The Law Commission

PART 9

ELIGIBILITY TO APPLY

INTRODUCTION

9.1      In Part 5, we discussed eligibility in broad terms, contrasting cohabitants with children and those without, in order seeking a basic justification for providing access to a scheme of financial relief on separation. In this Part, we consider in more detail how the eligibility tests for a new scheme on separation could be framed. Later Parts consider other issues broadly related to eligibility: the right of couples to opt out of the operation of any new scheme by agreement (Part 10), limitation periods, the retrospective operation of any new scheme, and the jurisdiction of the domestic courts (Part 11).
9.2      In Part 8, we explained how we envisaged that reform of the existing remedies under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act") could be effected were a new scheme of financial relief on separation introduced. We suggested as part of that provisional proposal that the basic definition of cohabitants eligible to apply under that Act should be the same as that under a new scheme on separation. We shall consider in this Part whether other aspects of eligibility to apply - such as the presence of children or satisfaction of a minimum duration requirement - ought to be the same for both remedies on separation under a new scheme and on death under a revised 1975 Act.
9.3      We have postponed detailed consideration of this important issue until this relatively late position in the paper because the question of eligibility to apply can only be settled on in the light of the nature of the relief granted under a new statutory scheme.
9.4      We have already suggested that there is a case for cohabitants with children to be included automatically in any new scheme on separation. We invited consultees' views on the question of cohabitants without children, but suggested that, if they were to be included, the imposition of a minimum duration requirement as a precondition for eligibility to apply might be appropriate. We need now to examine those options more closely, in light of the remedies that would be potentially available between parties to eligible relationships.
9.5      It is important to bear in mind that this project is concerned with a relatively narrow issue: the circumstances in which those who have been cohabiting should be entitled to make financial claims against their former partner on separation, or against their partner's estate on death. We are not involved in an attempt to define "cohabitation" for any wider legal purposes. In particular, we are not recommending the creation of a new, comprehensive legal status (like "spouse" or "civil partner") which would confer on those who qualify a range of rights and obligations in a variety of private and public law contexts.
9.6      One final point of introduction. It seems to us appropriate that eligibility should be regarded as a characteristic of relationships rather than of the individuals within them. There are some situations in which lack of eligibility might arise from a characteristic of just one party,^[1] and one could in theory devise a system whereby (depending on the nature of the concern arising from that characteristic) that party was not eligible to claim, or was immunised against claims brought by the other party, but that otherwise the scheme would operate between the parties. It seems to us more satisfactory that any individual "disabilities" of this sort, if they are to exclude the operation of the scheme at all, should do so entirely rather than partially.^[2] We therefore deal entirely in the following discussion with the eligibility of relationships.

Eligibility under opt-in and opt-out schemes compared

9.7      Although our clear preference for any reform is an opt-out scheme, it may nevertheless be helpful to examine the contrast, in terms of eligibility, between opt-in and opt-out schemes.
9.8      Defining and identifying eligibility under an opt-out (or "default") scheme raises issues very different from those pertinent to opt-in schemes. In the case of marriage and civil partnership, the existence and recognition of the relationship is conclusively established on production of a valid certificate.^[3] There is an expectation that spouses will live together, have sexual relations, raise children, and so on. But in fact none of these is required for a marriage to be recognised in law as such. The parties can conduct themselves however they wish; the marriage certificate is the passport to legal recognition and a formal process of dissolution marks its end. The parties' marital status, alone, is what makes the spouses eligible to apply for financial relief.
9.9      Like the legal consequences of marriage and civil partnership, the legal consequences of any new opt-in scheme (such as some other form of registered partnership) would attach only to those partners who had completed specified formal requirements, and by virtue of their having done so. Parties to opt-in relationships would be eligible to apply for remedies simply because they had explicitly chosen to opt in, and thereby to undertake any legal commitments and assume any legal responsibilities that opting in entailed.
9.10      This being the case, the definition of relationships eligible for registration in an opt-in scheme (like the eligibility requirements for marriage and civil partnership^[4]) would need only to identify the basic types of relationships to which the legislature wished to grant the right to opt in; for example, that the parties be of the opposite or the same sex, that they not be related within prohibited degrees, and so on. Once eligible parties had validly opted in, either party would be automatically eligible to apply for financial relief on the basis of their opt-in, without any inquiry into the nature of the parties' relationship being necessary.^[5]
9.11      By contrast, since an opt-out scheme would apply by default to those relationships falling within its scope (where the parties had not opted out by agreement), eligibility criteria would have a substantial role to play in identifying those relationships for which access to the scheme would be appropriate.^[6]
9.12      Cohabiting relationships are only recognised by law in so far as the parties in fact live their lives in the way that the statute in question regards as necessary for "cohabitation" for its particular purposes to exist. The very informality of these relationships means that there are cases where there might be argument about whether the parties satisfy the eligibility requirements, whatever they may be. In particular, attempts to measure the length of cohabiting relationships may sometimes be made difficult by the fact that the parties themselves may not be in agreement about when the relationship began or ended, which in turn implies that they may not agree on the characteristics of "cohabitation".^[7]
9.13      In view of our provisional preference for a default regime, the remainder of this Part will explore eligibility requirements appropriate to such a scheme.

Existing statutory recognition of cohabitants

9.14      The application of laws to cohabitants by default (rather following the parties opting in) is not new to English law. Since the early twentieth century,^[8] cohabiting relationships have been recognised by statute in various contexts. In many of those contexts, cohabitation is subject to default regimes which, unlike the scheme that we are provisionally proposing here, cannot be avoided by agreement. Several of them involve private law remedies dependent on the exercise of judicial discretion.^[9]
9.15      Until recently, statutes referring to cohabitants were understood to cover only opposite-sex couples. However, following Ghaidan v Godin-Mendoza,^[10] the Civil Partnership Act 2004 expressly amended statutes applying to cohabiting couples so that they now cover both opposite-sex cohabitants who have not married and same-sex cohabitants who have not registered a civil partnership.^[11] Opposite-sex and same-sex cohabitants should be equally eligible under any new scheme.^[12]
9.16      Despite this wide-ranging legal recognition of cohabitation, the law has not adopted a consistent definition of cohabitation for use in all contexts. Indeed, the word "cohabitation" itself is not always used, even where it seems clear that that is, broadly speaking, the sort of relationship contemplated by the provision in question.

ELIGIBILITY TO APPLY UNDER A NEW SCHEME: BASIC REQUIREMENTS

Basic description of the relationship

9.17      As the terms of reference make clear, this project is concerned only with what are commonly termed "couples",^[13] whose relationships will typically be characterised by (sexual) intimacy^[14] and exclusivity.^[15] We consider separately below the requirement of a shared household.
9.18      Existing legislation uses various terms to refer to cohabitants; the words "couple" and "cohabitant" appear only occasionally. The most common formula uses the "marriage analogy", while some more recent legislation has referred to "partners in an enduring family relationship". The question here is what terminology should be used in any new legislation creating a scheme for financial relief on separation and, in particular, whether the marriage analogy is desirable.

Marriage analogy^[16]

9.19      Several statutes define cohabitation by analogy with marriage or civil partnership. For example, section 1(3) of the Fatal Accidents Act 1976^[17] allows actions for compensation in respect of a wrongful death to be brought by, among others:

any person who—

(i) was living with the deceased in the same household immediately before the date of the death; and

(ii) had been living with the deceased in the same household for at least two years before that date; and

(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased.

9.20      Section 62(1) of the Family Law Act 1996 defines "cohabitants", for the purpose of eligibility to apply for occupation and non-molestation orders, as:^[18]

two persons who are neither married to each other nor civil partners of each other but who are living together as husband and wife or as if they were civil partners.

9.21      The marriage analogy formula is used in the recent Scottish legislation introducing financial relief for cohabitants.^[19]

Other formulae for describing couple relationships

9.22      More recent English legislation uses novel formulae, which are intended either to identify intimate relationships other than those between cohabitants, or to identify a larger category within which at least some cohabitants would fall. To our knowledge, they have yet to receive authoritative judicial interpretation.
9.23      For example, adoption legislation now permits adoption by "couples", defined to include:

two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.^[20]

9.24      The words used here are not themselves defined, though the Act excludes close blood and adoptive relations from their scope.^[21] It is clear that cohabiting couples are intended to fall within this definition, though the Act does not expressly require that the parties be living "together" or "in the same household", as other statutes do; that might be thought to be implicit in the concept of an enduring family relationship.^[22]
9.25      Section 62(3) of the Family Law Act 1996 includes a new category^[23] of "associated person" relationship, eligible to apply for occupation and non-molestation orders, involving those who "have or have had an intimate personal relationship with each other which is or was of significant duration". The legislation includes a separate category for cohabitants (defined above) to which more substantial remedies attach, so this new provision applies to relationships which are not co-residential. But it illustrates the variety of terminology currently used in legislation to refer to familial relationships.

Descriptions and definitions used in other jurisdictions

9.26      There are a variety of approaches amongst those jurisdictions that currently operate default schemes.^[24] However, they tend to share two basic features: (i) a general term and basic definition for the relationship; combined with (ii) a checklist of factors to aid the identification of such relationships. Some schemes adopt more rigid definitions and presumptions that the relevant relationship exists which arise once basic facts are proved. Schemes commonly require the relationship to have lasted a minimum duration (or to have produced a child) before the parties will be eligible to apply for financial remedies on separation and death.
9.27      The basic terminology varies:

(1) cohabitant (Scotland, Sweden);

(2) de facto partner (several Australian states, New Zealand);

(3) domestic partnership/relationship (some Australian states, American law reform proposals^[25]);

(4) putative spouse (South Australia);

(5) significant relationship (Tasmania).

9.28      The basic definitions of these concepts vary in their precise content. There are perhaps three basic ingredients, used either singly or in combination:

(1) the marriage/civil partnership analogy:

(a) "a man and a woman who are (or were) living together as if they were husband and wife" or "two persons of the same sex who are (or were) living together as civil partners";^[26] or

(b) two people who "have a marriage-like relationship";^[27]

(2) the language of "coupledom":

(a) two people who "live together as a couple";^[28] or

(b) two people who "have a relationship as a couple";^[29] and/or

(3) reference to living arrangements and/or a shared household:

(a) two people who "live together on a permanent basis as a couple and who have a joint household";^[30]

(b) "two persons … who for a significant period of time share a primary residence and a life together as a couple";^[31] or

(c) "the relationship between two people … living together as a couple on a genuine domestic basis".^[32]

Discussion

9.29      Whilst the marriage analogy may be convenient and would fit with much existing domestic legislation, is not without its problems.
9.30      Some couples object to the analogy because they have deliberately chosen not to marry, for social or ideological reasons (though not necessarily because they consciously reject the legal implications of marriage). Others object that likening cohabitants to married couples misses the point that cohabitants have not married each other. The expression has also become somewhat cumbersome now that the marriage analogy has to be accompanied by a civil partnership analogy for same-sex relationships. A uniform expression using the language of "couples" might be easier and more readily understood by lay people.
9.31      There is also evidence that legal tests using the marriage analogy may have contributed to the common law marriage myth.^[33] There have been calls recently for the expression "common law marriage" to be expunged from official forms, media and other sources.^[34] Although the law does not use that expression to refer to cohabitants, the other, rather confusing legal formula "not married to each other [but] … living together as husband and wife" does appear on court forms.^[35] Benefit application forms^[36] use a similar wording, though perhaps make matters slightly clearer by inserting "if": "living together as if husband and wife". By these means, the concept of common law marriage continues to seep into the public consciousness, contributing to the myth. One response to this problem, of course, is to educate the public more carefully about the significance of these expressions. Nevertheless, it may be desirable to adopt an alternative form of words, perhaps drawing on some of the examples from other jurisdictions and the more recent domestic legislation cited above.
9.32      We invite the views of consultees on whether any legislative definition of those eligible to apply as cohabitants for financial relief on separation should be expressed by analogy to marriage and civil partnership, or in other terms.

An express co-residence or joint household requirement

9.33      In some contexts, it is a statutory precondition of legal recognition that parties share a household.^[37] The concept of a "household" is well known to the law. A household is different from a house: a house may be shared, but the occupants might operate entirely separate households within it. What matters for these purposes is the degree of domestic interaction between the parties. A shared household necessarily involves sharing a physical home. However, the mere fact of that one partner is temporarily absent from that place or maintains a second home elsewhere will not of itself prevent that individual from being a member of the household, provided that he or she is otherwise sufficiently integrated into it.^[38]
9.34      Recent case law, in the context of fatal accidents claims, has endorsed the following set of propositions for establishing whether two people are living together in the same household as husband and wife:^[39]

(1) each case is fact sensitive: that is, dependent upon its peculiar facts;

(2) the relevant word in the statute which the court must consider is "household" and not "house";

(3) living together is the antithesis of living apart;

(4) parties will be in the same household if they are tied by their relationship; and

(5) the tie of that relationship may be manifest by various elements, not simply living under the same roof, but the public and private acknowledgement of their mutual society and the mutual protection and support which binds them together.

