Cohabitees entitlement rights

Should cohabitees be entitled to the same property and inheritance rights as married couples and civil partners? If this were so, would there subsequently be any purpose to marriage and civil partnership?

Introduction

While the distinction between the rights of spouses, civil partnerships and cohabitants was once defended by reference to social attitudes, cohabitation has gradually become accepted by society, sparking calls for reform.  This paper will critically examine the legal rights of cohabitants, focusing on inheritance and property rights.  Core case law decisions will be considered in order to compare the rights of cohabitants in comparison to spouses and civil partnerships in a bid to determine whether the rights of cohabitants are in need of equalisation to those of civil partners and married couples.  The potential for reform will be based on the claim that, while cohabitants need not necessarily be given equal rights to civil partners and spouses, their rights do need to be clarified and reinforced.  It will ultimately be proposed that reinforcing the rights of cohabitants does not undermine the purpose of marriage and civil partnership, it simply recognises the validity of cohabitation as a viable alternative.

Inheritance and Property Rights of Cohabitants

At law, cohabitants have been defined inconsistently as equals to spouses in some cases and completely distinct individuals in others.  While social attitudes have come to accept cohabitation as a viable alternative to marriage, the law has struggled to embody such social values. The notion that cohabitation is a ‘responsibility free’ alternative to marriage has on the other hand caused many to reject the claim that cohabitants should be given equal rights to spouses. The law therefore treats cohabitants distinctly to civil partners and spouses on the basis that the former supposedly seek to avoid the legal repercussions of a permanent relationship. This has however caused cohabitants’ inheritance and property rights to become restrictively and inconsistently applied; a consequence that also arises from the fact that such rights are based on common law rather than statute.

The inheritance rights of cohabitants may be criticised as incomplete and unfair in comparison to spouses and civil partners – particularly when a partner dies intestate.  Nonetheless, the Law Commission has concluded that there is no need for reform and as a result cohabitants are generally denied entitlement to the property of their intestate partners. Surviving cohabitants are excluded from intestacy law and the current law’s limited approach towards intestate partners continues to place cohabitants in an unequal position in comparison to spouses and civil partners.  The Inheritance (Provision for Family and Dependants) Act 1975 for example only grants ‘dependants’ the right to claim a deceased cohabitant’s property. Surviving cohabitants must therefore prove that they were supported by the deceased or residing together as husband and wife for at least two consecutive years.  Surviving spouses are not required to prove that they are dependants because they are automatically granted entitlement to a proportion of the property.

This brief comparison between spouses and cohabitants and civil partners demonstrates that cohabitants’ inheritance rights are heavily restricted in comparison to spouses and civil partners.  While it is generally stated that cohabitants are not granted any automatic rights to the deceased’s property, it was held in Dyson Holdings Ltd v Fox that when a cohabitant dies intestate, the surviving cohabitant can be defined as a family member of the deceased.  The court in this decision deemed it appropriate to accept that the cohabiting couple was ‘man and wife in every aspect’ except that they ‘had not gone through the ceremony of marriage’. It is notable that the courts approach cohabitants more favourably in cases concerning intestacy than in cases concerning separation.  This is evident in decisions such as Gully v Dix, in which, while the cohabitating couple had been separated for short spells, it was held that the relationship could not be defined as non-existent for the purposes of intestacy.  In such cases cohabitants need not prove that they were dependants, although the requirement that they live together for a minimum of two years is not imposed upon spouses.  Ultimately, the courts narrowly interpret the law when a cohabitant dies intestate, often resulting in the restriction or complete denial of the surviving cohabitant’s inheritance rights if there is not sufficient proof of dependency.

The same restricted approach is also adopted towards the standard of living that cohabitants can expect upon the death of a partner.  Surviving cohabitants are not automatically granted the right to maintain the couple’s initial standard of living, and the courts will generally only grant financial assistance that enables the surviving partner to maintain a general standard of living. A spouse is on the other hand entitled to inherit the entire estate of the deceased, allowing him/her to maintain the couple’s previous, or even improved standard of living. When a cohabitant partner dies intestate, it is evident that the surviving partner is denied inheritance rights, causing many to criticise the law and call for reform.

