De Facto Cohabitation: the International Private Law Dimension

Document Cited authorities (64) Cited in Related
Pages51-76
Date01 January 2008
Published date01 January 2008
DOI10.3366/E1364980908000073
AuthorJaneen M Carruthers

In recent times there has been a great deal of social, political and academic interest in the United Kingdom in the statutory institution of civil partnership,1

E.g. Department of Trade and Industry, Civil Partnership: A framework for the legal recognition of same-sex couples (2003); K McK Norrie, “Recognition of foreign relationships under the Civil Partnership Act 2004” 2006 Journal of Private International Law 137.

and in the rules of law, internal and conflict of laws, which regulate the status of civil partner and its incidents.2

Civil Partnership Act 2004. Since 21 December 2005 same-sex partners in the UK have been able to register their relationship as a civil partnership, a de iure, “regulated” relationship having specified consequences. See also the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005, SSI 2005/629 and, for England and Wales, the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005, SI 2005/3334.

 Attracting far less comment, however, have been those rules which govern what is a more commonly encountered form of domestic relationship, de facto cohabitation. Recent legislation in Scotland has given de facto cohabitants new rights and responsibilities,3

During the passage through Parliament of the Civil Partnership Act 2004, the House of Lords noted the lack of legal remedies under English law for couples who live together but do not marry or, in the case of same-sex couples, register a civil partnership. The matter has been recently addressed by the Law Commission: see Consultation Paper on Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com CP No 179, 2006) para 1.1; Report on Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007) (both available on www.lawcom.gov.uk).

 but in conflict of laws terms it is not clear when or to whom these rights and responsibilities apply

When considering the formulation of conflict rules (particularly choice of law rules) to govern domestic relationships, it is first necessary to distinguish the various types of relationship which are to be found with regard to unmarried couples. The following legal categories can be identified:

regulated (de iure) partnerships, i.e. civil partnership (or similar), registered or formalised according to the internal law of a given state, and imposing upon registered partners all the consequences prescribed by the statutory regime of that state. Civil partnerships registered under the Civil Partnership Act 2004 fall into this category.

regulated (de iure) partnerships, as above, but in respect of which some or all of the statutory consequences (e.g. matters of property and succession) may be excluded by agreement of the parties, i.e. where parties are able to opt out of certain consequences which otherwise would flow automatically from the act of registration or formalisation of the relationship.4

The Civil Partnership Act 2004 does not afford registering couples an opportunity to exercise party autonomy.

de facto unions, i.e. cohabiting relationships5

To be understood as being of a sexual nature, i.e. where the parties are living together “as if they were husband and wife”, meaning that shared living arrangements between parent and adult child, or between siblings, or among friends, for economic or other reasons, are not to be included in this category. In its Consultation Paper on Cohabitation (n 3) para 1.12 the Law Commission uses the term “cohabitants” to mean couples who “live together in intimate relationships”. In the Report on Cohabitation (n 3) para 3.13 the Law Commission refers to persons who “are living as a couple in a joint household” and “are neither married to each other nor civil partners”.

established otherwise than by formal registration and/or legal ceremony, and imposing upon cohabitants all the consequences prescribed by the applicable legislative regime – including, in situations where legal consequences do not flow automatically from the fact of cohabitation, the opportunity to apply for legal rights.6

I.e. the right to apply for the adjustment of property rights and financial provision between cohabiting couples upon separation or death.

 This category includes cohabitation as defined in section 25 of the Family Law (Scotland) Act 2006.

de facto cohabitation where some or all of the statutory consequences (including the right to apply for such) may be excluded by agreement of the parties. This category does not exist in Scotland, where it does not seem possible for cohabitants to agree, prior to or during the period of cohabitation, to contract out of the statutory entitlements laid down in the 2006 Act, albeit that the benefits to be conferred must be applied for by one or both parties. Some legal systems, however, may permit parties to opt out of the default regime and, if desired, to substitute their own arrangements.

de facto cohabitation unregulated by law, i.e. personal domestic relationships which incur no special legal consequences as such. This category includes not only individuals living under a legal system which (as in Scots law prior to the coming into force of the 2006 Act) makes no provision for de facto cohabitants, but also persons who do not satisfy the eligibility criteria imposed by the regulatory scheme in question (for example, under the 2006 Act, adult siblings having a shared living arrangement).

