scot Law Com No 86.    [Back]

Note 23    Matrimonial Property (2000) LRAC No 8. See further para 5.28 below.    [Back]

Note 24    There is no such thing as “common law marriage”, whereby unmarried persons who live together and behave as if they were married are treated as man and wife. It has not been possible to enter into an informal marriage in this country since the passage of Lord Hardwicke’s Act in 1753. See J C Hall, “Common Law Marriage” [1987] CLJ 106.    [Back]

Note 25    Harrogate Borough Council v Simpson (1984) 17 HLR 205; Fitzpatrick v Sterling Housing Association [2001] 1 AC 27. See also the comments of Lord Mackay of Clashfern LC, responding to a query raised by Lord Meston on Second Reading of the Bill which became the Law Reform (Succession) Act 1995: “‘living as husband and wife’ appears to us, as the law stands, to apply to partners of opposite sexes and not to partners of the same sex.” Hansard (HL) 13 February 1995, vol 561, col 511.    [Back]

Note 26    See, eg, R v South West London Appeal Tribunal, ex parte Barnett (unreported), per Lord Widgery, cited by Woolf J in Crake v Supplementary Benefits Commission [1982] 1 All ER 498, 502: We have been invited to give some guidance on the phrase ‘cohabiting as man and wife’ but for my part it is so well known that nothing I could say about it could possibly assist its interpretation hereafter.    [Back]

Note 27    Re Watson [1999] 1 FLR 878.    [Back]

Note 28    Ibid, at p 883.    [Back]

Note 29    Part IV and Sched 7.    [Back]

Note 30    Or former cohabitants.    [Back]

Note 31    Family Law Act 1996, s 62(1).    [Back]

Note 32    Rent Act 1977, Sched 1, para 2, as amended by Housing Act 1988, Sched 4, para 2, applying to deaths on or after 15 January 1989.    [Back]

Note 33    Housing Act 1988, s 17(1), (4).    [Back]

Note 34    Fatal Accidents Act 1976, s 1(3) (as amended by the Administration of Justice Act 1982).    [Back]

Note 35    Section 1(1)(ba) (inserted by the Law Reform (Succession) Act 1995, s 2). The new provision, which was enacted following a recommendation by the Law Commission in Family Law: Distribution on Intestacy (1989) Law Com No 187, applies in cases where the deceased died on or after 1 January 1996.     [Back]

Note 36    Housing Act 1985, ss 87, 113. The claimant must have been occupying the dwelling-house as his only or principal home at the time of the tenant’s death, but it is not necessary that the same house was shared by tenant and successor for the twelve-month period: see Waltham Forest LBC v Thomas [1992] 2 AC 198.    [Back]

Note 37    Mental Health Act 1983, s 26. See also Administration of Justice Act 1982, s 13.    [Back]

Note 38    See, eg, Social Security and Contributions Act 1992, s 137(1).    [Back]

Note 39    Family Law Act 1996, s 62(3).    [Back]

Note 40    See, eg, A v A [1994] 1 FLR 657, T v S [1994] 2 FLR 883.    [Back]

Note 41    [1984] Ch 317. See paras 2.75 - 2.77 above.    [Back]

Note 42    New South Wales: Property (Relationships) Act 1984 (formerly De Facto Relationships Act 1984); Northern Territory: De Facto Relationships Act 1991; Australian Capital Territory: Domestic Relationships Act 1994; South Australia: De Facto Relationships Act 1994. Some of this legislation applies to a wider range of relationships than that of the unmarried couple of the opposite sex.     [Back]

Note 43    Property (Relationships) Act 1984, s 20.    [Back]

Note 44    Review of the Property (Relationships) Act 1984 (NSW) (2001) NSW Law Reform Commission Discussion Paper 44.    [Back]

Note 45    Property (Relationships) Act 1976.    [Back]

Note 46    Cohabitation: Proposals for Reform, Law Society’s Family Law Committee.    [Back]

Note 47    (1992) Scot Law Com 135.    [Back]

Note 48    By “cohabitation” in this context the Scottish Law Commission meant the relationship of a man and a woman who are not legally married to each other but who are living together as husband and wife, whether or not they pretend to others that they are married to each other.    [Back]

Note 49    Ibid, para 16.23.    [Back]

Note 50    As we noted in paras 5.23 - 5.24 above, this principle also underlies recommendations for reform of the law in England and Wales made by the Law Society.     [Back]

Note 51    Which had been endorsed by a majority of those who commented on the question in response to the Scottish Law Commission’s earlier discussion paper and public opinion survey: The Effects of Cohabitation in Private Law (1990) Scot Law Com No 86.    [Back]

Note 52    “Qualifying cohabitants” must have been living together in the same household for at least a total of two years within the period of three years preceding the acquisition of the property or have been living together in the same household and have had a child by the relationship. In either case, they must have been living together “effectively as husband and wife though not being married”.     [Back]

Note 53    Matrimonial Property (2000) LRAC No 8.    [Back]

Note 54    See paras 5.30 et seq below.    [Back]

Note 55    In some jurisdictions, the relevant provisions are restricted in their application to same sex couples.    [Back]

Note 56    Including Belgium, France, Iceland, The Netherlands, Norway, Sweden and two of the autonomous regions of Spain (Catalonia and Aragon). See R Wintemute and M Andenaes (eds), Legal Recognition of Same-sex Partnerships (1st ed 2001) Appendix 1.    [Back]