9.35      The concept of cohabitation necessarily involves some degree of co-residence and a joint household. A co-residence or joint household requirement is for the most part an easy test to apply, but there are more peripheral cases in relation to which the question "how much cohabitation is required?" has to be asked.^[40]
9.36      The issue can be illustrated by the case of Kotke v Saffarini.^[41] The Fatal Accidents Act 1976 expressly requires, in order for a survivor to be eligible to claim, that the couple lived together as husband and wife in the same household for two years preceding the death.^[42] In Kotke v Saffarini, two years prior to his death, the deceased had a house in Doncaster where he slept several nights of the week and kept the bulk of his clothes and belongings, leaving just a few clothes and essentials in his partner's home in Sheffield for when he visited, principally at weekends. He was spending increasing amounts of time in Sheffield and he and his partner had discussed buying a house together. But his position was complicated by the negative equity in his house, and it was convenient for him to go to work in London from Doncaster because of the better train connection; he also continued to use Doncaster as his address for official purposes. They shared shopping expenses when he was in Sheffield.
9.37      The judge concluded that at the point two years before the death, whatever their future intentions might have been, the couple's domestic lives were insufficiently integrated to constitute a joint household. This was an unfortunate conclusion for the claimant, who not long into the last two years had become pregnant, and before her partner's death had given birth to his child. A few months after the birth he had let the Doncaster house and finally moved to her Sheffield home. They were clearly sharing a household by the end, but because they had not done so for a full two years before the death, the claim could not go forward.^[43]
9.38      At the crucial two-year point, the couple in Kotke could perhaps be described as "living apart together".^[44] Such couples may have stable, long-term relationships, but continue to live apart, even after the birth of children. Such couples may be found to share "family life" for the purposes of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR").^[45] The assumption that a lack of shared household and co-residence automatically deprives a relationship of the mutuality necessary to warrant any legal protection might be too simplistic. Where there are children, the impact of the relationship on the primary carer's earning capacity may be very similar to that arising in cases of cohabitation.^[46]
9.39      However, while cases involving couples who "live apart together" may share some of the features of cases involving cohabitants, such couples may at least be assumed to have their own homes. To that extent, it may be easier to unravel their joint lives in the event of separation and death, and the lack of shared household probably reduces the risk of financial interdependence which generates the difficulties that new remedies on separation would seek to address. The law of trusts might be felt to be adequate to deal with any financial dealings between the parties, and Schedule 1 to the Children Act 1989, together with child support, adequate to provide remedies for any children they might have.
9.40      Another danger of drawing a line based on a shared household might be to discourage the commencement of cohabitation when the female partner becomes unexpectedly pregnant. The potentially liable partner might be discouraged from moving in if the fact of cohabitation would bring the couple within the scope of a new scheme. However, this assumes that people's conduct of their personal relationships is influenced significantly by the law, an assumption which, as we discussed in Part 5, may not commonly be the case.^[47] Moreover, potential liability already exists in such cases for child support and under Schedule 1 to the Children Act 1989, so the introduction of new remedies might not make a difference to behaviour in that regard.^[48] As ever, though, seeking to make any prediction of the likely impact of reform on relationship behaviour is a difficult exercise.
9.41      Since this project is concerned with cohabitation, any couple that does not share a household would fall outside the scope of any new statutory scheme.
9.42      We provisionally propose that any legislative definition of those eligible to apply should expressly require that the parties shared a joint household. Do consultees agree?

Identifying eligible relationships: the checklist approach

9.43      The marriage analogy and other tests (on their face) only take us so far. What features of a relationship make it analogous to marriage? What are the indicia of an "enduring family relationship", and what further qualification does the word "partners" add?^[49] In the absence of further criteria in the statutes, the courts tend to apply these tests with the aid of a judicially-developed checklist of factors that the relevant type of relationship might be expected to exhibit.
9.44      The domestic "checklist" approach originates in social security law, which has for many years^[50] treated cohabitants (defined by way of the marriage analogy) as a single economic unit for the purposes of means-tested benefits, just as spouses and civil partners are. That body of law created a set of six "admirable signposts"^[51] which have been borrowed by the courts for use in other contexts^[52] to assist in the identification of cohabiting relationship as "living together as husband and wife":

(1) whether the parties are members of the same household;

(2) the stability of their relationship;

whether and to what extent the parties are financially interdependent;

(3) whether the parties have a sexual relationship;

(4) whether the parties have children together; and

(5) whether the parties are acknowledged publicly as husband and wife.

9.45      Although it has been said that it is the general characterisation of the relationship that is important,^[53] whether the parties' relationship is found to fall within the category specified in the legislation depends in large part on how their relationship matches these factors. The relationship need not satisfy all of the criteria to be recognised; for example, few cohabiting couples nowadays pretend to be married.^[54] Nor is the checklist exhaustive of all factors that could be addressed; all of the circumstances relating to the relationship will be examined. However, the existence of a sexual relationship^[55] has been regarded as particularly important.^[56]
9.46      Checklist factors aside, the Court of Appeal recently examined the marriage analogy test in the context of tenancy succession. It approved the suggestion that, in order for the parties to be regarded as "living together as husband and wife" for those purposes, they must have had "an emotional [relationship] of mutual lifetime commitment rather than simply one of convenience, friendship, companionship or the living together of lovers" (at least at some point in the relationship), and that their relationship must be "openly and unequivocally displayed to the outside world" and so be considered by society to be intended to be permanent.^[57]

Checklists in other jurisdictions

9.47      Other jurisdictions with default schemes often supplement the basic definition of the qualifying relationship with an express statutory checklist of factors designed to aid the court in identifying those relationships that fall within the definition. ^[58]
9.48      Some schemes seek to provide greater certainty in the identification of qualifying relationships by defining the relationship closely without reference to a checklist. For example, where there are children, the American Law Institute have proposed that two persons should be classified as domestic partners simply by virtue of their maintaining a common household with their common child^[59] for a defined period.^[60] The scheme for financial provision then applies automatically with no room for further analysis of the parties' relationship. The child is thus the crucial factor that triggers the application of the scheme.

POSITIVE OR NEGATIVE USE OF THE CHECKLIST

9.49      In Australian and New Zealand legislation, as under current English law, the checklist of factors operates as a basis for positively identifying qualifying relationships.
9.50      The approach of the American Law Institute to relationships without children is different.^[61] It sets up a presumption that parties are "domestic partners", subject to the scheme, where they share a common household and are not related by blood or adoption. The checklist may then be used to rebut the presumption.

EXHAUSTIVE OR INCLUSIVE CHECKLISTS

9.51      The checklist may be exhaustive: that is to say, only the factors listed and no other features of the case may be considered.^[62] Alternatively, the checklist is inclusive, so that the court is free to consider all the circumstances of the case, not just those enumerated in the list.^[63] The legislation may also specifies that a relationship may be eligible even if not all factors are present.^[64]

THE FACTORS

9.52      The checklists often contain many factors extending well-beyond the six signposts used thus far by English law and touching on almost every aspect of domestic life. They variously include:

(1) the duration of the relationship;

(2) the nature of the relationship;

(3) the degree of mutual commitment to a shared life;

(4) the nature and extent of common residence;

(5) whether the parties maintained a common household;

(6) whether or not the parties had a sexual relationship;

(7) the emotional or physical intimacy of the parties' relationship;

(8) the extent of financial interdependence or dependence, if any;

(9) the extent to which any financial dependence was encouraged or fostered by the relationship;

(10) the ownership, use and acquisition of property;

(11) the performance of household duties;

(12) whether the parties have or care for children, either of both or one of them;

(13) the reputation and public aspects of the relationship;

(14) oral or written statements or promises made to each other, or representations made jointly to third parties, regarding their relationship;

(15) the extent to which the parties acknowledged responsibilities to each other, for example, by naming the other as eligible to receive benefits under an employee-benefit plan; and

(16) the parties' participation in a commitment ceremony or registration as a domestic partnership.^[65]

Discussion

9.53      Checklists bring both advantages and disadvantages. A checklist approach inevitably brings with it a level of uncertainty and subjectivity in decision-making. That concern may be overstated - plenty of relationships clearly fall within the concept of cohabitation. But there will always be cases where the proper characterisation of the relationship is more arguable.^[66] This may, however, just reflect the inevitable uncertainty attendant on identifying relationships which have not been formalised.
9.54      The checklist approach is familiar to English courts and perhaps helps to locate that intangible quality of a relationship that makes two people a couple. Ascertaining whether the couple were "cohabiting" in the relevant sense necessarily entails an examination of how the parties organised their joint lives, and a checklist indicates in advance the types of factors to which the court should have regard. If applied in an inclusive rather than exclusive way,^[67] and without requiring any particular factors to be present, it also caters for the diversity of couple relationships.
9.55      We provisionally propose that any legislative definition of those eligible to apply should include an express, non-exhaustive checklist of factors to which the court would have regard in determining whether a couple were cohabiting. Do consultees agree?
9.56      We invite the views of consultees on the factors that they consider should be included in such a statutory checklist.

AUTOMATIC ELIGIBILITY FOR "COHABITANTS WITH CHILDREN"?

9.57      The selection of eligibility criteria ought to depend, at least in part, on the nature of the remedies that would be available to eligible relationships. As we discussed in Part 5, it may be the case that simply demonstrating the existence of a "couple" relationship ought not by itself to generate an eligibility to apply for any new remedies. Additional criteria might be imposed, depending on the nature of the remedy.
9.58      One option is that any new scheme should be confined to cohabitants with children. It may be felt that the case for allowing these cohabitants access to financial relief on separation and death^[68] is sufficiently strong that they should be automatically eligible to apply, whatever the duration of the relationship.^[69] Some other jurisdictions, however, do impose a minimum duration requirement in these cases too, albeit (usually) one shorter than that applying to couples without children.^[70]

Joint parents

9.59      If cohabitants with children were to be automatically eligible (or subject to a shorter minimum duration requirement), it would become necessary to identify which children should count for this purpose. This is initially straightforward. Wherever the couple are the legal parents of a child, they should be automatically eligible.^[71] The case for automatic eligibility would be particularly strong, in our view, if financial relief were to be based on economic advantage and disadvantage. Since parenthood is perhaps the principal cause of substantial economic disadvantage within relationships, it would be unacceptable to deny remedies to such individuals where pregnancy occurred early in the relationship and separation followed shortly thereafter.
9.60      In our view, an applicant should also be automatically eligible where those children have become independent of their parents. It would seem unfair to bar a claim being made by an applicant if separation occurs immediately following the youngest child reaching 18 or leaving home.^[72]
9.61      Similarly, there might be a case for allowing automatic eligibility, once the child were born, in cases where the relationship ended during the applicant's first pregnancy with a child of whom the respondent would be a parent.^[73] It would again seem unfair for the putative respondent to be able to avoid liability under any new scheme^[74] by moving out before the child's birth.^[75]

Other cohabitants with children^[76]

9.62      Matters become more complex once we depart from the central case of joint parenthood. This will not be uncommon. A large number of cohabiting families with dependent children are step-families,^[77] composed of adults with children of one or both parties from previous relationships. The parties may also be jointly responsible (whether pursuant to a residence order or some other formal arrangement,^[78] or informally) for the upbringing of other children of whom neither party is the legal parent.^[79]
9.63      We have discussed this issue already in relation to the substantial principles (in Part 6) where we asked whether the applicant ought to be able to make an economic disadvantage claim in relation to the care of children who are not the joint children of both parties. In that context, we concluded that it might be desirable to allow claims on this basis to be made not only in relation to care for a child of whom both parties were the legal parents, but also in relation to other "children of the family".^[80]
9.64      However, it is necessary to revisit the issue in this context, since eligibility and the application of the substantive principles to eligible cases can and ought to be examined separately. For example, while it might be considered appropriate to allow care for step-children to underpin an economic disadvantage claim, there could be arguments for saying that automatic eligibility to apply for financial relief in the event of death or separation ought not to arise as soon as a couple with children from previous relationships started cohabiting, especially if the applicant would not be caring for the respondent's children after separation. In practice, it is perhaps likely that cases involving claims for economic disadvantage based on care for a child of whom the applicant is not a parent would involve longer relationships, which would therefore satisfy a minimum duration requirement in any event.^[81]
9.65      On the other hand, it might be argued that a decision to cohabit where one party has children from a previous relationship is likely to be made carefully on both sides, and that it would therefore be appropriate to presume that there is a serious level of commitment between the parties in such cases which would make it appropriate for them to be eligible from the outset of the relationship.
9.66      Some Australian states include cases where one party will be caring for the other's child following separation as exceptions to the minimum duration requirement that would otherwise apply, but only where "serious injustice" would be caused to the party caring for the child were no order made.^[82]
9.67      We consider that cohabitants who are by law the parents of a child born before, during or following their cohabitation ought to be automatically eligible to apply for remedies under any new scheme on separation. Do consultees agree?
9.68      We invite the views of consultees on whether cohabitants with a child who is not the child by law of both parties ought to be eligible regardless of the length of their relationship, and, if so, in what circumstances.

