Despite the common belief that cohabiting couples are treated by law as if they are married, there are many significant differences between marriage and cohabitation, for example, parental responsibility. This is vested in both married parents, however according to the Children Act 1989, if the mother cohabits with the father but is not married to him, she has exclusive parental responsibility. However, due to Adoption and Children Act 2002, the unmarried father at the time of the child’s birth will have parental responsibility if his name is placed on the birth certificate. If it is not, the father is not automatically given parental responsibility, however he can acquire this in a number of ways, one being to marry the mother.
Another difference between marriage and cohabitation is the rule of home right. Married couples enjoy the Matrimonial Home Right under the Family Law Act 1996, however cohabiting couples do not receive this right. If a cohabitant wishes to remain in occupation they must achieve this by several means, such as by obtaining an occupation order against the other party. In order to apply for an occupation order the applicant must be an “associated person”, this does include cohabitants or ex-cohabitants, however they must apply through section 36 of the Family Law Act 1996. This section makes it more difficult for the cohabitant to attain an occupation order, which is certainly worrying when the occupation order is being used as a legal remedy to a victim of domestic violence. The rights regarding domestic violence apply to both married couples and cohabiting couples alike, under the Family Law Act 1996. Battered husbands, wives of cohabitants may seek protection in a number of ways, including occupation orders, as stated above, which entitle the applicant to remain in the matrimonial, or cohabited, home and restricts the abusive partner’s rights to occupy the house. Both married and cohabitants can also seek a non-molestation order, directing the abusive partner not to molest, annoy or use violence against them. If the abusive partner breaches either of these orders then they are guilty of a criminal offence under the Domestic Violence, Crime and Victims Act 2004. This is one right that does suggest that cohabiting couples are treated as if they were married, however not to have this protection from domestic violence in place purely because the couple are not married would be abysmal.
There are extensive differences between marriage and cohabitation regarding the breakdown of the relationship. The Matrimonial Causes Act 1973 ss.22-25 enforces property division on divorce for the breakdown of a marriage, however as cohabitants cannot divorce this is yet another right they are not entitled to. Cohabitation: The Financial Consequences of Relationship Breakdown Law Commission Report 307 (2007) addresses the issue of the insufficiency of the law regarding the breakdown of cohabiting couples, however this will be looked at in greater depth later on in the essay.
An imperative difference between marriage and cohabitation is the law regarding wills. Married couples are automatically given the right of intestacy and inheritance when their spouse dies, however mere cohabitants have no entitlement in the event of intestacy. This is demonstrated in the case of Saunders v Garrett [2005], in which Saunders applied under the Inheritance (Provisions for Families and Dependants) Act 1975 for reasonable provision to be made for him out of the estate of his same sex partner, however this application was refused. The unmarried couple can make appropriate provisions for each other by making wills, or it is possible in certain cases for the living cohabitant to benefit from the estate if the deceased leaves no relative within the statutory list. However these means of obtaining benefit from the death of a cohabitant are usually much more complicated than if the couple were married, and there is often a risk of the living cohabitant being left in a rather precarious position.
The rights and responsibilities stated above are only a few of the legal differences between married couples and cohabitants. There are many others relating to issues from the inability of cohabitants to apply for pension sharing, to prison visiting rights. These vast discrepancies clearly demonstrate how the law predominantly does not treat cohabiting couples as if they were married, despite the public opinion that “common law marriage” exists.
It is not entirely truthful to claim that ‘common law marriage’ no longer exists at all, as in the event that “government has collapsed and with it the administration of the marriage registry system in the aftermath of war” common law marriage is then valid. However, it hardly needs stating that this is fairly irrelevant to modern society. Much more importantly for the argument that marriage and cohabitation are similar is the way in which the law, and judges, have began to recognise that both heterosexual and homosexual cohabitation are increasing within society. They are therefore ever more “prepared in appropriate circumstances to apply the same principals to cohabitants as have traditionally been applied to married couples”. An example of this is the case of Barclays Bank plc v O’Brien [1994]. Also, whilst maintaining that marriage has priority in English Family Law, courts have recently moved in the direction of attempting to remedy injustice caused to women through a rigid application of the law. These injustices often occur due to the breakdown of a relationship, as the courts have very few powers when dealing with a cohabitant’s breakdown in comparison to a marital breakdown.
