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Family Redefinition under Part III of the Family Law Bill 1996
Craig Lind
Lecturer in LawUniversity of Wales, Aberystwyth.
and
Anne Barlow
Lecturer in LawUniversity of Wales, Aberystwyth.
Copyright © 1996 Craig Lind and Anne Barlow.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
Summary
Contents
Introduction
The Family Homes and Domestic Violence Bill 1995 was withdrawn by the government in October 1995 because of pressure from Conservative back bench Members of Parliament (prompted by the Daily Mail, 23 October 1995) concerned that privileges reserved to married couples were being extended to unmarried couples. When the Lord Chancellor yielded to the pressure he vowed that he would not abandon the legislation. He was adamant that current law on domestic violence and occupation of a family home was long overdue for reform and rationalisation. He promised revised legislation before long.True to his word Lord Mackay's first Bill presented to the House of Lords in the 1995/6 parliamentary session was the Family Law Bill. Whilst originally intended only to radically overhaul the law of divorce, in Part III the Bill has been used as the vehicle to reintroduce (with minor alterations) the amendments he intended for the law on family homes and domestic violence. Thus not only does the proposed legislation remove fault almost entirely from formal divorce, in the field of domestic violence law, it also extends the categories of 'family' for jurisdictional purposes. While both reforms are primarily aimed at giving effect to recommendations made by the Law Commission (Law Com No 192 and 207) their ambit is guaranteed to provoke controversy especially amongst conservative thinkers whose fears have long been that the traditional family is under legal attack.
In this article we intend to examine Part III of the Bill focusing on its effect on the rights of both homosexual and unmarried heterosexual cohabitants. While the proposed reform of law in respect of the latter has been responsible for much of the controversy that has surrounded this piece of legislation, the creation of family law remedies for the former may, in the end, be the more ideologically significant reform. In broadening the application of remedies for domestic violence and the resolution of family homes disputes to unmarried heterosexual couples family law is clearly expanding. But in extending some of those remedies to lesbian and gay couples, and others sharing a household, the jurisprudential scope of family law is beginning to be radically revised. And yet the Bill is not uncompromising in its progressive trend. It still harbours a tendency to cling to a tradition of family law that is exclusively marriage centred and heterosexual, and insists upon cohabitation as the central focus of family relationships. This ideological allegiance, it is submitted, prevents it from offering a rational and cohesive set of solutions to the domestic violence and property disputes of all 'romantic' and cohabiting relationships (whether or not sexual).
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Reconstructing the Family
The family idealised in film, fiction and even in law is not the family that prevails in our society (O'Donovan 1993, ch 3; Bainham 1995; Weeks 1991, 134; Esseks 1990, p 192; Coote et al 1994). Indeed empirical research on the family supports the proposition that even within the dominant realm of heterosexual partnerships our society is undergoing a period of radical family restructuring; the traditional married family is visibly in decline. The number of marriages in the UK is falling dramatically: between 1971 and 1991 it fell by 24% (Social Trends 1995, p 36). And even then, more than one out of every three marriages ends in divorce. In contrast, heterosexual cohabitation is on the increase. Almost one third of non-married men and women in their mid-twenties to mid-thirties now choose to cohabit (compared with less than 10% in 1979) (1993 General Household Survey 1995, p 6). A significant and rising proportion of children are no longer born or raised in married families; in 1993 32% of all children born were born to unmarried parents (1993 General Household Survey 1995, p 29) and almost one in five mothers with dependent children were lone mothers (1993 General Household Survey 1995, p 34). While there is anecdotal evidence that lesbian and gay cohabitation is increasing, and that their lives are conducted on lines similar to heterosexual cohabitation and even marriage, no empirical data are routinely kept on these relationships.