A MINIMUM DURATION REQUIREMENT FOR "COHABITANTS WITHOUT CHILDREN"?

9.69      If cohabitants without relevant children^[83] were to be included within the scheme, two questions would arise. First, whether such couples should only be included where their relationship satisfied a minimum duration requirement. Secondly, whether there were any situations in which it ought to be open to the court to waive a minimum duration requirement that would otherwise apply.

Minimum duration requirements

Current English law

9.70      The only remedies currently available between separating cohabitants (tenancy transfer and occupation orders) have no minimum duration requirement.^[84] The mere existence of the relationship is enough to attract legal protection, without needing additionally to show that it has lasted a given length of time. This is also the case for remedies for domestic violence;^[85] means-testing for welfare benefits;^[86] calculation of child support;^[87] and succession to some tenancies on death.^[88] By contrast, ^[89] access to fatal accident compensation^[90] and eligibility to apply for discretionary provision on death of the partner under the Inheritance (Provision for Family and Dependants) Act 1975 depend on two years' cohabitation (even where the couple had a child).^[91]
9.71      As we discuss below, whether a minimum duration is required should depend on the policy requirements of each legal context and the nature of the remedy. There is clearly less justification for onerous restrictions on eligibility to apply where for protection from domestic violence is at stake,^[92] than in the context of access to financial or property remedies which affect third parties.^[93]
9.72      Even where no minimum duration is prescribed, the passage of time may often be integral to proving that the parties are cohabiting at all.^[94] Without evidence of clear intentions at the outset of a relationship, the passage of time may be used to demonstrate that a relationship is sufficiently stable to be categorised as cohabitation and so to warrant the legal recognition in question.

Reform proposals and other jurisdictions^[95]

9.73      Existing proposals for remedies on separation and death in this jurisdiction would require that the parties either cohabit for at least two years, or cohabit and have a "relevant child".^[96] The proposed minimum duration fits with existing English legislation that sets a two-year limit.^[97] Uniformity is a desirable objective,^[98] but it is worth asking whether it is proper to adopt a minimum duration requirement at all for a new scheme, and, if so, whether two years is, on grounds other than uniformity,^[99] an appropriate limit to adopt.
9.74      Many other jurisdictions with default remedies prescribe minimum duration requirements, usually of two^[100] or three^[101] years. South Australia requires relationships to have lasted for five years in order to qualify for provision on death.^[102]
9.75      Other jurisdictions do not require a defined period of time to have elapsed before the relationship is eligible for remedies, even where the couple have no children.^[103] However, although there may be no explicit duration requirement, where the definition of the relationship refers to "stability", "continuity", or "permanence" that element might often be most easily demonstrated by the passage of time.^[104] The Family Law (Scotland) Act 2006 requires the court to consider the length of the relationship in classifying the relationship as one of cohabitants, but does not set any minimum duration for eligibility to apply for financial relief on separation and death.^[105]

Relating eligibility to the remedy: rule-based and discretionary schemes compared

9.76      A minimum duration requirement could be considered to have at least two functions. At the level of principle, it could serve as a mechanism for isolating those cases which might be thought to merit access to a particular type of remedy. Whether such a function were necessary would depend at least in part on the nature of the remedy in question, an issue we discuss in this section. Pragmatically, a minimum duration requirement could serve the purpose of barring large numbers of cases from coming to court at all.
9.77      Our provisional proposal in relation to both separation and death is that any new remedy should operate by way of judicial discretion, rather than by way of automatic equal sharing on separation or entitlement to a defined share on intestacy. This preference for discretionary over rule-based approaches has potential implications for eligibility criteria.
9.78      Where a scheme is rule-based, the eligible applicant is automatically granted whatever share the rule prescribes. This gives the eligibility criteria immense significance as they have to identify, as closely as possible, those relationships for which the prescribed outcome is just. A detailed definition addressing particular aspects of the relationship relevant to the appropriateness of that entitlement or a stringent minimum duration test may therefore be required.
9.79      By contrast, eligibility criteria are less crucial where a scheme is discretionary. The fact that the relationship falls within the scheme entitles the applicant to apply. But whether any award is made, and, if so, in what form and how valuable, depends on further close examination of individual features of the case and satisfaction of whatever substantive principles justify relief being granted. This means that the eligibility criteria have less work to do, leaving the substantive principles and the court's remedial discretion to fashion an appropriate outcome.
9.80      Despite our provisional preference for discretionary remedies, the following discussion explores the different implications of the various rule-based and discretionary options examined in Parts 6 and 8.

Remedies on separation: the implications of different principles

9.81      The options for remedies on separation may be regarded as falling into two broad camps for the purposes of eligibility criteria:

(1) remedies which seem most suitable for cases where there is a clear level of commitment or assumption of responsibility between the parties: rule-based equal sharing, discretionary schemes based on "partnership" and needs-based remedies; and

(2) remedies which respond to the actual economic impact (if any) on each party of their contributions to the relationship: economic advantage and economic disadvantage, including future child-care costs. These remedies may be described as "self-limiting", an expression which we explain at paragraph 9.85 below.

9.82      In our view, the nature and strength of the case for imposing a minimum duration requirement differs in each category.

Rule-based or partnership-based schemes

9.83      Rule-based equal sharing and discretionary schemes based on partnership or need would, in our view, warrant a minimum duration requirement. Any form of automatic entitlement should be conferred with caution. Given the variety of cohabiting relationships and the lack of clear assumption of mutual responsibility akin to that made on marriage, any law imposing this more expansive sort of remedy ought to be reserved to cases which exhibited clear evidence of commitment to a stable relationship. That would be particularly important, in our view, for wide needs-based remedies covering needs unconnected with the relationship, such as disability.
9.84      Proof that the relationship has lasted a given duration might be thought to provide easy, if imperfect, proxy-evidence of that commitment. However, as we noted in Part 6, the mere passage of time may not be a factor which, in itself, necessarily leads to greater financial interdependence. Life events such as marriage, buying a home on mortgage, and starting a family may be more indicative of the sort of commitment which such schemes presuppose.^[106]

"Self-limiting" discretionary remedies

9.85      The Scottish Law Commission^[107] recommended that no minimum duration requirement be incorporated in the scheme now enacted by the Family Law (Scotland) Act 2006, based on the principles of economic advantage and disadvantage. When originally putting forward this reform in its Discussion Paper, the Scottish Law Commission said:

There is no compelling reason of principle why [any qualifying period of cohabitation] should be [required]. The operation of the principle would be self-limiting because it would come into operation only if there were relevant contributions or sacrifices, advantages or disadvantages. Indeed, relevant events, such as contributions to the purchase or improvement of a home, or the giving up of employment in the interests of the other partner, would often occur at or near the beginning of the cohabitation. On the other hand, there could be a strong practical reason for requiring a qualifying period of cohabitation before allowing a cohabitant to apply to a court for an order for financial provision. This would serve to sift out cases where there was no long-term commitment. As a practical matter it would seem to be undesirable to burden the courts with applications from disappointed parties to short-term relationships. If a qualifying period were thought desirable the choice of period is to some extent an arbitrary one. The period should be long enough to separate casual arrangements from those involving a relationship of some permanence, but not so long as to deny relief to too many deserving cases. We would suggest that a period of three years might be considered. It could, of course, be changed later in the light of experience.^[108]

9.86      In the event, no minimum duration was recommended. The Scottish Law Commission's Report emphasised the self-limiting nature of the remedies.^[109] That view is reflected in the Family Law (Scotland) Act 2006.^[110]
9.87      There is a lot of force in this view. The self-limiting and discretionary nature of the economic advantage/disadvantage principle means that no relief would be granted where no relevant benefit had been retained or sacrifice made. If a relevant benefit or sacrifice had arisen, the length of the relationship might be felt to be irrelevant. Shorter relationships are perhaps less likely to have given rise to the types of loss or contribution for which compensation or reward is necessary, and that fact will itself prevent any claim from being successful. But as the Scottish Law Commission points out, a substantial contribution could be made early in the relationship by one partner.
9.88      On the other hand, where a direct financial contribution to the acquisition of property has been made early on, that is something that the English law of implied trusts can remedy satisfactorily, so a minimum duration requirement would not prejudice many such applicants.^[111] The general law deals less well, if at all, with economic sacrifices. In those cases, a minimum duration test might well deny otherwise deserving applicants any remedy.^[112] However, if cohabitants with children were not subject to a minimum duration requirement, the majority of those cases in which an economic disadvantage claim would be likely to be made would be eligible. In cases involving couples without children where, for example, a job had been given up in the early stages of the relationship, it might be easier to find another job quickly if the relationship had only been short.^[113]

Implications of a minimum duration requirement

9.89      If a minimum duration requirement were to be fixed, new problems would arise. Fixing any particular time period would inevitably exclude cases falling just short of the line. This could create pressure for exceptions to be introduced to cover classes of case deemed likely to warrant a remedy even if the relationship is short (or involves no relevant child): we discuss various options below. This is the approach that has been taken in Australia.^[114] If no minimum duration were imposed, then the legislature would be relieved of the task of trying to predict the categories of case, if any, in which the minimum duration requirement should be waived. A minimum duration requirement would also inevitably encourage dispute about relationships' length, or about the scope of any exceptions to the minimum duration requirement.
9.90      All this is necessarily the effect of any restriction on access to remedies; limitation periods have a similar effect. The question is where the balance lies between the practical advantages to be gained from imposing a limit and the risk of injustice being done as a result. Even though they may be arbitrary and attract litigation in marginal cases, minimum duration rules, like limitation periods, offer important benefits. In most cases, where it is clear whether or not the minimum duration requirement is satisfied, such rules provide complete certainty so both parties know where they stand. A minimum duration requirement may be felt to provide a useful, clear-cut mechanism for barring trivial or unmeritorious claims, even allowing for the self-limiting and discretionary nature of the remedy, keeping the floodgates closed and preventing nuisance claims.^[115] It might reduce the costs incurred in court time spent considering cases with no realistic prospect of success. Save in those cases where there was serious dispute about whether the relationship had reached the required length to the day, this approach would also provide certainty.
9.91      Moreover, practical considerations aside, and even allowing for the self-limiting nature of the principles which we are provisionally proposing should underpin remedies on separation in any new scheme, there remains a further point of principle, discussed in Part 5. A minimum duration requirement might be thought necessary to identify those relationships for which the prospect of any financial relief, whatever its basis, were justifiable.
9.92      We have suggested in Part 6 that claims by eligible applicants could in any event be limited by requiring the applicant to demonstrate that "substantial" or "manifest unfairness" would arise if no relief were granted. We would welcome consultees' views on whether there would be any need for such a test in addition to a minimum duration requirement.

What period?

9.93      If a minimum duration were to form part of the eligibility criteria, it would be necessary to settle on a particular duration. Where English legislation currently specifies a minimum duration (for entitlement to apply for provision on death and to claim under fatal accidents legislation) the period required is two years. The reason why that period was originally selected is unclear.^[116]
9.94      A duration could be selected by reference to research evidence about the typical length of cohabiting relationship and the characteristics of cohabiting relationships of different lengths. Norway's committee of experts on cohabitation recommended two years on the basis of evidence regarding the relative probabilities of cohabitation and marriage ending at various points. This suggested that after two years cohabitation in Norway (in 1999) becomes more stable and marriage-like.^[117] The two-year requirement in New South Wales reflects its Law Reform Commission's 1983 recommendation, based on "case studies [that] suggest that de facto relationships of this duration involve substantial intermingling of finances, joint purchases of property and other assets, and non-financial contributions in the form of housework and improvements to household property".^[118]
9.95      These two examples illustrate some of the different criteria that can be used to select a minimum duration. By focusing on economic and social behaviour within relationships, the Australian approach could be described as "functional": by what point do cohabitants as a group tend to organise their lives such that the relationship impacts significantly on their economic positions, making it appropriate to provide remedies to unravel their joint life?^[119] By contrast, the Norwegian approach could be characterised as "commitment-based": at what point does cohabitation tend to become sufficiently stable that remedies are merited?
9.96      As we have already discussed, whether and when commitment ought to be a component of qualifying relationships perhaps cannot be considered, as a matter of principle, without reference to the type of remedies on offer. But whatever approach is adopted, this sort of exercise must be based on relevant local research data of the sort reported in this consultation paper, as social conditions vary by country. Moreover, it must be accepted that minimum duration rules are an imperfect tool for identifying commitment: some deeply committed relationships may be short (especially if cut short by untimely death) while some very long relationships may in fact entail little commitment or interdependence.

