A comparative analysis between the legal rights in marriage

The aim of this assignment is to critically evaluate and compare the financial rights of cohabitants and married couples in respect to termination of relationship. It will explore the legal differentials of these two relationships in context of financial provision and to determine their financial consequences. It will critically assess the harshness of the current state of law to cohabitants and by way of conclusion will propose for reform or changes to the current law for cohabitants.

Marriage was defined by Lord Penzance in Hyde v Hyde and Woodhouse [1] to mean “the voluntary union for life of one man and one woman to the exclusion of all others “but in more legal context marriage can be regarded as a relationship of two persons with legal consequences [2] while cohabitation is a setting where two people decides to live together for a short period or long term [3] . The courts have been just in protecting married couples after divorce or termination of relationship unlike cohabitants the courts are reluctant to offer protection to separated cohabitants. At separation very different rules apply to married couples and those who are cohabiting.

At law when cohabiting couples separates, the parties have less grounds to assert any rights in the relationship as opposed to married couples since there is no statutory system in division of assets in the relationship [4] . However major financial disputes are expected to arise in determining financial settlements between cohabitants. As the law commission proposed in 2007, [5] the rights of cohabitants as opposed to married couples are limited in relation to financial provisions but cohabitants must continue to rely on the principles laid down in Burn v Burn [6] where cohabitants can only make claims on the basis of property rules by establishing implied trust.

In the leading case White v White [7] as followed in Miller v Miller [8] the courts resided on the frame work of the Matrimonial Causes Act 1973 by applying s.27 and s.25 which gives the court the discretion to deal with the totality of property in marriage in a way that the court would never deal with cohabitants. It has been well established that since these cases the courts have decided to divide assets of married couples on equal basis by applying the principle of “yardstick of equality." This principle illustrates that the court will make an equal division of property by viewing the assets as jointly owned by both couples regardless whether one party has made lesser contribution than the other party or even where one party has not made any contribution at all. [9] 

In respect to cohabitants the rules are strictly different and the government is not willing to make any reform to include any rights of cohabiting couples in relations to financial provisions as opposed to married couples as the proposals made by the law commission are limited and far from coming into force [10] . As mentioned in earlier paragraph, since there is no statutory provision for financial right in cohabitation the claimant would only be able to rely on property law or trust law to lay a claim for such rights. A claimant can lay a claim by relying on resulting trust but this however requires prove of financial contribution to the property. As first laid down in Pettit v Pettit [11] by Lord Reid which has been confirmed in the leading case of Stack v Dowden [12] by Lord Neuberger reflecting the current position of the law today to remain that resulting trust cannot exist without prove of financial contribution to the property by the claimant.

However the current law today has established a gritty reliance on proof of trust before financial rights can arise in cohabitation. This has been proven to be unfair and unjust [13] to cohabitants as opposed to married couples as the courts have refused to consider other factors of the relationship but interested mainly on the agreement of the parties and also the standards for proving trust have rather been set too high for cohabitants. For instance in Lord Neuberger judgment in Stack v Dowden, it illustrates the unfairness of the requirement of proof of trust between parties of cohabitants. There has been some doubt by Law Lords [14] that this approach set out by Lord Neuberger is appropriate today

As discussed in Miller v Miller in relation to marriage, financial rights are seen to be equal and determined on the basis of joint endeavour, this is not available to cohabiting couples with same responsibilities as that of married couples as described by Lord Neuberger in Stack v Dowden. It is unjust for the requirement for proof of trust by claimant as the inequality lies in those circumstances where there is proof of years detriment as seen in Burns v Burns but there is no proof of direct financial contribution where the courts have decided to fail such claim due to lack of proof of financial contribution. It is inequitable that the yardstick of equality principle in marriage would provide benefits to married couples after short marriage but would disregard cohabitants even after years of detriments [15] .

This is clear indication that the status of marriage has conferred more rights on married couples as oppose to cohabitants. There is also irrational bias to the proposal of the law commission in relation to the principle of shared assets in terms of granting provision to cohabitant and as Burns illustrates there might also be problem in determining the financial rights of couples in a relationship where cohabitants have shared responsibility over their children but by law that child may not be treated as a member of a family [16] and the law of trust have failed to recognise domestic responsibility in cohabitation [17] 

Subsequently a problem arise in the principle laid down in the case of Lloyds Bank V Rosset [18] by Lord Bridge as to proving common intention and detriment on the path of the cohabitee in order to establish a constructive trust as to the effect that although it easy to proof detriment it might not be easy to proof common intention of the parties since such agreements are not usually in writing [19] . Although this principle has vigorously withstood the route of time, it may still portray as a barrier for future claims by cohabitants in relation to constructive trust.

By way of conclusion, this assignment has pointed out different ways by which married couples and cohabitant can assert their financial rights. Married couples can rely on s.25 and s.27 under the Matrimonial Causes Act to declare equal share of assets. Cohabitants can rely on implied and constructive trust to protect their financial rights by proving that a trust was created. The problem in this circumstance is that implied trust is not for cohabitants only but for large variety of claimants therefore if the courts where to take another path to establish constructive trust on a non financial input then it will also apply to all the other claimants. An additional difficulty is the legal fee for making such claims might be too high due to the procedural temperament of establishing implied trust instead of making an ancillary relief claim under legislation. As illustrated above the current law does not make available effective remedies for cohabitant which requires a need for reform. A more appropriate way forward still rely on legislation and the recognition that cohabitants should be provided with statutory rights to assert financial assistance from their partners and the government should approve the proposal of the law commission recommendation of legislation for cohabitants. Finally in the proposition for alteration in attitude towards cohabitants and married couples it requires minimum steps in attaining a just solution to the current problems.