Note 57    L Nielsen, “Family Rights and the Registered Partnership in Denmark” (1990) 4 IJLF 297, 299; D M Henson, “Analysis of same-sex partnership protections: recommendations for American reform” (1993) 7 IJLF 282, 285. With certain exceptions, all references in Danish law to “spouse” or “marriage” are now applied equally to those in registered partnerships as they are to married couples. The partnership can be brought to an end by de-registration.    [Back]

Note 58    Unless the parties contract out.    [Back]

Note 59    M D Dupuis, “The impact of culture, society and history on the legal process: an analysis of the legal status of same-sex relationships in the United States and Denmark” (1995) 9 IJLF 86, 104.    [Back]

Note 60    The court has a discretion to ignore the presumption of equality where the relationship has been registered for less than five years and the parties’ contributions to the financial side of their partnership were markedly unequal. See L Nielsen, above, at p 303.    [Back]

Note 61    For example, registered partners are not permitted to adopt together or have joint custody of a child. However, since 1 June 1999 a registered partner has been permitted to adopt the other partner’s child, unless the child is adopted from a foreign country: Law No 360 of 2 June 1999, s 2, amending Registered Partnership Act 1989, s 4(1).     [Back]

Note 62    D Bradley, Family Law and Political Culture: Scandinavian Laws in Comparative Perspective (1st ed 1996) pp 151 - 155.    [Back]

Note 63    Loi no 99-944 du 15 novembre 1999 relative au pacte civil de solidarité - roughly translated as “law relating to civil solidarity pacts”, inserting Art 515 into the French Civil Code. Couples have been able to register their partnerships since 17 November 1999. There are 2.5 million French couples cohabiting outside marriage, the highest rate in Europe outside the Nordic countries: see C Martin & I Théry, “The PaCS and marriage and cohabitation in France” (2001) International Journal of Law, Policy and the Family 135.     [Back]

Note 64    The French traditions of equality and universality of legal rules preclude special legislation applying only to minority groups: see D Borrillo, “The ‘Pacte Civil de Solidarité’ in France” in Legal Recognition of Same-Sex Partnerships: A study of National, European and International Laws (2001) 475, 476.     [Back]

Note 65    Loi no 99-944 du 15 novembre 1999, Arts 4 and 5 provide that joint income tax will apply to parties to a PaCS only after their relationship has been registered for three years, and joint taxation in relation to lifetime gifts and legacies after two years.    [Back]

Note 66    As is the case with unregistered cohabitants, only opposite-sex couples can apply for joint parental authority over a partner’s child (Code civil, Arts 371 - 387), or access to medically assisted procreation (Code de la sante publique, Art L152-2).    [Back]

Note 67    Registration takes place at the Tribunal d’instance (county court). Copies of the agreement entered into and certificates evidencing that the parties are not already married or party to a PaCS must be lodged: Code civil, Art 515-3.    [Back]

Note 68    Property owned by either party prior to registration will remain in the relevant party’s ownership.    [Back]

Note 69    Code civil, Art 515-5. See also A Barlow and R Probert, “Addressing the Legal Status of Cohabitation in Britain and Frances: Plus ça change...?” Web Journal of Current Legal Issues, 1999 http://webjcli.ncl.ac.uk/1999/issue3/barlow3.htm, p 6.    [Back]

Note 70    When incurred for the “necessities of their daily life and for expenses relating to their common residence”: Code civil, Art 515-4.    [Back]

Note 71    Art 14. They also enjoy the same rights to the public health and maternity insurance of the other (Code de la securite sociale, Art L 161-14), the right to joint job transfers if working in the civil service (Loi no 99-944 du 15 novembre 1999, Art 13), simultaneous vacations (if working in the same company), and bereavement leave (Art 8).    [Back]

Note 72    Code civil, Art 343.    [Back]

Note 73    Code civil, Arts 371 - 387.    [Back]

Note 74    Code civil, Art 515-7.    [Back]

Note 75    Code civil, Art 515-7.    [Back]

Note 76    The Second Reading of the Bill was adjourned on 23 November 2001.    [Back]

Note 77    The review was first announced in November 2001: seeWritten Answer, Hansard (HC) 28 November 2001, vol 375, col 903W (Written Answer No 19567);Written Answer, Hansard (HC) 30 January 2002, vol 378, col 2502 (Written Answer No 30814).    [Back]

Note 78    “Any dwelling-house which either or both of them are entitled to occupy by virtue of a beneficial estate or interest and which the partners occupy (or have at any time occupied) jointly as their principal or only home”: Civil Partnerships Bill, cl 9(1)(a).    [Back]

Note 79    Limited in duration to a period of two years from the date of the order:ibid, cl 38(2).    [Back]

Note 80    The Civil Partnerships Bill concentrated on those who are involved in a relationship which could be termed as “equivalent to marriage”, in that to outward appearances the couple are considered as if they were married. It did not, therefore, attempt to deal with the legal rights and obligations pertaining to those living together as siblings, members of a family, or as friends. This may be because it is not felt appropriate that such relationships should be dealt with by the imposition, voluntary or involuntary, of a legal status conferring, possibly, the power on the court to reallocate the parties’ property by the exercise of discretion- or it may be that it was thought that the definition of such a status would itself be too difficult.    [Back]

Note 81    Supporting Families: A Consultation Document (1998) Cm 3968, para 8 (Home Office).    [Back]

Note 82    Family Law Act 1996, s 1(a).    [Back]