Thus, while some married couples do have children and do sometimes live together until one of them dies, it is not uncommon for the marriage to end in divorce. Nor is it unusual for couples never to marry, or never to have children. There are also those who have children without involving themselves in a long term, monogamous, relationship. And those whose relationships are with members of their own sex. Some relationships are asexual. And some households consist of more than two adults, who may or may not share sexual intimacy. The variety is almost infinite. The most that can be said with any certainty, in an attempt to define the family, is that it usually involves significant emotional and material relationships between people (whether adults or children) born of a genetic, social, legal or sexual connection. While there may be some definitions which are more widely used than others, and while particular conceptions are applicable in particular contexts, it is clear that 'family' means many things to many people, and that the social expectations of families cannot be regarded as anything like as uniform as some would have us believe.
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Law and the Social Family
This diversity in family reality has gradually entered the culture of legal regulation. The focus of family law has been shifting and its reform in the last two or three decades has seen its overwhelming concentration on the problems of married couples diminish in favour of greater recognition of the need to regulate the problems of other domestic relationships (principally unmarried, heterosexual cohabitation). The altering social attitude towards these relationships, and towards single parent families, and even homosexual families, required (and continues to require) a response that seriously addresses the real and parallel problems that all these relationships produce. While that may mean that family law has become, in the words of some authors, 'domestic relations law' (Wadlington 1990) there seems to be no need for an alteration in the rubric describing this area of law if it is accepted that the family itself is merely undergoing a process of redefinition.
That this broader ethic should be (and has, to some extent, been) adopted does not necessarily mean that society should stop privileging the marriage state.(1) But it does dictate that the law should acknowledge the existence and at least some of the needs of other families in various important spheres of their lives. This has occurred in a number of piecemeal legal developments in the last few decades.
In property disputes between cohabitants the courts acknowledged the real parallels between unmarried heterosexual cohabitation and marriage. Indeed, Lord Denning in Bernard v Josephs [1982] 3 All ER 162 at 163 said:
"In my opinion in ascertaining the respective shares, the court should normally apply the same considerations to couples living together (as if married) as they do to couples who are truly married."
However, after the Denning era the courts retreated from this liberal position despite the increasing numbers of unmarried cohabitants (Burns v Burns [1984] Ch 317, Thomas v Fuller-Brown [1988] FLR 237 CA, Rossett v Lloyds Bank PLC [1990] 2 WLR 867, cf. Midland Bank v Cook [1995] 4 All ER 562). Whereas they had been prepared to imply resulting and constructive trusts to achieve fairer settlements of disputes, they began to adhere to a stricter application of property law. They would only use their equitable jurisdiction to allow cohabitants to assert rights in the property of their partners where a common intention could be inferred that each party should have an interest in the property. This inconsistency led to the Law Commission's current review of the property rights of cohabitants (Harpum 1995).
There have also been a number of legislative developments which have seen unmarried cohabitants emerge as a recognised, although inferior, form of family in law. In the case of social security law, it did not escaped the notice of the legislature that to ignore the existence of unmarried cohabiting couples would be to disadvantage married couples dependent on means-tested state benefits. The latter's entitlement (as a couple) is less than that of two unconnected individuals. Thus very early (Supplementary Benefits Act 1966) the introduction of the much hated ‘cohabitation rule’ ensured that no such advantage was gained by unmarried cohabitants (Social Security and Contributions to Benefits Act 1990 (SSCBA 1990) ss 136(1) and 137(1)). Conversely, where non-means tested contributory benefits are concerned, unmarried cohabitants are usually denied an adult dependent’s allowance for their partners where married claimants would receive one, however good their national insurance contribution record (see, for example, SSCBA 1990 ss 82-4). Furthermore, the married couples’ allowance providing greater personal relief against income tax does not extend to those living together as husband and wife however stable and long- standing their relationship (ICTA 1988 s 257A, see Rignell (Inspector of Taxes) v Andrews [1990] STC 410). Yet there was no hesitation in making heterosexual cohabitants liable for their partners' council tax (Local Government Finance Act 1992, s 9). It is noteworthy that lesbian and gay cohabiting couples are not covered by the 'cohabitation rule' or the rule making cohabitants liable for their partners' council tax. Thus, they enjoy a rare advantage in law because it ignores their shared existence and treats them as unconnected individuals merely sharing accommodation.
