Unmarried Partners in UK Law

The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.

These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses.

The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another.

Now, it is, I think, not putting it too high to say that between 1950 and 1975 there has been a complete revolution in society's attitude to unmarried partnerships of the kind under consideration. The ordinary man in 1975 would, in my opinion, certainly say that the parties of such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not.

Nor do I think that the decision of this court in Atkinson v Atkinson calls for re-visitation in the light of whatever social changes there may have been over the course of the last 15 years or so. The judgment of Mr Justice Waterhouse on the point of principle is broadly expressed. His conclusion that cohabitation is not to be equated with marriage remains as sound today as it was then.

Thus, there are cases on both sides of the line. Where does the present case fall ? In my judgment, the unmarried Claimant is not to be regarded as being in an analogous situation to a spouse in the context with which I am concerned. As Lady Hale said in In Re McLaughlin, supra, [26], it is important precisely to delineate that context. The comparison here is not simply between spouses and unmarried persons.

But the question is not whether the existing law is unfair and could be made fairer. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.