Family: L6 – Co-habitation
Cohabitation as a social phenomenon:
Increase in the number of unmarried cohabiting couples
Rationale? – why is there an increase?
- Ideological objection to marriage
- Cohabitation as a step towards marriage
- Rejection of marriage for pragmatic financial reasons
- Uneven couples
The Law’s Response to Cohabitation:
2 possible approaches to defining families:
1. Formalistic Approach:
- Objective criteria: marital bonds, children
- Advantage: clarity, ease of proof
- Disadvantage: excludes de facto relationships
2. Functional Approach:
- Functions performed by the members of the group
o providing economically for members;
o producing and raising children;
o providing security and care;
o sexual relationship
- Advantage: more inclusive - ‘family practices’
- Disadvantage: more difficult to prove what people do than what their formal
relationship is
Back in the 1950s:
- Gammans v Ekins [1950] 2 KB 328 CA – Rejection of de facto families - “to
say of two people masquerading as these two were as husband and wife, that
they were members of the same family, seems to be an abuse of the English
language” – shouldn’t be deemed as belonging to the same family.
Hawes v Evenden [1953] 1 WLR 1169 – established that Cohabiting couples with
children could be regarded as families
Dyson Holdings v Fox [1976] QB 503: Heterosexual couples without children
might also be regarded as families – heterosexual couples resembled husbands and
wifes.
Hallmarks of family life:
- Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705:
o Family not restricted to people linked by marriage or blood
o Features identifying families:
> a certain degree of mutual inter-dependence
> the sharing of lives, love and caring
> commitment and support
> a certain consistency in time and in depth – (‘a transient superficial
relationship’ would not qualify as family life’)
> the presence of a sexual relationship – important in the case of
cohabitation – without it resembles when friends live together
- Joram Developments Ltd v Sharratt [1979] 1 WLR 928: old woman and a
young man living communally, without having a romantic relationship
o Not members of a family – a degree of intimacy required
, Defining cohabitation for legal purposes:
Statutory provisions providing guidance for a definition
judicial discretion in assessing whether two persons are cohabitants
same-sex couples not in civil partnership:
- same status as opposite-sex unmarried couples
Statutory Provisions Providing Guidance for a definition:
Inheritance (Provision for Family and Dependants) Act 1975
- s1 – who can apply for financial provision from the deceased’s estate? (spouses
and children can)
o 1A someone who has lived in the same household as the deceased for at least two
years ending immediately before the date of the death as husband and wife
o 1B ……………. as civil partners
- Includes someone who lived as a civil partner of the deceased – amended after
the civil partnership act in 2004.
Fatal Accidents Act 1976
- s 1 (3) ‘dependant’ for the purposes of bringing a claim:
b) 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;
(iii) was living during the whole of that period as the husband or wife of the
deceased;
Part IV of the Family Law Act 1996
- Definition of ‘cohabitants’ for the purpose of obtaining protection against
domestic violence
- s62(1)(a): “two persons who, although not married to each other, are living together
as husband and wife or (if of the same sex) in an equivalent relationship”
- Amended < CPA 2004: “two persons who are neither married to each other nor
civil partners of each other but are living together as husband and wife or as if they
were civil partners”
- no reference to the 2 year like the other 2 - no minimum duration.
- Both previous acts (inheritance and fatal accidents) concern financial claims, this
is about domestic violence and the law wants to offer protection so there is no
minimum requirement.
Adoption and Children Act 2002:
- ‘a couple’ eligible to adopt includes:
o s144(4)(a) married couple
o s144(4)(b): “two people (whether of different sexes or the same sex) living
as partners in an enduring family relationship”
> no time limit, but the word ‘enduring’ suggests that the relationship
should be stable and consistent.
Judicial Discretion in assessing whether 2 persons are cohabitants:
Kimber v Kimber [2000] 1 FLR 33: ex-husband had been asked to pay
maintenance for ex-wife until she remarried or cohabited. He stopped payments
Cohabitation as a social phenomenon:
Increase in the number of unmarried cohabiting couples
Rationale? – why is there an increase?