The relevance of breaks in cohabitation

9.97      A minimum duration requirement ought to pose no problem for cases where one party was in hospital,^[120] overseas or otherwise temporarily absent from the shared household for any period. Where the parties still regard the relationship as ongoing despite the temporary physical absence, and the absent party still a member of the joint household, the clock should continue to run.^[121]
9.98      More difficult is a relationship which is "on-off", but whose "on" periods cumulatively meet the required duration. Ought continuous cohabitation be required, or should it be possible for the clock to be stopped for any period of time?

Alternative triggers for short relationships?

9.99      If a minimum duration requirement were adopted for cohabitants "without children", it would be necessary to decide whether any characteristics or circumstances ought to allow parties to shorter relationships nevertheless to apply for some or all of the remedies offered by the scheme. These would be cases where the extra factor means that the rationale on which remedies are awarded (whether that rationale be functional, related to commitment, or something else) might be felt to apply despite the relationship's relatively short length.
9.100      We have already considered cases where the couple have children. Other circumstances that might warrant this treatment include:

(1) the fact that one party has cared during the relationship and/or will be caring after the relationship for a child whose presence does not automatically entitle the parties to apply for financial relief, as discussed above at paragraph 9.62;

(2) the fact that one party has cared during the relationship and/or will be caring after the relationship for some other dependant of the other party,^[122] for example an elderly relative; or

(3) the fact that one party has made a substantial contribution, whether financial or otherwise, to the relationship, including contribution towards the costs of the other party's education or training, or made a substantial sacrifice for the benefit of the relationship.^[123]

9.101      We have already discussed, at paragraph 6.230, the possibility that a "substantial" or "manifest unfairness" test might be imposed as precondition to a successful claim, even by an eligible applicant. Alternatively, such a test could be used specifically in relation to short relationships as part of the test for eligibility to be granted. As well as setting out the types of case in which short relationships may attract remedies, it could additionally be required that, given those circumstances, "the court is satisfied that failure to provide a remedy would result in serious injustice" before allowing an application.^[124]
9.102      Whether any of these triggers, and if so which of them, ought to be included again ought to depend on the nature of the remedies. For example, the third exception suggested above could operate as a safety valve for one of the schemes generally thought to require a commitment-based minimum duration, perhaps enabling more modest relief to be granted in such cases. It would ensure that where an individual had in fact sustained substantial economic advantage or disadvantage pursuant to a relationship, that could be remedied, even if the relationship had not lasted long enough to warrant the more expansive remedy that would otherwise apply.

Deeming relationships to be short

9.103      Consideration also needs to be given to the converse situation: relationships which meet the ordinary duration requirement, but where it seems inappropriate for the applicant to be eligible to apply.
9.104      New Zealand's system of equal sharing of a particular pool of property (including the shared home and household goods) has different rules for short relationships (of under three years). In these cases, property is shared in accordance with the parties' respective contributions to the relationship, rather than equally. In addition, the courts have a power to "deem" a relationship to be short, even though it has lasted long enough to meet the ordinary minimum duration, if it would be just in all the circumstances to do so.^[125] Effectively, this involves a judgement that in the circumstances equal sharing would be unfair and that the contributions rule ought to be adopted instead.
9.105      This sort of exclusionary exception to a minimum duration rule is perhaps only necessary in rule-based systems. Where the court has a discretion regarding the appropriate remedy, that discretion may itself be enough to ensure that justice is done in cases where the parties' contributions have been markedly unbalanced.

Remedies on death: building on the separation analogy

9.106      Here too, we view the options as falling into two broad camps:

(1) if, contrary to our provisional proposal, the intestacy rules were amended to include cohabitants, a minimum duration requirement for eligible surviving cohabitants would be appropriate (subject, perhaps, to an exception where the couple had children, in a relevant sense^[126]); but

(2) if, as we provisionally propose, the existing remedy under the Inheritance (Provision for Family and Dependants) Act 1975 were amended to create a "separation analogy" for cohabitants, rather than confining their claims to "reasonable financial provision for their maintenance", there is an argument that whatever eligibility requirements apply to remedies on separation should also apply to claims under the 1975 Act.

Intestacy rules

9.107      For reasons discussed in Part 8, we do not consider that an intestacy rule for cohabitants is capable of efficient administration and so we prefer to develop the court's existing jurisdiction. However, if cohabitants were included in the intestacy rules, it would, in our view, be appropriate to impose a minimum duration requirement.
9.108      Curiously,^[127] some Australian states allow de facto partners to inherit automatically on intestacy without fulfilling the minimum duration that applies to claims on separation.^[128] The lack of minimum duration requirement, combined with the problematic nature of cohabitation itself, causes difficulty where the family members dispute the existence of a de facto relationship and this simply delays the administration of estates. In our view, it may be very difficult to differentiate between a fleeting arrangement and a more committed relationship of the sort where automatic inheritance would be objectively appropriate (and regarded as appropriate by the individuals involved). There will, of course, be cases where a deeply committed cohabitation that would otherwise have lasted for years is cut tragically short, but, in the absence of a will, those cases may be better dealt with by discretionary provision.
9.109      The automatic share vested in beneficiaries of the intestacy rules is a paradigm example of the sort of right (rather than remedy) which should be restricted to cases where it is clear that this sort of entitlement would be appropriate, and best reflects what the deceased's intentions might have been. All existing categories of beneficiary can claim either a blood relationship or a formalised relationship of marriage or civil partnership with the deceased. If the list were to be extended beyond those categories to someone who is a legal stranger of the deceased there should be clear evidence that the relationship was a stable and committed one. In the absence of any other satisfactory way of reaching that conclusion, a minimum duration offers the only, imperfect, means of identifying such relationships.

Provision under the 1975 Act

9.110      Cohabitants are currently eligible to apply for remedies under this legislation where the parties lived together for at least the two years immediately before the death. In so far as provision is essentially needs-based, the imposition of a minimum duration requirement may be an appropriate mechanism for identifying those cases where it can be said that the deceased might have assumed some responsibility for the applicant's maintenance. However, there are no exceptions to that requirement, so that, for example, the cohabitant of less than two years who has a child by the deceased is not entitled to claim as a cohabitant, and will instead have to demonstrate dependency.^[129] If dependency cannot be shown, then the survivor will not be eligible to claim at all, though it seems that the courts are prepared to be quite generous in their assessment of such claims.^[130]
9.111      Under the existing scheme, claims are based on maintenance. We have provisionally proposed, however, that "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act for "cohabitants" (as opposed to dependants) should be detached from the maintenance standard and subjected to the separation analogy.
9.112      There is a case for saying that whatever eligibility requirements were created for a new scheme of remedies on separation should be carried through into the 1975 Act. The foregoing discussion of minimum duration in relation to remedies on separation, and the automatic eligibility of cohabitants with children, therefore applies by extension to these cases. There might also be thought to be some advantage in terms of public understanding of the law if the same eligibility criteria applied to both claims on separation and death.
9.113      On the other hand, there might be a case (in relation to cohabitants without children) for allowing a shorter minimum duration for eligibility on death than on separation. As we noted above, the ability of the passage of time reliably to demonstrate commitment is challenged most starkly by the death which cuts prematurely short a fully committed relationship, intended by both parties to be long-term.
9.114      We invite the views of consultees on:

(1) whether parties who do not have a relevant child should have lived together as cohabitants for a specified minimum duration before they are eligible to apply for financial relief on separation ("a minimum duration requirement");

(2) how any such minimum duration requirement should be selected;

(3) how long any such minimum duration requirement should be;

(4) whether the same period should apply to claims on separation and claims on death under the Inheritance (Provision for Family and Dependants) Act 1975;

(5) how any minimum duration requirement should deal with breaks in the continuity of the parties' cohabitation; and

(6) whether there are any circumstances (other than those already considered in relation to cohabitants with children) in which any minimum duration requirement should be waived, and if so what those circumstances should be.

9.115      We invite the views of consultees on whether the two-year minimum duration requirement currently applying to claims by cohabitants under the 1975 Act should be amended, particularly in relation to cohabitants with children.

IDENTIFYING THE END OF THE RELATIONSHIP

9.116      Defining the onset of cohabitation is more difficult than identifying the start of a marriage, given the lack of formal requirements for the creation of the relationship. Similarly, since cohabitation ends without the need for legal proceedings and court order, pinpointing its termination may be difficult too. It depends principally on the erosion of those factors which resulted in the relationship's initial recognition.
9.117      A recent case^[131] considered this issue in relation to eligibility to apply for financial provision on death of the alleged partner, for which it is currently necessary to show that the parties were living in the same household as husband and wife for two years "immediately before" the death.^[132]
9.118      The parties had lived together for 27 years in property owned by the deceased. The deceased's addiction to alcohol and the serious problems that this caused had occasionally driven the applicant to leave the home temporarily for short periods, at most for a week. Three months prior to the death, following a disturbing suicide threat by the deceased, the applicant had left again, taking only a small suitcase of clothes. Her doctor advised her to leave temporarily owing to the adverse effect of the deceased's behaviour on her own health. The deceased had (as was usual) appealed, via his partner's daughter, for her to come back, but the daughter had not passed on those messages for fear that her mother would immediately return. He died before she returned.
9.119      Could the applicant be regarded as living in the same household as the deceased as his wife immediately before his death? Both the trial judge and the Court of Appeal held that she could, applying divorce case law on the concept of separation.^[133] Whatever the precise situation on the ground at the moment of death, what mattered was the general state of affairs. The settled relationship between the parties, revealed by their history, was clearly akin to that of husband and wife. The temporary suspension of the physical aspect of that relationship by virtue of their residing in separate places did not, in the circumstances, terminate it. The applicant and deceased still shared a household as husband and wife and would be regarded as doing so until the circumstances showed that the relationship had irretrievably broken down, by virtue of one or both parties demonstrating a "settled acceptance or recognition that the relationship is in truth at an end".^[134] On the evidence, the couple therefore had the relevant type of relationship "immediately before" the death.

Remedies on separation

9.120      For the purposes of remedies on separation, it would be necessary to show that cohabitation had ended during the parties' joint lifetime in order for a particular remedy or other legal consequence to flow.^[135] Identifying the particular point at which the relationship ended would also be important for the operation of any limitation period.^[136]
9.121      For these purposes, the obvious analogy is matrimonial case law dealing with separation. Parties might be separated even though they continued to live under the same roof, where they did not share the same household either at all^[137] or not in the capacity of husband and wife.^[138] Alternatively, as Gully v Dix^[139] demonstrates, a couple might still be regarded as living together as a couple even though temporarily physically separated.^[140]
9.122      In some cases, parties may be unable to disentangle their domestic lives sufficiently to be regarded as living in separate households. In order to cater for such cases, it could alternatively be possible to permit one of them to invoke the court's jurisdiction simply by applying for relief.^[141] In such cases, no limitation problem would arise.

Remedies on death

9.123      In this context, the end of the relationship may deprive an individual of access to a remedy that would otherwise have been enjoyed. We have, however, provisionally proposed that former cohabitants should be eligible to apply for a remedy where they separated from the deceased within twelve months of his death and had not instigated proceedings for a remedy on separation, or any such proceedings had been overtaken by the death.^[142]
9.124      We invite the views of consultees on how the separation of cohabitants should be identified for the jurisdictional purposes of:

(1) determining eligibility to apply; and

(2) application of the limitation period for financial relief.