This issue has been addressed by the Law Commission Report 307 (2007), ‘Cohabitation: The Financial Consequences of Relationship Breakdown’, which carried out an in-depth investigation into the laws affecting cohabiting couples. This was due to the fact that cohabitation is growing and the laws overseeing it are “inadequate and give rise to unwelcome consequences”, added to this the issues discussed in the report are issues that are on the rise and will not go away. It states that the current law is “unfair, and fails to respond to the realities of family life and the problems of family breakdown, it is uncertain, illogical and procedurally complex”. The report makes recommendations to Parliament on certain aspects of the law relating to cohabitants, specifically the financial consequences of ending a relationship. It proposes a new statutory scheme designed specifically for cohabitants on separation which would give the courts more power in these circumstances, for example allowing the court to adjust a retained benefit, and the ability to issue more orders, such as orders for sale.
The scheme has a criterion determining who is eligible to be included in it, this comprises of couples who have a child, have lived together for a specified number of years, have not opted out, and the applicant must also have made qualifying contributions. These qualifying contributions must lead to the applicant suffering an economic disadvantage, or the respondent retaining a benefit, as in Stack v Dowden [2007]. The couple must also be in an intimate relationship, therefore cases such as Abbey National v Stringer [2006] would have fallen short of the criteria as it concerned a mother and son.
This reform proposal can be criticised for the way in which it deals with retaining benefit and economic disadvantage. According to the rules laid down by the proposal the applicant can only retrieve 50 per cent of their loss from the respondent. It is questionable how fair and valuable this really is, especially as it may provide cohabitee’s with false assurance. When this reform has been introduced into family law they will believe that they are in a much better position than they were previous to it, however if they are only able to recover 50 per cent of their loss then they are not in reality so safe.
With regard to cohabitation there is not just proposed statutory reform, case law is also developing in this are of law. The case of Stack v Dowden is a prime example of this, in which Dowden (D) bought a house with her savings, and then ten years later bought a new house for her and Stack (S) to live in, owned in joint names. When S left 9 years later he claimed half of the house and was awarded it. The Court of Appeal, however, awarded 65 per cent of the net proceeds to D and 35 per cent to S. The court stated that a joint ownership establishes a prima facie case of joint and equal beneficial interests until the contrary is shown. S appealed and his appeal was overturned by the House of Lords. The way in which the net proceeds were awarded in Stack v Dowden seems to suggest that the court was using its discretionary powers to promote fairness, as it would in a divorce settlement, however the House of Lords clearly stated that in these circumstances a court does not have discretionary powers to impose its own sense of fairness or justice in assessing the extent of the parties shares in the property.
Problems have arisen surrounding the current law on cohabitation which has occasionally led to the question of whether the human rights and civil liberties set out in the Human Rights Act (HRA), incorporating the European Convention of Human Rights (ECHR), are being infringed. The rights that are most frequently claimed to have been infringed due to cohabitation laws are Article 8, ‘The right to respect for private and family life’, Article 12, ‘The right to marry and found a family’, and Article 14, ‘Prohibition of discrimination’.
Several cases have dealt with these issues, including Wilkinson v Kitzinger [2006], in which Wilkinson claimed that the precluded recognition of a marriage between persons of the same sex, stated in the Matrimonial Causes Act 1973 (MCA), amounted to a violation of her rights under the HRA Article 8, 12 and 14. She claimed the court should recognise same sex marriages that have been lawfully effected in other jurisdictions, or common law should recognise her Canadian marriage, or the court should declare that the MCA is incompatible with the HRA. The claim was dismissed on the basis that this was “an area of social, political and religious controversy” that the European Court of Human Rights (ECtHR) did not want to interfere with.