- Ideological objection to marriage
- Cohabitation as a step towards marriage
- Rejection of marriage for pragmatic financial reasons
- Uneven couples
The Law’s Response to Cohabitation:
2 possible approaches to defining families:
1. Formalistic Approach:
- Objective criteria: marital bonds, children
- Advantage: clarity, ease of proof
- Disadvantage: excludes de facto relationships
2. Functional Approach:
- Functions performed by the members of the group
o providing economically for members;
o producing and raising children;
o providing security and care;
o sexual relationship
- Advantage: more inclusive - ‘family practices’
- Disadvantage: more difficult to prove what people do than what their formal
relationship is
Back in the 1950s:
- Gammans v Ekins [1950] 2 KB 328 CA – Rejection of de facto families - “to
say of two people masquerading as these two were as husband and wife, that
they were members of the same family, seems to be an abuse of the English
language” – shouldn’t be deemed as belonging to the same family.
Hawes v Evenden [1953] 1 WLR 1169 – established that Cohabiting couples with
children could be regarded as families
Dyson Holdings v Fox [1976] QB 503: Heterosexual couples without children
might also be regarded as families – heterosexual couples resembled husbands and
wifes.
Hallmarks of family life:
- Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705:
o Family not restricted to people linked by marriage or blood
o Features identifying families:
> a certain degree of mutual inter-dependence
> the sharing of lives, love and caring
> commitment and support
> a certain consistency in time and in depth – (‘a transient superficial
relationship’ would not qualify as family life’)
> the presence of a sexual relationship – important in the case of
cohabitation – without it resembles when friends live together
- Joram Developments Ltd v Sharratt [1979] 1 WLR 928: old woman and a
young man living communally, without having a romantic relationship
o Not members of a family – a degree of intimacy required
, Defining cohabitation for legal purposes:
Statutory provisions providing guidance for a definition
judicial discretion in assessing whether two persons are cohabitants
same-sex couples not in civil partnership:
- same status as opposite-sex unmarried couples
Statutory Provisions Providing Guidance for a definition:
Inheritance (Provision for Family and Dependants) Act 1975
- s1 – who can apply for financial provision from the deceased’s estate? (spouses
and children can)
o 1A someone who has lived in the same household as the deceased for at least two
years ending immediately before the date of the death as husband and wife
o 1B ……………. as civil partners
- Includes someone who lived as a civil partner of the deceased – amended after
the civil partnership act in 2004.
Fatal Accidents Act 1976
- s 1 (3) ‘dependant’ for the purposes of bringing a claim:
b) 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;
(iii) was living during the whole of that period as the husband or wife of the
deceased;
Part IV of the Family Law Act 1996
- Definition of ‘cohabitants’ for the purpose of obtaining protection against
domestic violence
- s62(1)(a): “two persons who, although not married to each other, are living together
as husband and wife or (if of the same sex) in an equivalent relationship”
- Amended < CPA 2004: “two persons who are neither married to each other nor
civil partners of each other but are living together as husband and wife or as if they
were civil partners”
- no reference to the 2 year like the other 2 - no minimum duration.
- Both previous acts (inheritance and fatal accidents) concern financial claims, this
is about domestic violence and the law wants to offer protection so there is no
minimum requirement.
Adoption and Children Act 2002:
- ‘a couple’ eligible to adopt includes:
o s144(4)(a) married couple
o s144(4)(b): “two people (whether of different sexes or the same sex) living
as partners in an enduring family relationship”
> no time limit, but the word ‘enduring’ suggests that the relationship
should be stable and consistent.
Judicial Discretion in assessing whether 2 persons are cohabitants:
Kimber v Kimber [2000] 1 FLR 33: ex-husband had been asked to pay
maintenance for ex-wife until she remarried or cohabited. He stopped payments