SPECIAL ISSUES

Eligibility to apply under a new scheme: basic exclusions

9.125      In defining cohabitation for particular legal purposes, lines must be drawn somewhere and some relationships would inevitably fall outside the scheme. The question is what lines should be drawn and how. Current domestic legislation dealing with cohabitants does not set out any basic exclusions from eligibility, in terms of the "capacity" of the individuals involved or otherwise.^[143] Nor have the courts yet had to consider whether they ought to apply. But some of them have been addressed administratively in the context of social security.
9.126      Other jurisdictions which operate default schemes on separation and death often exclude certain types of relationship automatically. Most obviously, the parties must not already be in a formalised relationship with each other, whether marriage or some other form of registered partnership permitted by their jurisdiction. Some jurisdictions set a minimum age limit, sometimes higher than the legal age for marriage, either expressly or impliedly via a requirement that the parties be adults.^[144] Some expressly exclude a specified range of blood relations or family members within the prohibited degrees for marriage from their scope.^[145]

Relatives

9.127      The family relationships between blood relatives fall outside the scope of this project.^[146]
9.128      In so far as the project is concerned with couples, between whom sexual relations might ordinarily be characteristic, the criteria for eligibility ought to exclude parties between whom sexual relations would be criminal because of their family relationship, even if consensual.^[147] This is the approach adopted by social security law.^[148]
9.129      The restriction could be extended, as in other jurisdictions, to all relations falling within the prohibited degrees for marriage and civil partnership.^[149] The range of prohibited degrees is broader than the criminal law's restrictions as it applies between adults, in so far as it covers certain adoptive and step-relations, as well as blood relatives.^[150] For the purposes of social security law, a couple will not currently be regarded as cohabitants, living together as husband and wife, if they fall within the prohibited degrees.^[151]

Minors

9.130      The analogy with the criminal law and marriage law suggests that relationships in which one or both parties is a minor under the age of 16 should not be recognised as cohabitants. Any sexual relationship here would involve both criminal law and child protection issues.^[152]
9.131      The criminal law in some circumstances goes further and outlaws sexual activity between minors, including those aged 16 and 17, and particular people close to them. Notably, the definition of "family relationships" for these purposes is substantially wider than it is for the offences between adult relatives and for the prohibited degrees for marriage.^[153] However, no offence is committed where the child is over 16 and lawfully married to, or a civil partner of, the other party.^[154] In those cases, the child's parent should have consented to the relationship.^[155] While parental consent could be required for any new opt-in regime, no such procedure could be put in place for "authorising" cohabitation under a default regime which, being informal, cannot accommodate that sort of formal mechanism.
9.132      Again, this is reflected in social security law's refusal to recognise a couple as cohabitants, if sexual intercourse between them (whether it actually occurs or not) would amount to a criminal offence.^[156]
9.133      The age of 18, of course, also marks the point at which individuals reach majority, and that may itself be a good reason to select 18 as the minimum age for cohabitants. In Part 10, we address one particular issue relating to minority: the impact of legal minority on such individuals' capacity to conclude binding opt-out agreements.^[157]
9.134      On the other hand, to exclude minors entirely from the scheme might be unfair. For example, a young woman of 17 who became pregnant by her cohabiting partner might be considered to have a strong claim on the merits for some degree of financial relief. Were the relationship to be ended by death, a minor in those circumstances could, however, be classified as a dependant if not a cohabitant for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975, and so be entitled to claim against the estate of his or her deceased partner.
9.135      We invite the views of consultees on whether relationships to which one or both parties is a minor at the time that the claim would be made or when the parties are relatives within the prohibited degrees should be eligible, in any circumstances, for the purposes of financial relief on separation.

Carers

9.136      Relationships between carers and dependants are also excluded from the scope of this project.^[158] Many spouses find themselves acting as carers for their husband or wife, particularly in later life. The same is true of many cohabitants. So the fact that the relationship involves a considerable caring element would, of course, not bar it from eligibility under a new scheme. The exclusion must instead be understood to apply to those relationships based principally on caring, whether by a blood relative or friend of the dependent individual. Where the parties are blood relations, they fall outside the terms of reference in any event on that basis.

Commercial relationships

9.137      Relationships which are essentially commercial (such as landlord and lodger or tenant) are also excluded from this project. Again, there is scope here for ambiguity. In some cases, an intimate relationship might develop between the parties such that they can properly be regarded as a couple, or one partner might happen to rent other property to the other as part of a commercial venture which is incidental to their relationship. Although cohabiting couples might be expected to contribute jointly to the running of the household, continued payment of rent (as such) in respect of their shared home might detract from a finding that the parties have become a couple to whom any new family legislation (as opposed to the law of landlord and tenant) ought to apply.^[159]

Concurrent relationships

9.138      The terms of reference for this project state that "at the very least the relationship should involve cohabitation and bear the hallmarks of intimacy and exclusivity".^[160] In most cases that raises no problems. However, there are at least two categories of case in which the concept of exclusivity needs closer examination.

A "moribund" marriage and a concurrent cohabiting relationship

9.139      Before the liberalisation of divorce law in 1969, it was quite common for parties to marriages that had irretrievably broken down to live apart. They could not terminate their legal relationship, but they could lead separate lives and form new relationships. The marriage for all day-to-day purposes would be moribund, but the legal status remained. Despite the liberalisation of divorce law, there are still occasionally cases where, for one reason or another, the parties cannot or do not dissolve their marriage. In some cases, this may be because of the religious convictions of one or both spouses.^[161] One individual can therefore be technically a spouse or a civil partner of one person and yet cohabit with another. This social reality is recognised by the Office for National Statistics: for the purposes of the General Household Survey, individuals who are separated but not yet divorced and are cohabiting with a third party are counted as cohabitants.^[162]
9.140      We need therefore to consider how any new scheme should deal with these cases. If the existence of a moribund marriage precluded a finding of eligible cohabitation, it goes without saying that eligible cohabitation alongside a "live" marriage could not be possible. The same considerations would apply to a moribund civil partnership.

Concurrent "live" relationships

9.141      The second situation involves an individual who is maintaining two (or more) active relationships, probably between two households.^[163] One or both of that individual's partners may be oblivious of the other relationship.^[164] This category must be subdivided further, according to whether the second relationship is another cohabitation, or a "live" marriage or civil partnership. However, if it is concluded that a moribund marriage cannot bar eligible cohabitation, that might suggest that the status of one cohabitant as a spouse or civil partner is not a bar to the recognition of the cohabitants' relationship, and that what matters is the functional existence of two relationships. If that is so, then whether the other relationship is a marriage or another cohabitation, the underlying issue might be thought to be the same.

Current English law on concurrent relationships

9.142      It is clearly not possible for an individual to be simultaneously a spouse or a civil partner of more than one person. Similarly, an individual cannot be both a spouse and a civil partner.^[165] However, a second, bigamous marriage or civil partnership, although void, will nevertheless be recognised in some legal contexts; in particular, it may attract financial relief on death or decree of nullity. An innocent party, unaware of the bigamous nature of the relationships, would certainly be entitled to claim financial relief; even the bigamous party might in some circumstances be granted some relief, particularly if the other spouse had been aware of the bigamous nature of the marriage.^[166]
9.143      It is clear that a surviving cohabitant may currently make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, even if the deceased remained technically married to someone else at the point of death.^[167]
9.144      The issue also arises in relation to tenancy succession, where it has been dealt with both in case law^[168] and legislation.^[169] It has been said in that context that someone who was a party to two "live" relationships would find it impossible to demonstrate that he was "residing with" more than one partner for the purposes of that legislation.^[170]
9.145      The Department of Work and Pensions takes the view that, for the purposes of social security means-testing, a couple must be monogamous for their relationship to be analogous to husband and wife. So where a relationship with more than one person is conducted under the same roof, each of the individuals involved - save for any individuals who are married to each other - will be treated as separate individuals.^[171] Similarly, it has been held that it is not possible for these purposes to be a member of more than one household simultaneously.^[172] These restrictions cover two live relationships, not (expressly) the moribund marriage.

The approach of other jurisdictions

9.146      Other jurisdictions vary considerably in their approach to this issue in the context of financial relief on separation and death of cohabitants. Some jurisdictions expressly bar the possibility of a cohabiting relationship being found to exist alongside a marriage.^[173] Some also expressly preclude concurrent cohabiting relationships.^[174] Others expressly permit both possibilities: a concurrent marriage and cohabitation, or two concurrent cohabiting relationships.^[175]
9.147      A number of other jurisdictions sit in the middle, expressly permitting the co-existence of cohabitation with a marriage, but not expressly providing one way or the other for concurrent cohabiting relationships. For example, most Australian states expressly contemplate the possibility of a de facto relationship (that is to say, a cohabiting relationship) existing at the same time that one or both of the parties is married to another person. While none of these states' legislation expressly permits (or rules out) concurrent de facto relationships for all purposes, case law allows for the conceptual possibility of concurrent relationships,^[176] albeit that cases of two de facto relationships might be rare.^[177]
9.148      The Family Law (Scotland) Act 2006 is understood to allow for the possibility of a (moribund) marriage and cohabitation existing simultaneously, though it does not expressly say so on its face. But the Parliamentary Committee responsible for the Bill took the view that maintaining two concurrent cohabiting relationships should not be possible. It was felt that the definition of cohabitation in the Bill - "living with another person as if they were husband and wife"^[178] - could not allow an individual to cohabit with more than one person at the same time.^[179]
9.149      Provisions expressly permitting a finding of cohabitation where a concurrent marriage exists may deal with cases of moribund marriages, but different considerations arise where the marriage is live. In that case, as in cases of concurrent cohabiting relationships, the issue is whether a cohabiting relationship can be found to exist for legal purposes at all where one partner is actively engaged in another relationship (whether it be married or another cohabiting relationship) at the same time.^[180] It may be difficult in such cases to satisfy the statutory criteria required for a cohabiting relationship to exist. We must await judicial interpretation of the Scottish provision.

Discussion

9.150      We are aware that careful thought will have to be given to what many consultees are likely to regard as the prior rights of any spouse, even if the marriage in question is, for all practical day-to-day purposes, moribund. Wherever one cohabitant is married to another person, even if that marriage is moribund, the two spouses have an on-going legal status and are entitled to instigate matrimonial proceedings for financial relief against each other. The surviving spouse also automatically inherits on intestacy, or under any valid will made in his or her favour, even if the spouses have not seen each other for years. Moreover, unlike the innocent party to a bigamous marriage, the innocent party to a concurrent cohabitation is not able to rely on the guarantee that might be felt to be implicit in compliance with the marriage formalities that his or her partner was "free".
9.151      On the other hand, since this project is concerned to relieve financial hardship arising on the termination of cohabiting relationships, it would seem appropriate to consider the possibility of relief being granted in at least some cases of concurrent relationships. This is particularly so in relation to those who honestly believe that their partners are not simultaneously party to another live relationship elsewhere, even if the partner remains formally married or in a civil partnership, and whether or not the innocent party is aware of that. As in the case of bigamous marriages, it may be appropriate to leave the question of relief to the discretion of the court in all the circumstances, rather than to bar an application entirely.
9.152      If the possibility of two live relationships were to be considered, but membership of the same household is an indispensable requirement of cohabitation, English law would have to adjust its understanding of household membership in this context. Although dual-household membership is rejected for the purposes of social security law,^[181] it may not be regarded as incompatible with the purpose of financial remedies on relationship breakdown and death.
9.153      In following sections, we consider particular implications of concurrent relationships in separation and death cases respectively. As in other contexts, the nature of the financial relief that might be provided under a new statutory scheme affects the approach to this issue. We use the expression "common partner" to refer to the individual who is involved in both relationships.

CONCURRENCY AND REMEDIES ON SEPARATION

9.154      Unlike the death of the common partner, which necessarily causes both relationships to end simultaneously and so requires the resolution of both cases, separation might only affect one relationship at a time. The key problem posed by separation cases is the source of assets used to satisfy any order. Since English law adopts a system of separate property, even during marriage, the party to the other relationship cannot by right prevent the common partner's assets from being subjected to a court order in favour of the party to the separated relationship. Clearly, however, any remedy would diminish the assets available to other household and any children within it and so the courts should at least be required to have regard to the impact of any order made on the common partner's other household, particularly in so far as dependent children were affected. In this regard, the concurrent relationship case is not entirely dissimilar to that of a respondent in ancillary relief proceedings on divorce who invokes his or her obligation to maintain a new family as a factor relevant to the court's discretion regarding the relief to be granted to the former spouse.^[182]
9.155      However, depending on the nature of the principles underpinning any new remedies, the existence of a concurrent (rather than successive) relationship would necessarily also impact on the way in which the court exercised its powers.
9.156      In a rule-based system requiring the equal sharing of relationship property, it would be necessary to allocate particular items of property to each relationship. Depending on the scope of the "relationship property" concept, that might be difficult where an asset was not readily attributable solely to either relationship. Less difficulty would arise if the rule were limited to the home and household goods.
9.157      In the case of discretionary relief based on economic disadvantage no special difficulty would arise, as the remedy would focus on the situation of the applicant, and not on any particular asset pool. Principles of economic advantage and partnership might, however, call for some link between the applicant's contributions and particular assets or gains. This might again require the court to engage in an exercise of apportionment between the two relationships.

CONCURRENCY AND REMEDIES ON DEATH

9.158      The problem of concurrent relationships is particularly acute where the death of the common partner causes both relationships to end simultaneously.