Another notable recognition of the family status of unmarried cohabitants came in the guise of the extension to them of the right to succeed to public and private sector tenancies on the death of their partners (Housing Act 1985, s 87 with s 113(1) & (2) ; Housing Act 1988 (HA 1988), s 17(4); Rent Act 1977, sch 1 as amended by HA 1988 sch 4, part I). This time the courts excluded lesbian and gay cohabitants from the ambit of this rule (Harrogate Borough Council v Simpson [1986] 2 FLR 91).
Two further statutes have focused on the length of relationship to confer marriage-like benefits on unmarried heterosexual cohabitants. Section 1(3) of the Fatal Accidents Act 1976 extended to them the right to bring a dependent's action where they had cohabited for at least two years and the applicant had been financially dependent upon the deceased. Most recently cohabitants of two years standing have been given improved succession rights under section 2 of the Law Reform (Succession) Act 1995. These people are now recognised as a separate category of eligible applicants under sections 1A and 2A of the Inheritance (Provision for Family and Dependants) Act 1975 entitled to make a claim for financial provision against a deceased’s estate.(2)
Finally, the need for legal protection from domestic violence for unmarried cohabitants was acknowledged by legislation passed in 1976. Rushed through Parliament in the wake of revelations in Erin Pizzey's Scream Quietly or the Neighbours will Hear about the shocking effects of violence in the home, the Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) gave cohabitants protection from their violent partners (s 1(2)). Perhaps the hurry to pass this Act was responsible both for the incomplete protection it offered victims of domestic violence, and for the inconsistency of the remedies available in different courts. Its shortcomings were the subject of judicial comment (see, for example, Davis v Johnson [1979] AC 264, per Lord Kilbrandon at p 338) and, as long ago as 1992, the Law Commission described the existing remedies as "complex, confusing and lack[ing] integration" (Law Com No 207, para 1.2) and called for their reform.
That reform was finally introduce in the Family Homes and Domestic Violence Bill 1995 which sought to codify domestic violence law in a more consistent and cohesive statutory framework. Thus protection against molestation was made almost universal and the courts discretion to settle occupation of the family home was extended and rationalised. Moreover, the courts were given jurisdiction to make transfer of tenancy orders between unmarried heterosexual cohabitants on relationship breakdown where previously there had been no remedy. In addition it sought to extend to these couples the procedures available to spouses and engaged couples under section 17 of the Married Women's Property Act 1882 (MWPA 1882) for resolving property disputes. Whilst most of these reforms have survived largely intact, in the redraft the latter purely procedural remedy has, inexplicably, disappeared. As John Eekelaar has written (Eekelaar 1996, at p 48.):
"It is hard to see how maintaining procedures which benefit only lawyers, even those of the Chancery Bar, help the institution of marriage, but political compromise seldom produces rational results."
Ironically, despite the fact that the bill extended protection against domestic violence to lesbian and gay cohabitants, and gave the courts a measure of discretion to order occupation of their family homes, this did not feature in the moral controversy which led to its demise. Consequently these reforms have remained intact in the new Bill.
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Unmarried cohabitants under the Family Law Bill 1996
Part III of the 1996 Bill for the first time provides a uniform code of domestic violence remedies available, in the main, in all courts with jurisdiction in family proceedings (clause 52). It is much more victim and child-centred, concentrating on the harm being suffered within the household, and the remedies available to victims. In this respect it removes a large measure of the discrimination suffered by heterosexual cohabitants, and for the first time, introduces a lesser measure of protection for lesbian and gay cohabitants.
