Revision notes on cohabitation in relation to Family Law.
Includes definitions/statistics, key statutes/cases and an explanation of trusts.
These notes were used for final year LLB Law studies in which I achieved a high 2:1.
Cohabitation
General
• ONS 2017 – fastest growing family type in UK from 1996-2017 was cohabiting
couples, from 1.5m to 3.3m families
• Cohabitants are generally at a disadvantage compared to spouses – they
cannot claim maintenance or property adjustment orders on divorce, they do
not automatically inherit a partner’s property, and a father does not
automatically have parental responsibility
• In some statutes, married and unmarried couples are treated the same, for
example, under the Family Law Act 1996, cohabitants have the same rights
as spouses or civil partners to apply for a non-molestation order
• For the most part, cohabitants are treated as separate individuals
Definition of Cohabitation
• Tyler J in Kimber v Kimber [2000] suggested the following factors should be
considered in deciding whether there is cohabitation:
- Whether the parties were living together under the same roof;
- Whether they shared tasks and duties of daily life;
- How the parties arranged their finances;
- Whether the parties had an ongoing sexual relationship;
- Whether the parties had any children and how the parties acted towards
each other’s children; and
- The opinion of the reasonable person with normal perceptions looking at
the couple’s life together
• Family Law Act 1996 – ‘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’
• Ghaidan v Godin-Mendoza [2004] – Mr A was the tenant of a flat. For nearly
20 years, he lived here with Mr B before he died. Mr B claimed that he was
entitled to take over the tenancy under the terms of the Rent Act 1977
because he was living ‘as husband and wife’ with the tenant.
Relying on the HRA 1998, HoL was willing to interpret the phrase ‘living
together as husband and wife’ to include a same-sex couple. The
interpretation was required to avoid discrimination against people based on
their sexual orientation. Further, the public policy behind allowing unmarried
opposite-sex cohabitants to succeed to tenancies applied equally to same-sex
cohabitants
Issue of Financial Support
• During a marriage or CP, each party can seek a court order requiring one to
pay maintenance to the other, but an unmarried cohabitant cannot.
• Additionally, on divorce od dissolution the court has the power to redistribute
property owned by either party. But on the ending of an unmarried
relationship, the court only has the power to declare who owns what and has
no power to require one party to transfer property to the other
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