The property rights of cohabitants are also limited and unclear, primarily because they are rooted in the law of trusts.  While the courts exercise discretion in determining how the assets of divorced spouses should be divided, this has caused cohabitants’ property rights to be enforced in an inconsistent and unclear manner. Cohabitants may generally only claim property if they can establish a constructive trust, although they are required to have undertaken extensive work on the property. Spouses on the other hand are subject to a presumption of equality when dividing the couple’s assets, caused many to argue that cohabitants should be granted the same presumption. Most prominently, it is difficult to explain the distinction between cases in which contributions to the couple’s property were and were not accepted.  The courts have attempted to develop core considerations in dividing assets, referring to compensation, shares and need, although each case ultimately depends upon its particular facts. This means that there is no clarity as to the degree to which indirect contributions to property will impact upon cohabitants’ property rights.

On the Question of Equal Property and Inheritance Rights

The above outline illustrates that cohabitants are treated unfairly in comparison to spouses and civil partners.  This has sparked considerable criticism, as well as suggestions that the law be reformed to equalise the position of cohabitants.  The government has as of yet failed to fully address or respond to this stance.  The Law Commission has on many occasions examined the law in this area, proposing that it is ‘inadequate and gives rise to unwelcome circumstances’, yet it has merely concluded that cohabitants should exert more effort into understanding their rights or draft agreements on how their assets should be divided. In reality, few cohabitants have drafted such agreements, giving rise to the suggestion that legislation rather than cohabitants should take steps to strengthen and equalise the rights of cohabitants.  It is argued that there is no prominent reason as to why cohabitants’ rights could not and should not be made equal to those of spouses and civil partners.  Such equalisation would not undermine the social and practical distinction between these forms of relationship.  At the very least it is possible to argue that cohabitants’ rights should be clarified, rather than inconsistently applied by reference to common law decisions.  In this context, a core problem appears to be not that cohabitants do not have equal rights to spouses and civil partners, but that the law deals with the former in an inconsistent and unfair manner.

The Law Commission has proven more eager to suggest change in the context of cohabitants’ inheritance rights, recognising that ‘a surviving cohabitant should share in their partner’s estate without having to go to court’.  The failed Inheritance (Cohabitants) Bill embodied the reforms that would have been necessary to reinforce cohabitants’ legal rights, yet it was clearly preoccupied with the need to emphasise that cohabitants would not be equated to spouses. What is evident is that there is a ‘lack of consensus on the best way forward for reform’ and this has hindered efforts to clarify and strengthen the legal rights of cohabitants.  It is therefore argued that, while equalising the rights of cohabitants to those of spouses and civil partners may not yet be possible, reforms should focus on clarifying cohabitants’ rights.  Clearly, existing case law is in dire need of clarification and simplification.

It has been suggested that equalising the rights of cohabitants to those of civil partnerships and spouses undermines the autonomy of the former and imposes legal controls upon them which in fact serve to reduce or threaten their rights.  An alternative view is that cohabitants must be brought much closer to married couples under legislation so that they may be granted increased protection. This paper suggests that a mid-way approach be adopted which both increases and improves cohabitants’ rights, but which also protects the array of rights that are automatically granted to spouses and civil partnerships.  This would prevent cohabitants from being treated entirely equally to spouses and civil partnerships, yet it would also ensures that cohabitants’ rights are effectively and realistically protected.

Primarily, any major attempt to reform the law on the rights of cohabitants should seek to clearly and properly define what a cohabitant actually is, and the remedies available for cohabitants upon death or separation – particularly when children are involved.  This suggests that a complete overhaul of the law would be required, because existing law is simply not able to extend to cohabitants and protect their property and inheritance rights sufficiently.  The Children Act 2004 is not for example able to extend effectively to cohabitants, which often has a detrimental effect upon female cohabitants who are more likely to be left ‘economically vulnerable’ following separation or the death of their partners. It is however important to recognise that the biggest problem in any attempt to increase the rights of cohabitants arises from the need to keep family and property law distinct. The cohabitant situation blurs this distinction, necessitating that reference be made to both.  This illustrates that the rights of cohabitants, even if they are not made equal to civil partnerships and spouses, need to be clarified and properly outlined.

Reform should focus on where the law on cohabitants is lacking, not how it treats spouses and cohabitants comparatively.  As has been evidenced above, such an approach would reveal the need for the recreation of cohabitation law, although it could be rooted in extended principles of civil partnership and marriage law, yet adapted to suit the circumstances of cohabitants.  It is important to recognise that, because of the vast situations that can arise from cohabitant partnerships, to devise a new branch of the law would be difficult at best.  However, the most pressing areas – such as inheritance and property law - could be directly targeted in order to reinforce and clarify cohabitants’ rights.  It is evident that comprehensive proposals for reform that merely rely on vague alternatives located within existing law are not effective.  While many legal provisions have been altered to accommodate same-sex couples, cohabitants must still rely on a patchwork of unclear and incomplete legal principles.  Clarity, practicality, and consistency is required in order to reinforce the rights of cohabitants as cohabitants, and not merely in comparison to civil partnerships and spouses. 