The Bill will repeal and replace the whole of the DVMPA 1976 together with the relevant sections (ss 16-18, s 28(2) and para 53 of Sch 2) of the Domestic Proceedings and Magistrates Courts Act 1978. It will introduce two types of order: (i) non- molestation orders (clause 37), and (ii) occupation orders (clause 34), available to newly defined classes of applicants (clauses 28, and 30 - 33).
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i. Non-molestation orders
In line with the Law Commission's recommendations, the term 'non-molestation order' has been retained in clause 37 of the Bill which governs the making of these orders. 'Molestation' is not expressly defined. The omission is deliberate, designed to ensure that the current level of protection is not reduced.(3)
The criteria for granting non-molestation orders also follow the Law Commission's recommendation that they be broad rather than specific. Consequently, clause 37(5) provides that in deciding whether to exercise its powers under the clause and, if so, in what manner, the court shall have regard to all the circumstances including "the need to secure the health, safety and well-being" of the applicant and any relevant child. The term 'well-being', it is submitted, is sufficiently wide to ensure that courts do not feel restricted to making orders only in cases where violence or a threat of violence can be proven.
The range of potential applicants under the Bill is far wider than those encompassed within the 1976 Act. This is perhaps the most radical of the Bill's reforms. Those entitled to apply for non-molestation orders must be "associated" with the respondent. "Associated" persons are defined by clause 56(3) to include a wide variety of different people. Most obviously it covers spouses and former spouses, and heterosexual cohabitants and former cohabitants (clause 56(1)(a)). Perhaps most radically, it includes those living or having lived in the same household otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder. Significantly, this includes lesbian and gay cohabitants.(4) It should be noted, however, that the Bill prescribes no minimum period of cohabitation or of 'living together in the same household' before a cohabitant or associated person becomes an eligible applicant under clause 37.
Whilst this definition includes a far wider range of applicant than under the current law, one important vulnerable group have been denied protection. The Law Commission recommended (Law Com No 207 para 3.24) that persons in a 'romantic' relationship (such as boyfriend/girlfriend) who had had a sexual relationship (whether or not involving sexual intercourse), should have a remedy against molestation. However, these people do not fall within the definition of "associated" persons in the Bill and will not, therefore, be able to avail themselves of the protection it provides. This leaves those who have had a relationship but who have never cohabited, agreed to marry, or had a child together (including a couple who are expecting a child) without a domestic violence remedy in family law.
From the perspective of lesbian and gay couples the proposed legislation represents a significant step forward. Although the Law Commission did not feel able to include them within the definition of "cohabitants" and, indeed, specifically excluded them, they do fall within the more general category of those who have lived together in the same household other than on a commercial basis (clause 56(3)(c)). The Law Commission foresaw (Law Com No 207 para 3.21) that the test for determining whether people are "living together in the same household" would be that developed in the matrimonial law context to establish the degree of community of life between them (see, for example, Fuller v Fuller [1972] 2 All ER 650 and Mouncer v Mouncer [1972] 1 WLR 321). Although there may be difficulties in interpretation of the definition of the 'same household' with regard to persons who have not had a sexual relationship (such as friends who are also flatsharers), it is submitted that these problems would not present themselves in the case of lesbian and gay cohabitants. Whilst all the authorities relate to married or heterosexual cohabiting couples, the existence of an intimate relationship together with shared meals and domestic arrangements should bring them within the definition. Indeed, the Law Commission report specifically refers to homosexual couples as falling within this broad family relationship (para. 3.19).
In addition several significant improvements are in evidence in clause 37. Former cohabitants and former spouses are included in the Bill where they were previously largely unprotected. Moreover, former 'associated persons' will also be eligible to apply for non-molestation orders. It will not be necessary for those who seek non- molestation remedies to remain in the violent home.