Intestacy rules

9.159      Concurrent relationships would pose a particular problem if we were to bring cohabitants within the intestacy rules. It would be necessary to decide what priority a surviving cohabitant should have relative to a surviving spouse (whether the marriage were moribund or not). It may seem unfair, in some cases, for a spouse whom the deceased has not seen for decades to inherit on intestacy ahead of a surviving long-term cohabitant. However, the 1975 Act already enables appropriate adjustments to be made where other applicants, including a cohabitant, are judged to be more deserving. A decision would also have to be made about how any new statutory legacy or interest in the residue for a surviving cohabitant should shared, if at all, where more than one person appeared to be eligible.^[183] In view of our provisional proposal that this route should not be taken, we shall not explore the issue further here.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

9.160      Concurrent relationships of all sorts pose less of a problem in the context of the 1975 Act, where the court has a discretion. At least where (as in Churchill v Roach^[184]) the marriage is moribund, there is nothing in the Act to bar a cohabitant from making a claim. It is important to appreciate that a court dealing with the entire estate on death has at its disposal a wide range of assets for distribution between competing applicants. Moreover, the legislation effectively directs the court to weigh the claims of competing applicants when deciding on what remedy, if any, to provide for any one of them.^[185]
9.161      We invite the views of consultees on whether a person should be eligible to apply as a cohabitant for financial relief on separation in respect of any period of cohabitation during which they or their partner was married to, or the civil partner of, or cohabiting with another person.

Non-marriage cases

9.162      In order to create a valid marriage it is necessary that the parties comply with the basic tests set out by the laws of nullity.^[186] Failure to satisfy one or more of those requirements may result in the marriage being either voidable^[187] or void.^[188] Even a void marriage may have legal consequences. Of particular importance in this context is the court's power to make all of those financial and property orders that it could make on divorce in the course of proceedings brought to declare a marriage void. So the outcome for the parties at the "end" of their marriage may be indistinguishable from divorce, despite the marriage being void. This will be particularly important where one or both parties were innocently unaware of the problem rendering their marriage void and they have relied on their marriage accordingly. For example, a party to a void marriage might have given up work to raise children and made other domestic contributions that would not be rewarded adequately by the general law, but only (in the event of death of the other spouse or separation) by matrimonial law.
9.163      However, there is a further category of case to which no such remedies apply, the so-called "non-marriage". These are cases where the parties are found to have departed so far from the law regulating the creation of marriage that they cannot be held even to have a void marriage and receive the benefits that flow from that.
9.164      Some of these cases involve parties who go through a ceremony which creates a marriage under their religious law but in circumstances that do not comply with the formalities necessary for such ceremonies^[189] to create a valid marriage for the purposes of English civil law.^[190] Parties to such non-marriages may be unaware of the additional formalities required by English law.^[191] They may proceed in the honest belief that they are validly married for all purposes. For the purposes of their faith, they are married, and the applicable religious law may itself provide for some financial relief on separation or death. However, the decisions of religious courts are not enforceable by the civil courts, and the content of that law and the outcomes it produces may be different from those that civil law would provide. Unlike void marriages, these relationships are not recognised by civil matrimonial law. For civil law purposes, their relationship is at best one of cohabitants and so (at least where the relationship is actually monogamous^[192]) they fall within the scope of this project.^[193]
9.165      Unlike most cohabitants, parties to non-marriages have committed themselves to each other in a ceremony which one or both of them may believe creates a valid marriage. To that extent, they perhaps have the strongest claim for some sort of remedy on separation or death of their supposed spouse. The existence of a religious marriage could be a factor to be taken into account by the court in determining whether the parties' relationship was sufficiently stable to fall within the concept of cohabitant for the purposes of any new statutory scheme.

Note 1    We consider two: legal minority and the existence of a concurrent relationship with a third party.    [Back]

Note 2    For example, imagine a system which allowed minor cohabitants to receive financial relief, but not to have orders made against them. In some cases it might not be obvious at the outset (owing to the need to balance the parties’ various claims) whether the outcome of any proceedings would be an order in favour of or against the minor. To go through the exercise only to discover that the conclusion could not be given effect owing to the bar on orders against minors would seem wasteful of time and resources.     [Back]

Note 3    And compliance with the very basic requirements implied by the law of nullity: Matrimonial Causes Act 1973, ss 11-13; Civil Partnership Act 2004, ss 49-51.    [Back]

Note 4    See n 3.    [Back]

Note 5    Though, of course, the functional aspects of the parties’ relationship would (as currently between spouses and civil partners) be very important to the court’s decision about what financial relief, if any, would be fair.    [Back]

Note 6    Tasmanian law nicely illustrates the different way in which opt-in and default relationships are defined. “Significant relationships” under the Relationships Act 2003 (Tasmania) can be established either (i) by examining the couple’s relationship by reference to the statutory checklist of factors, or (ii) simply by registering it: that fact itself proves that the relevant relationship exists. Registration is available between two unrelated, unmarried adults who have a relationship as a couple.     [Back]

Note 7    J Haskey, “Cohabiting couples in Great Britain: accommodation sharing, tenure and property ownership” (2001) 103 Population Trends 26. Some commentators oppose reform for “cohabitants” on a default basis owing to the difficulties of definition: e.g. M Garrison, “Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation” (2005) 52 University of California Los Angeles Law Review 815, at 848-852.    [Back]

Note 8    See R Probert, “Cohabitation in Twentieth Century England and Wales: Law and Policy” (2004) 26 Law and Policy 13.    [Back]

Note 9    See, for example, remedies for domestic violence (Family Law Act 1996), fatal accidents compensation (Fatal Accidents Act 1976), family provision on death (Inheritance (Provision for Family and Dependants) Act 1975), succession to certain tenancies (various Housing Acts and the Rent Act 1977). Contrast the rule-based relevance of a cohabiting partner to the calculation of child support (Child Support Act 1991, sch 1 part 1), and the treatment of cohabitants as a single economic unit for the purposes of means-tested for welfare benefits (Social Security Contributions and Benefits Act 1992). Cohabitants have also been recognised for common law purposes, eg Barclays Bank v O’Brien [1994] 1 AC 180, 198, per Lord Browne-Wilkinson.    [Back]

Note 10    Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.    [Back]

Note 11    Including the Inheritance (Provision for Family and Dependants) Act 1975. One statutory provision that has not been amended, Human Fertilisation and Embryology Act 1990, s 28(3), is the subject of a Department of Health consultation; see n 71.    [Back]

Note 12    See Part 4, n 83.    [Back]

Note 13    Relationships between more than two individuals are not included. Such relationships are not recognised for the purposes of social security law. See Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, para 11042 available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006). The New South Wales Law Reform Commission took the view that such relationships were excluded by their failure to satisfy the marriage analogy: Report on De Facto Relationships (1983) New South Wales Law Reform Commission Report No 36, para 17.17.    [Back]

Note 14    See para 9.45 below.    [Back]

Note 15    But see para 9.138 below regarding concurrent relationships.    [Back]

Note 16    Legislation using this technique was amended by the Civil Partnership Act 2004 to include a “civil partnership analogy” for same-sex cohabitants. See for example Rent Act 1977, sch 1, para 2(2); various Housing Acts; Child Support Act 1991, sch 1 para 10C(4) and (5); Social Security Contributions and Benefits Act 1992, s 137. The Criminal Injuries Compensation Authority uses this formula to define eligibility to claim in fatal cases: Criminal Injuries Compensation Authority, Guide to compensation following a fatal injury (2005) para 2(13)(c). Some older legislation took a rather more direct, and confusing, approach to the marriage analogy: eg “unmarried wife”; “reputed spouse”.     [Back]

Note 17    This class of dependant was inserted by the Administration of Justice Act 1982, and extended to same-sex cohabitants in 2004.    [Back]

Note 18    Cohabitants were first included in the scope of remedies for domestic violence by the Domestic Violence and Matrimonial Proceedings Act 1976.    [Back]

Note 19    Family Law (Scotland) Act 2006, s 25.    [Back]

Note 20    Adoption and Children Act 2002, s 144(4). This formula is also used in the Sexual Offences Act 2003; the Anti-Social Behaviour Act 2003; the Paternity and Adoption Leave Regulations 2002, SI 2002 No 2788; the Flexible Working Time (Eligibility, Complaints and Remedies) Regulations 2002, SI 2002 No 3236; and the Coroners (Amendment) Rules 2005, SI 2005 No 420.    [Back]

Note 21    Adoption and Children Act 2002, s 144(5) and (6).    [Back]

Note 22    In similar vein, proposals for reform of civil registration would have permitted a “life partner” to register a death: General Register Office, Civil Registration: Vital Change (2002) para 2.21.    [Back]

Note 23    Inserted by the Domestic Violence, Crime and Victims Act 2004, s 4.    [Back]

Note 24    We shall not discuss forms of common law marriage, which are still recognised by some states of the United States of America. Scotland has just abolished its concept of “marriage by cohabitation with habit and repute”: Family Law (Scotland) Act 2006, s 3.    [Back]

Note 25    American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002).    [Back]

Note 26    Family Law (Scotland) Act 2006, s 25(1)(a) and (b).    [Back]

Note 27    Australia: Northern Territory, South Australia and Western Australia. See Appendix C.    [Back]

Note 28    Australia: New South Wales; New Zealand. See Appendix C.    [Back]

Note 29    Australia: Tasmania. See Appendix C.    [Back]

Note 30    Sweden: see Appendix C.    [Back]

Note 31    American Law Institute proposals for reform: Principles of the Law of Family Dissolution: Analysis and Recommendations (2002).    [Back]

Note 32    Australia: ACT; see also similar tests in Victoria and Queensland. See Appendix C for references.    [Back]

Note 33    A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) p 44.    [Back]

Note 34    http://www.advicenow.org.uk/go/clm/index (last visited 4 May 2006).    [Back]

Note 35    See, for example, the notes for guidance on the form for applying for a non-molestation order: http://www.hmcourts-service.gov.uk/courtfinder/forms/fl401.pdf (last visited 4 May 2006).    [Back]

Note 36    See, for example, the DWP information leaflet WK1, “Financial help if you work or are looking for work” p 3.    [Back]

Note 37    We shall see below that the shared household is in any event a strong indication of a marriage-like relationship.    [Back]

Note 38    Pounder v London Underground Ltd [1995] PIQR P217; cf Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517, discussed below at para 9.38.    [Back]

Note 39    Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517, at [23] and [39]; applied in Pitt v Industrial Roofing Ltd [2005] EWHC 1194 (QB), judgment of 27 April 2005, QB (unreported).    [Back]

Note 40    See also the facts of Horsfield v Giltrap [2000] NZFLR 1047, which were not regarded by the judge as constituting a “de facto marriage”.    [Back]

Note 41    Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517.    [Back]

Note 42    Fatal Accidents Act 1976, s 1(3)(b).    [Back]

Note 43    We have previously recommended that any dependant should be able to claim under the Fatal Accidents Act: Claims for Wrongful Death (1999) Law Com No 263, para 7.7. Were the same facts to occur in relation to a claim on separation or death, the same problem would arise if a minimum duration requirement were imposed, unless couples with children were exempted from it. Though note that under the Inheritance (Provision for Family and Dependants) Act 1975, a cohabitant of less than two years’ standing might be eligible to apply as a “dependant”.    [Back]

Note 44    See para 2.15.    [Back]

Note 45    Kroon v Netherlands (1994) Series A 297-C.    [Back]

Note 46    Note the remedy provided by Family Proceedings Act 1980 (New Zealand), ss 79-81.    [Back]

Note 47    Not least if the parties’ “knowledge” of the law is flawed or vague; see on this specific point C Smart and P Stevens, Cohabitation Breakdown (2000) p 50.    [Back]

Note 48    Not least if the parties had only limited resources, in which case the prospect of financial relief might be only theoretical. If the couple rent their home, the remedy of tenancy transfer already exists: Family Law Act 1996, sch 7.    [Back]

Note 49    “Enduring family relationship” has yet to receive authoritative judicial attention.    [Back]

Note 50    See, for example, the Widows’, Orphans’ and Old Age Contributory Pensions Act 1925, s 21(1), the National Assistance Act 1948 and subsequent legislation; now Social Security Contributions and Benefits Act 1992, s 137, Jobseekers Act 1995, s 35(1), State Pension Credit Act 2002, s 17(1), and Tax Credits Act 2002, s 3.    [Back]

Note 51    See originally Crake v Supplementary Benefits Commission [1982] 1 All ER 498. Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006).    [Back]

Note 52    Adopted in the context of domestic violence in G v F (Non-molestation order: jurisdiction) [2000] Fam 186. The more recent statutory formulae, which do not use the marriage analogy, have yet to be judicially interpreted.    [Back]

Note 53    Re J (Income Support: Cohabitation) [1995] 1 FLR 660, 665.    [Back]

Note 54    Cf the non-marriage cases, discussed below: para 9.162.    [Back]

Note 55    At least at some point in the relationship: Re Watson (deceased) [1999] 1 FLR 878.    [Back]