The development of a distinct law for cohabitants need not however be a momentous task; it could instead attempt to further extend civil partnership and marriage laws to cohabitants.  Indeed, the core foundations have been laid, and it is important to keep such laws in line with cohabitant situations: ‘the common law, which gave a much-heralded birth to the new developments, has experienced only modest doctrinal growth’. It is possible to suggest that the principle of common law marriage be reintroduced, so that cohabitants could be better protected under this area of the law.  This could provide a suitable alternative to the creation of a completely new strand of cohabitation law, and moreover has the potential to set out comprehensive rules on property rights, inheritance rights and the division of assets.

Conclusions

It is possible to conclude that equalising cohabitants’ property and inheritance rights to those of civil partners and spouses would not undermine the purpose of the latter.  The above analysis of existing law illustrates that cohabitants’ rights are unclear and inconsistent, and that they require reinforcement and clarity.  It may moreover be argued that the importance of individual freedom and autonomy supports the claim that individuals should be free to choose whether to cohabit, enter into a civil partnership or marry and that the law should not treat them differently. Such differential treatment in fact undermines the purpose of these forms of relationship because a couple’s choice of relationship may be fuelled by the extent to which their rights may be protected.  Therefore, to treat cohabitees, civil partners and spouses equally in terms of their property and inheritance rights is not to undermine the institution of marriage or the status of civil partnerships.   It is rather to recognise that cohabitants deserve rights protection under law, because to claim otherwise is to accept that ‘extra-marital cohabitation is wrong and consequently no legal rights should be granted to those who engage in it’.

References

Books & Journals

Barlow, A., ‘Regulating Marriage and Cohabitation in 21st century Britain’ [2004] 67 MLR2.

Barlow, A., ‘Cohabitation Law Reform: Messages from research’ [2006] 14 FLS 2.

Barlow, A & R Probert, ‘Regulating Marriage and Cohabitation: Changing Family Values and Policies in Europe and North America – An Introductory critique’ [2004] 26 LP 1.

Barton, C., ‘Cohabitants, Contracts and Commissioners’ [2007] 37 FL 5.

Bottomley, A., ‘From Mrs Burns to Mrs Oxley: Do Co-Habiting Women (Still) Need Marriage Law?’ [2006] 14 FLS 2.

Bowman, CG., ‘A Feminist Proposal to Bring Back Common Law Marriage’ [1996] 2 CLFP 138.

Bridge, S., ‘Cohabitation: Why Legislative Reform is Necessary’ [2007] 37 FL 10.

Bruch, CS., ‘Cohabitation in the Common Law Countries a Decade after Marvin: Settled in or Moving Ahead?’ [1988] 22 UCDLR 717.

Burton, F., Family Law (Routledge 2012).

Darlington, E, L Heaton & C Wagstaffe, Cohabitation and Trusts of Land (2nd edn, Sweet & Maxwell 2009).

Deech, R., ‘Cohabitation’ [2010] 40 FL 39.

Douglas, G, J Pearce & H Woodward, ‘A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ [2007] 8 CLSRP 1.

Duncan, S, A Barlow & G James, ‘Why Don’t They Marry?: Cohabitation, Commitment and DIY Marriage’ [2005] 17 CFLQ 3.

Glennon, L., ‘Fitzpatrick v Sterling Housing Association Ltd: An Endorsement of the Functional Family?’ [2010] 14 IJLPF 3.

Hibbs, M, C Barton & J Beswick, ‘Why Marry? Perceptions of the Affianced’ [2001] 31 FL 197.

Holland, W., ‘Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation?’ [2000] 17 CJFL 114.

Hudson, A., Equity & Trusts (6th edn, Routledge-Cavendish 2010).

Lewis, J., ‘Debates and Issues Regarding Marriage and Cohabitation in the British and American Literature’ [2001] 15 IJLPF 1.

Lowe, N & G Douglas, Bromley’s Family Law (10th edn, OUP 2007).

Miles, J., ‘Property Law v Family Law: Resolving the Problems of Family Property’ [2003] 23 LS 4.

Otlhogile, B., ‘Mistress at Law – The Case of an Unprotected Dependant’ [1994] 8 BJAS 2.

Piska, N., ‘Intention, fairness and the Presumption of Resulting Trust after Stack v Dowden’ [2008] 71 MLR1.