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ii. Occupation Orders
Part III of the 1996 Bill replaces both ouster orders under the DVMPA 1976 and the Matrimonial Homes Act 1983 and exclusion orders under the DPMCA 1978 with new forms of orders to be known as "occupation orders." These are detailed in clauses 28 and 30 to 33 of the Bill. The aim of this part of the proposed statute is to harmonise and improve what had become a confusion of remedies available under the 1976, 1978 and 1983 Acts for the resolution of disputes about rights of occupation of the family home in domestic violence situations. It also contains the more marked distinction between the rights of spouses and cohabitants in this regard. The most significant distinction, however, is drawn between 'entitled' and 'non-entitled' applicants. Although both will, for the most part, be able to obtain occupation orders, their scope and the ability to seek them will be more restricted in the case of non-entitled applicants.
The fact that cohabitants with no right as a matter of property law to occupy the family home would be able to obtain occupation orders excluding their partners in whom the legal right to occupy vested, provoked the controversy which resulted in the ultimate withdrawal of the 1995 Bill. That this was already a possibility in the same exceptional (domestic violence) context under section 1(1)(c) DVMPA 1976 as confirmed some fifteen years earlier in the leading case of Davis v Johnson [1979] AC 264 did nothing to prevent those opposing the Bill from claiming that this amounted to a new and unacceptable assault on marriage and property rights.
Notwithstanding this, Part III of the 1996 Bill has retained the majority of these reforms completely intact, whilst attempting to satisfy its conservative critics by focusing the court's attention when deciding whether to make an occupation order on the fact that the parties have not made the same commitment as married couples (Clause 36). While the bill treats heterosexual cohabitants on an almost equal footing with spouses, it distinguishes them from homosexual cohabitants who are only able to apply for an occupation order if they can show their own legal entitlement to occupy the property (Clause 28).
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a. Unmarried Entitled Applicants
To be able to apply for a clause 28 occupation order, an applicant must be able to show two things: firstly, that they have an entitlement to occupy the accommodation and secondly, that the accommodation either was or was intended to be their home jointly with a person with whom they are associated. Clause 28(1) defines entitlement to occupy, either through having a legal or beneficial estate or interest, or by virtue of contractual or statutory rights (including "matrimonial homes rights" defined by clause 25 for spouses). Therefore both heterosexual and lesbian and gay cohabitants who are sole or joint owners, or tenants (whether contractual or statutory) in the rented sector may apply for an order against their partner or former partner. This is because an order can be sought against any person with whom the applicant is associated within the meaning of clause 56(3).
The clause 28 order is an improvement upon the protection currently available to cohabitants and will entitle an applicant to secure her/his occupation of their home (and even its precincts) against intrusion by the respondent for a specified period, or even indefinitely (clause 28(10)). It will give all family courts greater flexibility in terms of the type of orders that can be made and will extend to all entitled applicants remedies that are currently only available to spouses under the MHA 1983. In particular the bill will enable courts to attach conditions relating to matters such as maintenance of the property, taking care of furniture and the payment of rent, mortgage or other outgoings to any clause 28 order (clause 35). Thus unmarried entitled cohabitants, whether or not heterosexual, will make significant advances in terms of the protection available.
A major distinction between occupation orders and ouster injunctions under the DVMPA 1976 is that a violent situation will not be a necessary prerequisite to the making of the order. In deciding whether or not to make an order, and if so what order to make, the courts will have to consider all the circumstances, including the parties' financial resources, their housing needs and resources, and the effects of any order on their (or any relevant child's) health, safety, or well-being (clause 28(6)). Furthermore the court will be compelled to make an order if one party or any child is likely to suffer significant harm if no order is made. This can only be avoided in a situation where it can be shown that as great or greater harm is likely to be suffered by the respondent or child if the order in favour of the applicant is made (the 'balance of harm' test) (clause 28(7)). However, in deciding whether or not to exercise its powers under clause 28 in respect of heterosexual cohabitants the court will have to have regard to the fact that the parties have not "given each other the commitment involved in marriage" (clause 36). However, even then, where at least one of the parties (or their children) is likely to suffer significant harm the balance of harm test will prevail.