In conclusion, it appears inevitable that the law will increasingly grant more rights to cohabiting couples. The law must adjust in order to maintain fairness and to accommodate a rapidly changing society, and this has been somewhat acknowledged in recent cohabitation case law. Same sex cohabiting couples are now given greater legal rights than ever before, if they enter into a Civil Partnership then in effect they have greater rights than heterosexual cohabiting couples, the rationale for which being that heterosexual couples can choose to marry.
Current reform proposals will dramatically change this area of law, giving cohabiting couples more rights and courts more power. It seems highly doubtful, however, that cohabitants will ever be given rights which equate to those of a married couple, or even close. To do this would be seen to be condoning cohabitation and disregarding the sanctity of marriage, and as marriage is an essentially religion institution, to do this would have major repercussions on any government that enforced it. Therefore the law is able to offer cohabitants enough rights to make court proceedings fair, however if they desperately seek the same rights as a married couple, they will have to marry.
Bibliography
Books
E. Martin and J. Law, A Dictionary of Law, 6th edition, (Oxford University Press, 2006)
Cretney, S. Family Law, 4th edition, (Sweet and Maxwell, 2000)
Black, J. Bridge, J. and Bond, T. A Practical Approach to Family Law, 7th edition, (Oxford University Press, 2004)
Lowe, N. and Douglas, G. Bromley’s Family Law, 9th edition, (Butterworth’s, 1998)
Standley, K. Family Law, 5th edition, (Palgrave Macmillan UK, 2006)
Journals
Choudhry, S. and Herring, J. Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention? 2006, Public Law
Park, A. Curtice, J. Thomson, K. Jarvis, L. and Bromley, C. British Social Attitudes: Public policy, social ties. The 18th Report (2001)
Dixon, M. (2007) The never-ending story - co-ownership after Stack v Dowden, Conveyancer and Property Lawyer, 456-461
Palowski, M. (2007) Beneficial Entitlement – No Longer Doing Justice? Conveyancer and Property Lawyer, 354-364
Family Law Act 1996 s.62 (1)(a)
Cohabitation: The Financial Consequences of Relationship Breakdown Law Commission Report 307 (2007) 1.6
Park, A. Curtice, J. Thomson, K. Jarvis, L. and Bromley, C. British Social Attitudes: Public policy, social ties. The 18th Report (2001)
Civil Partnership Act 2004)
Children Act 1989 s.2 (2)
Adoption and Children Act 2002 s.111
Children Act 1989 s.4 (1)(b)
Choudhry, S. and Herring, J. Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention? 2006, Public Law
Matrimonial Causes Act 1973 ss.22-25
Saunders v Garrett [2005] W.T.L.R. 749
Inheritance (Provision for Families and Dependants) Act 1975 s.1 (1A)
Cretney, S. Family Law, 4th edition (Sweet and Maxwell, 2000) 1-001
Cretney, S. Family Law, 4th edition (Sweet and Maxwell, 2000) I-016
Barclays Bank plc v O’Brien [1994] 1 A.C. 180
Cohabitation: The Financial Consequences of Relationship Breakdown Law Commission Report 307 (2007)
Cohabitation: The Financial Consequences of Relationship Breakdown Law Commission Report 307 (2007) 2.5
Stack v Dowden [2007] UKHL 17
Abbey National v Stringer [2006] EWCA Civ 338
Dixon, M. (2007) The never-ending story - co-ownership after Stack v Dowden, Conveyancer and Property Lawyer, 456-461
Palowski, M. (2007) Beneficial Entitlement – No Longer Doing Justice? Conveyancer and Property Lawyer, 354-364
Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
Wilkinson v Kitzinger [2006] EWHC 2002 (Fam)
Matrimonial Causes Act 1973 s.11 (c)