Probert, R., ‘Trusts and the Modern Woman – Establishing an Interest in the Family Home’[2001] 13 CFLQ275.

Probert, R., Cretney and Probert’s Family Law (7th edn, Thomson 2009).

Probert, R., The Changing Legal Regulation of Cohabitation: From Fornicators to Family 1600-2010 (Cambridge University Press 2012).

Robert, R., ‘Marriage at the Crossroads in England & Wales’ in Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First Century Families (M Garrison &ES Scott eds, Cambridge university Press 2012a).

Samuels, A., ‘Inheritance (provision for Family and Dependants) Act 1975’ [1976] 39 MLR2.

Standley, K., Family Law (7th edn, Palgrave Macmillan 2010).

Thornton, A, WG Axinn & Y Xie, Marriage and Cohabitation (University of Chicago Press 2007).

Wade, J., ‘Marriage and Cohabitation Contracts’ [2004] 10 NLE 2.

Williams, C, GC Potter & G Douglas, ‘Cohabitation and Intestacy: Public Opinion and Law Reform’ [2008] 20 CFLQ 4.

Wood, H, D Lush, D Bishop, A Murray & J Eames, Cohabitation: Law, Practice and Precedents (5th edn, Family Law 2011).

Reports

Centre for Social Justice, Every Family Matters: An In-Depth Review of Family Law in Britain (Centre For Social Justice 2009).

Law Commission, Sharing Homes: A Discussion Paper - Law Com No 278 (Stationery Office 2002).

Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown: A Consultation - Law Com No 307 (Stationery Office 2007).

Law Commission, Intestacy and Family Provision Claims on Death: Executive Summary - Law Com No 331 (Stationery Office 2011).

Law Commission, Intestacy and Family Provision claims on Death; Inheritance (Cohabitation) Bill Impact Assessment - Law Com No 0013 (Stationery Office 2011).

Cases

Burns v Burns [1984] 2 WLR 582.

Cooke v Head [1972] 1 WLR 518.

Dyson Holdings Ltd v Fox [1976] QB 503.

Eves v Eves [1975] 1 WLR 1338.

Graham v Murphy [1997] 1 FLR 860.

Gully v Dix [2004] 1 WLR 1399.

James v Thomas [2007] EWCA Civ 1212.

Jelley v Iliffe [1981] Fam 128.

Kernott v Jones [2010] EWCA Civ 578.

Lloyds Bank plc v Rosset [1991] 1 AC 107.

McFarlane v McFarlane [2006] UKHL 24.

Stack v Dowden [2007] UKHL 17.

Walker v Hall [1984] 1 FLR 126.

Watson (Deceased) [1999] 1 FLR 918.

White v White [2001] 1 AC 596.

footnotes

A Thornton, WG Axinn & Y Xie, Marriage and Cohabitation (University of Chicago Press 2007) 79-80.

S Duncan, A Barlow & G James, ‘Why Don’t They Marry?: Cohabitation, Commitment and DIY Marriage’ [2005] 17 CFLQ 3, 397.

A Barlow & R Probert, ‘Regulating Marriage and Cohabitation: Changing Family Values and Policies in Europe and North America – An Introductory critique’ [2004] 26 LP 1, 3-4.

Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown: A Consultation - Law Com No 307 (Stationery Office 2007) 2.45; K Standley, Family Law (7th edn, Palgrave Macmillan 2010) 73 -74.

A Thornton et al, supra, 282.

R Deech, ‘Cohabitation’ [2010] 40 FL 39, 44-45; M Hibbs, C Barton & J Beswick, ‘Why Marry? Perceptions of the Affianced’ [2001] 31 FL 197, 202.

G Douglas, J Pearce & H Woodward, ‘A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ [2007] 8 CLSRP 1, 3.8.

C Williams, GC Potter & G Douglas, ‘Cohabitation and Intestacy: Public Opinion and Law Reform’ [2008] 20 CFLQ 4, 511-513; Law Commission, supra, 6.2.

Law Commission, ibid, 6.3.

Inheritance (Provision for Family and Dependants) Act 1975, s. 1.

A Samuels, ‘Inheritance (provision for Family and Dependants) Act 1975’ [1976] 39 MLR2, 184.

Administration of Estates Act 1925, s. 46; R Probert, Cretney and Probert’s Family Law (7th edn, Thomson 2009) 202.

F Burton, Family Law (Routledge 2012) 209.

Dyson Holdings Ltd v Fox [1976] QB 503.