Because the Bill defines cohabitants heterosexually, and because clause 36 applies to cohabitants only, the courts will not be required to make the same assumption about commitment when they are dealing with lesbian and gay cohabitants. Ironically, this seems to make the criteria applicable to these couples, who are legally unable to marry (Matrimonial Causes Act 1973, s 11), more closely analogous to spouses than to unmarried heterosexual cohabitants.
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b. Unmarried, Non-entitled Applicants
To be able to apply for a clause 31 order giving them a protected right to occupy a family home, an applicant must be a heterosexual cohabitant (or former cohabitant) and be able to show three things: firstly, that their partner has a right to occupy the home;(5) secondly, that they have no such entitlement, and thirdly, that their accommodation either was or was intended to be their mutual home.
The nature of this occupation order is the same as the order granted under clause 28 except that its maximum duration is one year (clause 31(10)). But the criteria governing the discretion of the courts in deciding whether or not to make the order have been weakened in the 1996 version of the reforms. While all the circumstances remain relevant, and while the courts must consider the parties' financial resources, their housing needs and resources, and the effects of any order on their (or any relevant child's) health, safety, or well-being they will also be obliged to consider the nature of the parties' relationship, the length of cohabitation, and whether or not there are children (clause 28(6)). Furthermore while the court must consider the balance of harm, in contrast to the position under clause 28, it will not be obliged to make an order in favour of an applicant suffering greater harm (clause 31(7) & (8)). The courts must also have regard to the fact that the parties have not 'given each other the commitment involved in marriage' (clause 36).
As in orders under clause 28 the court may, in making an order under clause 31, attach conditions relating to matters such as maintenance of the property, taking care of furniture and the payment of rent, mortgage or other outgoings (clause 35). Whereas the House of Lords had decided in Davis v Johnson [1979] AC 264 that cohabitants who had no estate or interest in the family home were able to obtain ouster orders against their partners under the DVMPA 1976, their legal position as against third parties remained precarious. Difficulties arose as a result of the court's inability under that statute to make orders, for example, with respect to payment of outgoings in respect of the property or removal of furniture. Thus the 1996 Bill considerably enhances their position. Indeed, given that a violent situation will not be a prerequisite for the making of an occupation order under clause 31(6), it may be a useful tool for deserted non-entitled former cohabitants to secure a legal status with third parties such as a mortgagee or landlord.
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iii. Transfer of Tenancies
In current law unmarried cohabitants who have no children of their relationship (5) and whose home is rented have no means of resolving transfer of tenancy disputes when their relationship ends. Thus a joint tenancy cannot be transferred to one party, and any tenancy in the name of one cohabitant only cannot be transferred to the other. Where a relationship is disrupted by violence, or is breaking down for any other reason, the courts are powerless to provide a final remedy to the parties in dispute concerning their tenancy rights. The unresolved deadlock that this lacuna in the law permits was the subject of critical commentary by the Law Commission (Law Com No 207 Pt VI). It felt that the problem had to be resolved by the enactment of legislation which would give the courts a discretionary remedy to transfer tenancies between former cohabitants whose family home comprised rented accommodation. To provide no remedy at all was unacceptable.
Schedule 7 of the 1996 Bill (to be enacted by clause 48) provides the recommended remedy. It will empower the courts to exercise a discretion to reallocate tenancies. In re-enacting schedule 1 of the MHA 1983 it provides for the transfer of tenancies between spouses and then goes on to create a mechanism for the transfer of the tenancies of unmarried heterosexual family homes when the couple cease living together as husband and wife. The criteria for the exercise of the discretion in respect of joint tenants are the same as those applicable to 'entitled' applicants seeking an occupation order under clause 28 (clause 28(6)(a) - (c)). And in the case of a sole tenancy vesting in the respondent the criteria are the same as those applicable to non- entitled occupation order applicants under clause 31 (clause 31(5)(d) - (g)). When making an order under the schedule the court may direct the party to whom the tenancy is transferred to make a compensatory payment to the other party, having had regard to the financial loss of the transferor and the financial needs, resources and obligations of both of the parties (Part III of Sch 7).