Note 56    Re J (Income Support: Cohabitation) [1995] 1 FLR 660, 665.    [Back]

Note 57    Nutting v Southern Housing Group Ltd [2004] EWHC 2982 (Ch), [2005] 1 FLR 1066, at [9] and [17].    [Back]

Note 58    South Australia, uniquely in Australia, does not; see also Sweden and the Spanish autonomous region of Catalonia, regarding stable pair relationships. See Appendix C    [Back]

Note 59    Ie a child of which each is either the child’s legal parent or parent by estoppel (a concept defined elsewhere in their proposals relating to child law).    [Back]

Note 60    American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) para 6.03(2). These proposals have not been implemented by any state of the USA.    [Back]

Note 61    American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) para 6.03(3).    [Back]

Note 62    The Family Law (Scotland) Act 2006, s 25, identifies factors which “shall” be considered by the court in characterising the relationship, but does not expressly state that the list is exhaustive of factors to which regard may be had.    [Back]

Note 63    Eg New Zealand and some Australian states. See Appendix C.    [Back]

Note 64    New Zealand: see Appendix C.    [Back]

Note 65    The last three factors are taken from the American Law Institute’s Principles of the Law of Family Dissolution: Analysis and Recommendations (2002). They also include participation in a void marriage that does not give rise to the economic consequences of marriage: see para 9.162.    [Back]

Note 66    The courts are likely to adopt a purposive approach in such circumstances; see, for example, Wall J in G v F (Non-molestation order: jurisdiction) [2000] Fam 186 in the context of access to remedies for domestic violence.    [Back]

Note 67    See para 9.51.    [Back]

Note 68    Currently, the Inheritance (Provision for Family and Dependants) Act 1975 provides no exception to the two-year minimum duration requirement for “cohabitants” claims, but many applicants would in practice be able to bring themselves within the “dependants” class. In Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517, it was the lack of exemption from the minimum duration requirement for couples with children, and the lack of dependant category in that context, which denied the surviving cohabitant a remedy under the Fatal Accidents Act 1976.     [Back]

Note 69    This is the standard approach in many other countries which have default regimes (in particular Australian states and New Zealand) and is the approach recommended by the Law Society, Cohabitation: the case for clear law (2002) and Resolution (published under the name Solicitors Family Law Association), Fairness for Families: proposals for reform of the law on cohabitation (2000).     [Back]

Note 70    This is currently the position adopted in several Canadian provinces; for example, in Manitoba, the usual three-year requirement is reduced to one where the parties have a child: Family Maintenance Act c.F20 (Manitoba), s 1. Several others simply require in cases where there is a child that the relationship be of “some permanence”. The Irish Law Reform Commission has considered merely shortening the duration requirement from three to two years where there is a child, rather than dispensing with it entirely: Consultation Paper on the Rights and Duties of Cohabitees (2004) Irish Law Reform Commission CP 32-2004. Nova Scotia applies a blanket two-year requirement (Maintenance and Custody Act 1989 (Nova Scotia), s 2(aa).    [Back]

Note 71    This includes cases where the parties have adopted the child as a couple (Adoption and Children Act 2002, s 50, s 144(4)-(6)); and where they have become parents as a result of licensed treatment with donor gametes (Human Fertilisation and Embryology Act 1990, s 28(3)). The Department of Health has recently consulted on the status provisions in the Human Fertilisation and Embryology Act 1990, specifically asking whether civil partners and other same-sex partners should be covered in the same way as spouses and opposite-sex couples: Review of the Human Fertilisation and Embryology Act 1990 (2005) ch 8 – available at http://www.dh.gov.uk/assetRoot/04/11/78/72/04117872.pdf (last visited 4 May 2006).    [Back]

Note 72    In the vast majority of cases, such a couple would have been cohabiting for at least 18 years, and so would readily satisfy a minimum duration requirement. Contrast Queensland and Western Australia which expressly limit automatic eligibility to cases where the child is under 18 and, in Western Australia, to cases where serious injustice would be done to the party caring for the child were no order made.    [Back]

Note 73    This ought to include pregnancy by assisted reproduction as a result of which the respondent would become a legal parent under Human Fertilisation and Embryology Act 1990, s 28(3).    [Back]

Note 74    Assuming that the relationship had not lasted any minimum duration that might otherwise apply.    [Back]

Note 75    As recommended in Norway: Samboerne og samfunnet, NOU 1999: 25, see J Asland, “Legislation on Informal Cohabitation in Norway”, in K Boele-Woelki (ed) Common Core and Better Law in European Family Law (2005). This eligibility criterion applies under existing Norwegian legislation: Lov av 4. Juli 1991, nr. 45 om rett til felles bolig og innbo når husstandsfellesskap opphører [Act relating to the right to the joint residence and household community], section 1.    [Back]

Note 76    See Example 4 in Part 7.    [Back]

Note 77    See para 2.7(2).     [Back]

Note 78    Matrimonial law excludes foster children from the scope of the concept “child of the family”, but the presence of foster children, for whose maintenance payment is received from the state, may be relevant to the exercise of the court’s discretion in making awards between the adults.    [Back]

Note 79    For example, where grandparents take over the care of a grandchild: Re A (Child of the Family) [1998] 1 FLR 347.    [Back]

Note 80    See para 6.209.    [Back]

Note 81    A case where there was a joint residence order in relation to a step-child or other child of the family, or where the applicant had incurred substantial economic sacrifice as a result of caring for the respondent’s child, or where the applicant would, on separation, be caring for the respondent’s child, is only likely to arise between longer term cohabitants.    [Back]

Note 82    Australian Capital Territory, New South Wales, Northern Territory, Tasmania, Victoria. Resolution (published under the name Solicitors Family Law Association), Fairness for Families: proposals for reform of the law on cohabitation (2000) would automatically include cases where the parties had treated a child as the child of their family.     [Back]

Note 83    The scope of this category depends on the answer to the previous questions.    [Back]

Note 84    Family Law Act 1996, sch 7 and Part IV.    [Back]

Note 85    Family Law Act 1996, Part IV.    [Back]

Note 86    Social Security Contributions and Benefits Act 1992, s 137.    [Back]

Note 87    Child Support Act 1991, sch 1, Part 1: where children of a “partner” of the non-resident parent may reduce the amount payable.    [Back]

Note 88    Rent Act 1977, Housing Act 1988; contrast Housing Acts 1985 and 1996 for which the parties must have been cohabiting for one year prior to death.    [Back]

Note 89    Succession to some tenancies depends on one year’s cohabitation: Housing Acts 1985 and 1996; cf Rent Act 1977 and Housing Act 1988.    [Back]

Note 90    Fatal Accidents Act 1976, as amended by the Administration of Justice Act 1982.    [Back]

Note 91    Though in many cases, it may be possible for the survivor to claim as a “dependant”. But if the 1975 Act’s treatment of “cohabitants” were reformed as we have suggested in Part 8, only those who fell within that category of claimant would benefit from that reform.    [Back]

Note 92    This may also be reflected in courts’ decisions. The court in G v F (Non-molestation order: jurisdiction) [2000] Fam 186 adopted a generous, purposive approach to the identification of cohabitation; this decision pre-dated the introduction of the new category for intimate personal relationships, which need not be co-residential.    [Back]

Note 93    Again, this may sometimes be reflected in courts’ decisions: Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517; Nutting v Southern Housing Group Ltd [2004] EWHC 2982 (Ch), [2005] 1 FLR 1066; cf Gully v Dix [2004] EWCA Civ 139, [2004] 1 WLR 1399.    [Back]

Note 94    For example, in the case of eligibility to apply to adopt, no time period is specified, but the relationship must be “enduring” in order to qualify: Adoption and Children Act 2002, s 144(4)(b).    [Back]

Note 95    One scheme may adopt different criteria and time limits for relationships to qualify for different rights and remedies. See South Australia: three years for claims on separation, five years for claims on death. Other Australian states tend to work the other way around: two years on separation, but no specified duration on death.    [Back]

Note 96    See Law Society, Cohabitation: the case for clear law (2002) pp 13 and 26. “Relevant child” would be broadly construed to include adoptive children, children born by licensed assisted reproduction and non-commercial surrogacy, and children in respect of whom the parties have a joint residence order. Resolution would include any case where the parties had treated a child as a child of their family: Resolution (published under the name Solicitors Family Law Association), Fairness for Families: proposals for reform of the law on cohabitation (2000) p 4.    [Back]

Note 97    See para 9.70 above.    [Back]

Note 98    This influenced some members of the New South Wales Law Reform Commission who preferred a three-year limit, in line with other legislation then in force: Report on De Facto Relationships (1983) New South Wales Law Reform Commission Report No 36, para 9.9.    [Back]

Note 99    Not least in so far as a central plank of the uniformity argument is the minimum duration requirement under the Inheritance (Provision for Family and Dependants) Act 1975, which is itself under review in this project.    [Back]

Note 100    Several Australian states usually require two years to have elapsed before claims can be made on separation and death, but there is considerable variation between the states in the finer detail of the schemes, particularly regarding the availability of claims on death for relationships of less than two years; see also several Canadian provinces.    [Back]

Note 101    New Zealand; South Australia; several Canadian provinces. The Irish Law Reform Commission recommended a minimum duration of three years (or two years if a couple have a child): Consultation Paper on the Rights and Duties of Cohabitees (2004) Irish Law Reform Commission CP 32-2004, para 1.04.    [Back]

Note 102    Family Relationships Act 1975, s 11(1), Administration and Probate Act 1919.    [Back]

Note 103    New South Wales’ and Tasmania’s intestacy rules allow a de facto partner of any duration to inherit where there is no surviving spouse or children of another relationship; in the latter cases, the relationship must have lasted for two years minimum in order to qualify.    [Back]

Note 104    Sweden; Slovenia, which refers to relationships “lasting for a longer time”, intended to identify relationships akin to marriage (see M Gec-Korošec and S Kraljic, “The Influence of Validly Established Cohabitation on Legal Relations between Cohabitants in Slovene Law”, in A Bainham (ed), International Survey of Family Law (2001).    [Back]

Note 105    Family Law (Scotland) Act 2006, s 25.    [Back]

Note 106    See C Burgoyne, J Reibstein, A Edmunds, V Dolman, “Money management systems in early marriage: factors influencing change and stability” (2006) Journal of Economic Psychology, forthcoming, discussed at para 6.104 above.    [Back]

Note 107    Report on Family Law (1992) Scot Law Com 135, Part XVI.    [Back]

Note 108    The Effects of Cohabitation in Private Law (1990) Scottish Law Commission Discussion Paper No 86, para 5.14.    [Back]

Note 109    Report on Family Law (1992) Scot Law Com 135, para 16.4.    [Back]

Note 110    The former Commissioner responsible for Report on Family Law (1992) Scot Law Com 135 has expressed the view that had any of the remedies proposed been more absolute then this more open approach might not be appropriate and a qualifying minimum duration – at least for that remedy – might have been necessary: oral evidence of Professor Eric Clive, Scottish Parliament, Justice 1 Committee, Official Report, col 1939 (25 May 2005).    [Back]

Note 111    See Example 8A in Part 7 for discussion of indirect financial contributions in this context.     [Back]

Note 112    Remedies for the benefit of the child are of course available automatically.    [Back]

Note 113    See Example 9 in Part 7.    [Back]

Note 114    Report on De Facto Relationships (1983) New South Wales Law Reform Commission Report No 36, para 9.6, 9.8.    [Back]

Note 115    These considerations commended a minimum duration requirement to Resolution (published under the name Solicitors Family Law Association): Fairness for Families: proposals for reform of the law on cohabitation (2000) pp 4-5.    [Back]

Note 116    The fatal accidents provision originates in an amendment moved by the Government during the passage of a Bill in the Lords, and which was not debated in the Commons. There is no indication in the debates of why two years in particular was selected, but the intention behind the inclusion of the time-requirement was to identify relationships which had some degree of permanence and functioned much as marriages do: Hansard (HL), vol 429, col 1106 (The Lord Chancellor). It is worth noting that in 1982, cohabiting relationships were much less common than today; two years might have been regarded as quite a long period. Having adopted two years for the Fatal Accidents Act, two years apparently became the period of choice for English legislation, and it was suggested (without discussion) for amendments to the Inheritance (Provision for Family and Dependants) Act 1975: Family Law: Distribution on Intestacy (1989) Law Com No 187, para 59; enacted by the Law Reform (Succession) Act 1995 with very little parliamentary debate.    [Back]

Note 117    Samboerne og samfunnet, NOU 1999: 25, p 125 and p 277 and following; see J Asland, “Legislation on Informal Cohabitation in Norway” in K Boele-Woelki (ed), Common Core and Better Law in European Family Law (2005).    [Back]

Note 118    Report on De Facto Relationships (1983) New South Wales Law Reform Commission Report No 36, para 9.8.    [Back]