Classification of the legal nature of a relationship (qua marriage, civil/registered partnership, de facto cohabitation etc) is a task for the forum.7

Lee v Lau[1967] P 14; Wilkinson v Kitzinger[2006] EWHC 835 (Fam), [2006] 2 FLR 397; [2006] EWHC 2022 (Fam), [2007] 1 FLR 295.

Whilst the legislative focus recently has been on conflict problems (potentially) arising from civil/registered partnerships,8

See E B Crawford and J M Carruthers, International Private Law in Scotland (2006) paras 11-35-11-37.

there is, at least in the UK, a higher incidence of defacto unions,9

For background statistics in England and Wales, see Law Commission, Consultation Paper on Cohabitation (n 3) part 2.

 and so legal problems in practice are more likely to pertain to de facto cohabitation than to de iure civil partnerships. Moreover, situations concerning parties who have not formalised their relationship are likely, for that very reason, to be more complicated, or at least to present more difficult problems of proof

Since 21 December 2005 same-sex couples (but not heterosexual couples) have been able to register their relationship as a civil partnership under the Civil Partnership Act 2004. The effect is for parties to become subject to the rules specially created for the institution of civil partnership. Since civil partnership is a de iure relationship having specified, tailored consequences,10

Wilkinson v Kitzinger[2006] EWHC 2022 (Fam) at para 50 per Sir Mark Potter P: “the intention of the Government in introducing the legislation was not to create a ‘second class’ institution, but a parallel and equalising institution designed to redress a perceived inequality of treatment of long term monogamous same-sex relationships, while at the same time, demonstrating support for the long established institution of marriage.”

these will override the application of such rules as regulate de facto cohabiting relationships

Prior to the Family Law (Scotland) Act 2006, no single body of rules governed the definition, constitution, and proprietary/financial consequences of de facto cohabitation in Scots domestic law. Particular claims against a cohabitant were recognised on occasion, but provision under Scots law was haphazard.11

E.g. Damages (Scotland) Act 1976 ss 1, 10(2), as amended; Matrimonial Homes (Family Protection) (Scotland) Act 1981 s 18; Mental Health (Scotland) Act 1984 s 53(5); Social Security Act 1986 s 20(11); Housing (Scotland) Act 1988 s 31(4); Finance (No 2) Act 1988 s 42; Adults with Incapacity (Scotland) Act 2000 s 87(1); Mortgage Rights (Scotland) Act 2001. See J M Carruthers, “Unjustified enrichment and the family: revisiting the remedies” (2000) 5 SLPQ 58.

The 2006 Act12

Family Law (Scotland) Act 2006 ss 25-30.

 introduced a set of rules applying to de facto cohabitants, defined in section 25(1) as follows: either member of a couple consisting of (a) a man and a woman who are (or were) living together as if they were husband and wife; or (b) two persons of the same sex who are (or were) living together as if they were civil partners. Thus the provisions in the Act apply both to heterosexual couples and to same-sex couples.13

But not to married couples (necessarily heterosexual), whose proprietary and financial rights derive instead from, inter alia, the Family Law (Scotland) Act 1985 and the Succession (Scotland) Act 1964; nor to civil partners (necessarily same-sex) who, in turn, derive their rights from the Civil Partnership Act 2004.

One general problem with regard to the definition of cohabitation is that of identifying the date of commencement, and possibly the date of termination; both, presumably, are questions of fact. The 2006 Act takes the approach of providing in section 25(1) an abstract definition of those who are eligible to be regarded as a “cohabitant”, and of providing in section 25(2) factors which may be taken as sufficient to establish cohabitation. Section 25(2) states that the court shall have regard to:

the length of the period during which A and B have been living together (or lived together);

the nature of their relationship during that period; and

the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

It is not possible, therefore, to advise with certainty whether Scots law would regard a particular couple as being cohabitants for the purposes of the 2006 Act. On the other...

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