What is disconcerting about the schedule is that it is inapplicable to homosexual cohabitants. This leaves them without the remedy the Law Commission regarded as essential for unmarried cohabitants in their position. Lesbian and gay couples whose relationships end will continue to have no recourse to the courts to resolve their joint tenancy disputes. And non-tenant lesbian or gay partners will go on having no legal protection at all. Where the relationship is being brought to an end by the violence of a legal tenant that violence is likely to decide the future occupation of the family home, leaving the most vulnerable party least protected. Where the violent partner is a sole- tenants the law bolsters her/his physical power by enforcing it with a property right. It is anathema that anyone should be capable of being evicted from her/his habitual home, without recourse to the courts, by the brutality of anyone else, least of all an unmarried partner. This permits those in close personal relationships to do something which the criminal law prevents landlords from doing.
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Conclusion
For reasons of public policy and political expediency the government has, in this Bill, created three layers of family definition. It has reinforced the distinction between married and unmarried heterosexual couples in a number of ways. It creates a formal commitment test as a factor to be considered by courts being asked to make occupation orders for unmarried cohabitants (clause 36). Moreover, the revised Bill amended its 1995 predecessor by dividing the two clauses dealing with unentitled applicants for occupation orders into four: two relevant to spouses and two separate clauses relevant to cohabitants (clauses 9 and 10 of the 1995 Bill became clauses 30 - 33 of the 1996 Bill). Some minor distinctions between the proposed law relating to married and unmarried couples were introduced into these revised versions. Thus occupation orders for unentitled cohabitants can never be indefinite, while they can be for former spouses, and unentitled spouses. Finally, the government in the 1996 version refused to extend the procedural advantages to be derived from the application of the MWPA 1882 to unmarried cohabitants. Thus a number of immaterial considerations have been introduced, and an effective mechanism for the pragmatic and effective resolution of disputes has been sacrificed for the sake of the symbolic superiority of the married state.
The Bill goes on to establish its third tier of family regulation by distinguishing between unmarried cohabitation and a variety of other domestic relationships classified under the heading of 'associated persons'. These include almost all those who live together in domestic (rather than commercial) relationships.
Most significantly the Bill will, if enacted, represent the first legal acknowledgment of the family status of lesbian and gay couples. But instead of grouping together like relationships, the Bill severs homosexual cohabiting relationships from heterosexual cohabiting relationships. This separation must be artificial when one considers the similarity of the practical and legal problems to which they are likely to give rise. Where two women or two men who have a 'romantic' relationship share a household they do so in exactly the same circumstances as cohabiting, or even marrying, heterosexual couples. They will generally be mutually dependent and will often make joint contributions to their mutual home. In their social context their interdependence is observable. They socialise together, and will generally be treated as a couple by their friends and families. They rely on one another when they are ill. They may even raise their own children. Clearly their emotional ties and their domestic lives are no different from the emotional ties and domestic lives of heterosexual cohabitants. In the context of domestic violence, neither its incidence nor the problems it creates for its victims are different (Taylor and Chandler 1995). For that reason its legal control ought to be no different. And yet it is. Once again the government has sacrificed legal coherence in the resolution of parallel disputes for the sake of maintaining the symbolic and moral superiority of heterosexual relationships over homosexual relationships.