Note 119    See also American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) p 921.    [Back]

Note 120    See Re Watson (deceased) [1999] 1 FLR 878.    [Back]

Note 121    By analogy with matrimonial law relating to separation: see para 9.116 and following.    [Back]

Note 122    See Example 6 in Part 7.    [Back]

Note 123    This category might include cases in which the parties had chosen to have a child and one of them had left work in the expectation of childcare, but where, as a result of suffering a miscarriage or failing rounds of assisted reproduction, the couple did not fall within the cohabitants with children category.    [Back]

Note 124    For example, all Australian states, save South Australia: see Appendix C; New Zealand, Property (Relationships) Act 1976, s 14A.    [Back]

Note 125    Property (Relationships) Act 1976, ss 2E and 14-14A.    [Back]

Note 126    Many Australian states have minimum duration requirements, save in cases where the couple have a child; some have no minimum duration requirement in any case: see paras 8.08 and 9.108.    [Back]

Note 127    Information supplied by the New South Wales Law Reform Commission suggests that the New South Wales provision may be the result of a drafting error.    [Back]

Note 128    Except where there is also a surviving spouse or children from another relationship. See Appendix C for the relevant legislation. The issue of provision for de facto partners on intestacy is currently under review: Uniform succession laws: intestacy (2005) New South Wales Law Reform Commission Issues Paper No 26.    [Back]

Note 129    Cf Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517, where the Fatal Accidents Act 1976 has no general “dependency” category for claimants who do not fall within any of the relationships identified by the legislation.    [Back]

Note 130    See for example Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989; Gully v Dix [2004] EWCA Civ 221, [2004] 1 WLR 1399.    [Back]

Note 131    Gully v Dix [2004] EWCA Civ 139, [2004] 1 WLR 1399.    [Back]

Note 132    Inheritance (Provision for Family and Dependants) Act 1975, s 1(1A). Similar issues arise under s 1(1)(e) in relation to claims by other dependants.    [Back]

Note 133    Santos v Santos [1972] Fam 247.    [Back]

Note 134    Gully v Dix [2004] EWCA Civ 139, [2004] 1 WLR 1399, at [24].    [Back]

Note 135    For the time being, only tenancy transfers under the Family Law Act 1996, sch 7.    [Back]

Note 136    See Part 11.    [Back]

Note 137    Hopes v Hopes [1949] P 227, a desertion case which has been relied upon in separation cases.    [Back]

Note 138    Fuller v Fuller [1973] 1 WLR 730: where the husband returned to live in the household as a lodger of the wife and her new partner.    [Back]

Note 139    Gully v Dix [2004] EWCA Civ 139, [2004] 1 WLR 1399.    [Back]

Note 140    See also Santos v Santos [1972] Fam 247.    [Back]

Note 141    This is possible under Swedish law: Cohabitees Act 2003, s 2.    [Back]

Note 142    See para 8.41.    [Back]

Note 143    The only “capacity” requirement on the face of the statutes used to be that the parties be of opposite sex, but this no longer applies in most contexts.    [Back]

Note 144    In many jurisdictions (as in England and Wales), minors aged 16 and above can marry, but legal recognition of cohabiting relationships by those jurisdictions is reserved until adulthood/18.    [Back]

Note 145    Though, in some cases, blood relations may qualify for recognition under some other, wider category of partnership: see for example New South Wales.    [Back]

Note 146    The Law Commission: Ninth Programme of Law Reform (2005) Law Com No 293, pp 18-19    [Back]

Note 147    Sexual Offences Act, 2003, ss 64-65, which covers parents, grandparents, children, grandchildren, siblings, half-siblings, uncles and aunts (who are blood relations of the defendant), nieces and nephews.    [Back]

Note 148    Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, para 11080 available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006).    [Back]

Note 149    Marriage Act 1949, sch 1 and Civil Partnership Act 2004, sch 1. Australian states restrict de facto relationship on this basis, though the range of prohibited degrees in Australian law is narrower than here.     [Back]

Note 150    Marriage Act 1949, sch 1 and Civil Partnership Act 2004, sch 1. The restrictions on in-law relationships are due to be lifted, following the European Court of Human Rights decision in B and L v UK App No 36536/02, [2006] 1 FLR 35; see Baroness Ashton, Written Ministerial Statement, Hansard (HL), vol 675, col WS110, and the draft Marriage Act 1949 (Remedial) Order 2006.    [Back]

Note 151    Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, para 11031 available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006).    [Back]

Note 152    Sexual Offences Act 2003, ss 5-13; Children Act 1989, Part IV.    [Back]

Note 153    Sexual Offences Act 2003, ss 25-29.    [Back]

Note 154    Sexual Offences Act 2003, s 28.    [Back]

Note 155    See the formalities relating to parental consent to marriage or civil partnership of a minor: Marriage Act 1949 s 3; Civil Partnership Act 2004, s 4.     [Back]

Note 156    Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, para 11030 available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006).    [Back]

Note 157    See para 10.20.    [Back]

Note 158    The Law Commission: Ninth Programme of Law Reform (2005) Law Com No 293, pp 18-19    [Back]

Note 159    This is particularly important in so far as it would affect the proper characterisation of “contributions” to the parties’ joint life: rent, as such, ought to be treated differently from the sort of contribution to joint living expenses which a contributions-based scheme would recognise. See Part 6.    [Back]

Note 160    The Law Commission: Ninth Programme of Law Reform (2005) Law Com No 293, p 18, n 2.    [Back]

Note 161    Eg Watson v Lucas [1980] 1 WLR 1493. One spouse may be waiting for the five-year separation threshold to be satisfied before he or she can obtain a divorce (Matrimonial Causes Act 1973, s 1(2)(e)).    [Back]

Note 162    Office for National Statistics, Social Trends 36 (2006) table 2.11.    [Back]

Note 163    But contrast the polygamous non-marriage cases discussed below.    [Back]

Note 164    See, for example, Jessop v Jessop [1992] 1 FLR 591. The case involved a seaman who, unbeknown to anyone, was apparently happily married to one woman and simultaneously cohabiting with another, both families having children. The wife and partner only discovered each other’s existence when the seaman died intestate. The case did not test whether the law would recognise the cohabiting relationship, as the claim under the Inheritance (Provision for Family and Dependants) Act 1975 was made by the wife against the cohabitant. The latter had been provided for satisfactorily by the operation of the doctrine of survivorship on the home she jointly owned with the deceased and by an allocation from the deceased’s pension trustees.     [Back]

Note 165    Matrimonial Causes Act 1973, s 11(b); Civil Partnership Act 2004, s 3(1)(b).    [Back]

Note 166    Bigamy does not bar a claim outright; the court will take all the circumstances into account in exercising its discretion; see Whiston v Whiston [1995] Fam 198; Rampal v Rampal (No 2) [2001] EWCA Civ 989, [2002] Fam 85.    [Back]

Note 167    Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989: the marriage in that case was moribund.    [Back]

Note 168    Watson v Lucas [1980] 1 WLR 1493: successful claim by cohabitant in a moribund marriage to succeed to his deceased partner’s tenancy as a “member of the tenant’s family”; this case preceded the introduction of the provision expressly catering for cohabiting partners, hence use of the “member of the family” test. The fact of the marriage did not bar the applicant from being a member of his partner’s family, provided that their relationship was sufficiently interdependent and stable.    [Back]

Note 169    Legislation deals with the competing claims of a surviving spouse and cohabitant when the partner common to both relationships dies. See the various solutions adopted by, for example, the Rent Act 1977, sch 1, para 2(3); Housing Act 1988, s 17; cf Housing Act 1996, s 133.    [Back]

Note 170    Watson v Lucas [1980] 1 WLR 1493, 1499, per Stephenson LJ.    [Back]

Note 171    Department of Work and Pensions, Decision Makers Guide, vol 3, ch 11, para 11034 available at http://www.dwp.gov.uk/publications/dwp/dmg/ (last visited 4 May 2006).    [Back]

Note 172    Commissioner’s Decision R(SB) 8/85.    [Back]

Note 173    Sweden: Cohabitees Act 2003, art 1 para 3. Consultation Paper on the Rights and Duties of Cohabitees (2004) Irish Law Reform Commission CP 32-2004, para 1.18 and following: the Irish Law Reform Commission has taken the view that the Irish Constitution precludes recognition of a cohabiting relationship where one of the partners is married to a third party.    [Back]

Note 174    Eg Spain’s autonomous community of Aragon: see Appendix C.    [Back]

Note 175    New Zealand, Australia’s Northern Territory, Queensland and Western Australia: see Appendix C.     [Back]

Note 176    See the comments of the Full Court of the Supreme Court of New South Wales in Green v Green (1989) 17 NSWLR 343.     [Back]

Note 177    Report on De Facto Relationships (1983) New South Wales Law Reform Commission Report No 36, para 17.14 and following; J Wade (ed), Australian De Facto Relationships Law, para 2-630.    [Back]

Note 178    Family Law Bill (Scotland) 2005, cl 18.     [Back]

Note 179    Scottish Parliament, Justice 1 Committee Official Report, Stage 1, Family Law (Scotland) Bill 2005, 7 July 2005, available at http://www.scottish.parliament.uk/business/committees/justice1/reports-05/j1r05-08-vol01-01.htm (last visited 4 May 2006).    [Back]

Note 180    Compare the comments of Stephenson LJ in Watson v Lucas [1980] 1 WLR 1493, 1499.    [Back]

Note 181    See para 9.145.    [Back]

Note 182    See Roberts v Roberts [1970] P 1, in which it was held that the respondent can assert moral as well as legal obligations to support others, including a new cohabiting partner and children of that relationship, as a relevant factor in ancillary relief proceedings; Delaney v Delaney [1990] 2 FLR 457.    [Back]

Note 183    Other jurisdictions have adopted various approaches to this problem. Several Australian states permit a cohabitant to take priority over a surviving spouse provided that relationship lasted for a minimum duration immediately before the death and the deceased had no children other than issue of that cohabiting relationship. Where there is more than one eligible cohabitant, the statutory legacy is shared equally. Contrast also existing English law on succession to tenancies in such cases, where the issue is made all the more acute by the fact that there is only one tenancy which cannot be shared, and so must be allocated to one or other surviving partner: see n 169.    [Back]

Note 184    Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989.    [Back]

Note 185    Inheritance (Provision for Family and Dependants) Act 1975, s 3(1).    [Back]

Note 186    Matrimonial Causes Act 1973, ss 11-13; see also Civil Partnership Act 2004, ss 49-50; and associated legislation prescribing the formalities for the creation of a valid marriage: Marriage Act 1949, as amended; Civil Partnership Act 2004, Part 2, Chapter 1.    [Back]

Note 187    That is, either party may apply during their joint lives to have the marriage annulled; if that is not done, the marriage will be treated as valid.    [Back]

Note 188    That is, legally not valid at all, and any person, even after both “spouses” are dead, may apply for a declaration that the marriage is void.    [Back]

Note 189    See Marriage Act 1949, ss 41-44.    [Back]

Note 190    Gandhi v Patel [2002] 1 FLR 603; A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6. Some cases may be saved by the presumption of valid marriage, but this doctrine is problematic, and both it and the concept of non-marriage have been criticised: R Probert, “When are we married? Void, non-existent and presumed marriages” (2002) 22 Legal Studies 398.    [Back]

Note 191    The Muslim Parliament of Great Britain is seeking to increase understanding within the Muslim community of the status of their marriage ceremonies as a matter of civil law: see http://www.muslimparliament.org.uk/marriage_guidelines.htm (last visited 4 May 2006).    [Back]

Note 192    Some of these non-marriages will be (at least potentially, or even actually) polygamous. It is not possible to contract a polygamous marriage for the purposes of civil law within England and Wales, though English law does recognise polygamous marriages contracted abroad by parties not then domiciled in the UK: see generally Lowe and Douglas, Bromley’s Family law (9th ed 1998) pp 50-52. These cases may involve relationships conducted within the same household (and so to the knowledge of all parties), rather than separately (and so with the possibility that one or more parties may be unaware that more than one relationship is being carried on). However, despite the parties’ awareness of the situation, it may be appropriate to consider whether financial relief on separation is required for such cases. See Re Sehota [1978] 3 All ER 385, where a claim under the Inheritance (Provision for Family and Dependants) Act 1975 was permitted by the second wife of the deceased, who had at some points during the marriage shared a household with the husband and the first wife.    [Back]

Note 193    Cohabitation as such is significantly less common within the Asian population of England and Wales than in other ethnic groups: Office for National Statistics, Census 2001, Table S106; K Kiernan and K Smith, “Unmarried parenthood: new insights from the Millennium Cohort Study (2003) 114 Population Trends 26, at 28-29 and table 5.    [Back]