cohabitation

Cohabitation
COHABITATION AS A SOCIAL PHENOMENON
Increase in the number of unmarried cohabiting couples.

Rationale:

 Ideological objection to marriage
 Cohabitation as a step towards marriage
 Rejection of marriage for pragmatic financial reasons
 Uneven couples (one wants to marry and one doesn’t)

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

 Providing economically for members
 Producing and raising children
 Providing security and care
 Sexual relationship

Advantage

 More inclusive taking into account family practices

Disadvantage

 More difficult to prove what people do (behind closed doors) than what their formal
relationship is.

THE LAW’S RESPONSE TO COHABITATION
Gammans v Ekins 1950- 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.

, Howes v Evenden 1953- cohabiting couples who have children together could be regarded as
families.

Dyson Holdings v Fox 1976- heterosexual couples without children might also be regarded as
families.

Fitzpatrick v Sterling Housing Association Ltd 1999- the notion of family is not restricted to people
linked by marriage or blood. 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
 The presence of a sexual relationship

Joram Developments Ltd v Sharratt 1979- living communally without having a romantic relationship.
Not members of a family as a degree of intimacy is required. Young man living with an elderly
couple, there was no romantic relationship but organised their lives together. No member of the
family.

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 a civil partnership: same status as opposite-sex unmarried couples

Statutory provisions providing guidance for a definition

 Inheritance (Provision For Family and Dependants) Act 1975

S.1: who can apply for financial provision from the deceased’s estate?

S.1(a): 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

S.1(b): …….as civil partners (above)

 Fatal Accidents Act 1976

S.1(3): dependant for the purposes of bringing a claim

S.1(3)(b): any person who was living with the deceased in the same household immediately before
the date of death and had been living with the deceased in the same household for at least two
years before that date and 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

S.62(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.