While the more comprehensive extension of remedies for domestic violence to unmarried cohabitants, and to homosexual families and other associated persons in this Bill will be a remarkable step for family definition in itself, the tiered protection available under the Bill is difficult to rationalise when its protective context is considered. Although the application of the property provisions are not explicitly linked to domestic violence their proposed enactment in that part of a Bill which sets out to resolve the anomalies of domestic violence legislation indicates that they are perceived to be relevant in that context. Thus, occupation orders, while not reserved to the victims of molestation, are likely to be sought to bolster non-molestation orders. That harm (and the balance of harm test) are important criteria when courts decide whether or not to make occupation orders must, it is submitted, indicate the deep concern of the Bill to protect from violence those who share domestic premises. In these circumstances it seems perverse that a tiered approach has been adopted to provide different levels of personal security to victims while protecting the property interests of some (lower tier) violent partners in domestic relationships. In order to maintain the distinctions between married and unmarried cohabitation, and between heterosexual and homosexual (and merely friendly) cohabitation the personal security of those involved the 'lesser' relationships has been sacrificed in this Bill. Moreover, this tiered approach is not all encompassing. There are significant omissions. Thus those involved in uncohabiting 'romantic' relationships, for example, remain unprotected. None of the remedies provided for in the Bill (contrary to the Law Commission's recommendations (para 3.26)) are available to them. This denies the reality of the parallel problems to which all 'romantic' relationships are susceptible.
In contemporary Britain (as in many other, particularly western, jurisdictions) the parameters of the legal family are being reconsidered. Where a national society demonstrates the kind of social and cultural diversity that is evidenced in the United Kingdom the imposition of a limited but universally applicable family definition on a diffuse population cannot continue to satisfy the expectations and aspirations of all the citizens of this nation. Already British law has begun to distance itself from particular moral and social traditions in both its definitions of family relationships and in its expectations of them. What seems most necessary in the realms of legal discourse on the family is the recognition that the need for effective legal remedies is more important than the moral status of particular relationships. In no context is this more obvious or more urgent than in the context of family violence.
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Harpum, C (1995) 'Cohabitation Consultation' Family Law 657.
Herman, D (1990) 'Are We Family?: Lesbian Rights and Women's Liberation' 28 Osgoode Hall Law Journal 789.
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Rubin, G S (1993) 'Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality' in Abelove, H, Barale, M A, Halperin, D M, The Lesbian and Gay Studies Reader (New York: Routledge).
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Footnotes
(1) Of course, there are many (particularly feminist) writers who question the privileges that are associated with marriage: see Herman 1990; Rubin 1993; and Ettelbrick 1993. Back to text
(2) Previously cohabitants could only claim if they could show dependancy and this is still the case for those who cannot show two years cohabitation: see Inheritance (Provision for Family and Dependants) Act 1975 s1(1)(e). Back to text
(3) Thus authorities such as Vaughan v Vaughan [1973] 1 WLR 1159, Horner v Horner [1982] Fam 90 and Jones v Walton [1990]1 FLR 350 (all examples of non- violent behaviour amounting to molestation) will remain good law. Clause 37(6) also makes it clear that molestation of both a general and a specific nature may be prohibited by an order. Back to text
(4) The other associated persons are:
- those falling within a defined group of close relatives;
- those who have at any time agreed to marry each other, parents with a child of
- the relationship or a child in respect of whom they both have or have had parental responsibility;
- those who are both parties to the same family proceedings other than proceedings brought under Part III of the 1996 Bill: clause 56(3).
- those who have at any time agreed to marry each other, parents with a child of
(5) In the rare circumstance where neither cohabitant has a right to occupy the home, clause 33 provides for an occupation order (on the same criteria as those enumerated in clause 31) regulating only the right to occupy the home inter se. The order cannot affect third party rights. Back to text
(6) Those who have 'natural' children of their relationship can apply for a transfer of property order (which includes transfers of tenancies: K v K [1992] 2 All ER 727) under Sch. 1 of the Children Act 1989 for the benefit of the children. Where the child is a child of only one of them the schedule cannot be used: J v J [1993] 2 FLR 56. Thus lesbian or gay couples are definitively excluded. Back to text