Ibid, Lord Denning, [53].

Gully v Dix [2004] 1 WLR 1399.

Re Watson (Deceased) [1999] 1 FLR 918.

B Otlhogile, ‘Mistress at Law – The Case of an Unprotected Dependant’ [1994] 8 BJAS 2, 3.

Graham v Murphy [1997] 1 FLR 860.

W Holland, ‘Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation?’ [2000] 17 CJFL 114, 119-120.

J Lewis, ‘Debates and Issues Regarding Marriage and Cohabitation in the British and American Literature’ [2001] 15 IJLPF 1, 160-163; Jelley v Iliffe [1981] Fam 128.

N Lowe & G Douglas, Bromley’s Family Law (10th edn, OUP 2007) 6-9.

K Standley, supra, 54; H Wood, D Lush, D Bishop, A Murray & J Eames, Cohabitation: Law, Practice and Precedents (5th edn, Family Law 2011) 85-88.

Centre for Social Justice, Every Family Matters: An In-Depth Review of Family Law in Britain (Centre For Social Justice 2009) 74-80.

Cooke v Head [1972] 1 WLR 518.

Eves v Eves [1975] 1 WLR 1338; James v Thomas [2007] EWCA Civ 1212; Walker v Hall [1984] 1 FLR 126; Burns v Burns [1984] 2 WLR 582.

A Barlow, ‘Regulating Marriage and Cohabitation in 21st century Britain’ [2004] 67 MLR2, 146-150.

A Hudson, Equity & Trusts (6th edn, Routledge-Cavendish 2010) 635-636, 763.

E Darlington, L Heaton & C Wagstaffe, Cohabitation and Trusts of Land (2nd edn, Sweet & Maxwell 2009) 256-257.

McFarlane v McFarlane [2006] UKHL 24; White v White [2001] 1 AC 596.

Stack v Dowden [2007] UKHL 17, Baroness Hale, [69]; R Probert, ‘Trusts and the Modern Woman – Establishing an Interest in the Family Home’[2001] 13 CFLQ275, 281; Kernott v Jones [2010] EWCA Civ 578.

N Piska, ‘Intention, fairness and the Presumption of Resulting Trust after Stack v Dowden’ [2008] 71 MLR1, 125-126; Lloyds Bank plc v Rosset [1991] 1 AC 107.

S Bridge, ‘Cohabitation: Why Legislative Reform is Necessary’ [2007] 37 FL 10, 911-912.

Law Commission, Sharing Homes: A Discussion Paper - Law Com No 278 (Stationery Office 2002) 5.1.

Law Commission, supra (2007), 1.31.

C Barton, ‘Cohabitants, Contracts and Commissioners’ [2007] 37 FL 5, 8.

J Wade, ‘Marriage and Cohabitation Contracts’ [2004] 10 NLE 2, 2-3.

Law Commission, Intestacy and Family Provision Claims on Death: Executive Summary - Law Com No 331 (Stationery Office 2011) 31.

Law Commission, Intestacy and Family Provision claims on Death; Inheritance (Cohabitation) Bill Impact Assessment - Law Com No 0013 (Stationery Office 2011) 41.

A Barlow, ‘Cohabitation Law Reform: Messages from research’ [2006] 14 FLS 2, 168; R Probert, The Changing Legal Regulation of Cohabitation: From Fornicators to Family 1600-2010 (Cambridge University Press 2012) 261.

R Robert, ‘Marriage at the Crossroads in England & Wales’ in Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First Century Families (M Garrison &ES Scott eds, Cambridge university Press 2012a) 73-74.

R Probert, supra (2012), 258.

A Bottomley, ‘From Mrs Burns to Mrs Oxley: Do Co-Habiting Women (Still) Need Marriage Law?’ [2006] 14 FLS 2, 199; Law Commission, supra (2007), 3.63.

J Miles, ‘Property Law v Family Law: Resolving the Problems of Family Property’ [2003] 23 LS 4, 624-625.

CS Bruch, ‘Cohabitation in the Common Law Countries a Decade after Marvin: Settled in or Moving Ahead?’ [1988] 22 UCDLR 717, 717.

CG Bowman, ‘A Feminist Proposal to Bring Back Common Law Marriage’ [1996] 2 CLFP 138, 713.

L Glennon, ‘Fitzpatrick v Sterling Housing Association Ltd: An Endorsement of the Functional Family?’ [2010] 14 IJLPF 3, 12.

R Deech, supra, 42.

N Lowe & G Douglas, supra, 8.