Issues Surrounding Cohabitation, Law Regarding Cohabitation - Essay Example

?Essay Table of Contents Introduction Issues Surrounding Cohabitation 2 Law Regarding Cohabitation 5 Solution 10 Conclusion 12 Introduction Many couples choose to live together without benefit of marriage. This is an inescapable fact. However, it is also an inescapable fact that, at least in the UK, the two partners in a cohabiting relationship are not protected equally by the law. Cohabitation is defined as “two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners.” 1 How the UK law views these relationships is that the partners are considered to be merely two people living together under the same roof, therefore the property division between the parties is settled not through marital law, but through standard property law.2 Cohabitation law may extend to opposite sex couples, same-sex couples, and platonic pairs.3 If one party does not contribute financially towards the house, through mortgage payments or financial contributions towards the purchase price, then that partner is not entitled to any equity in the home.4 Neither partner is entitled to alimony, either.5 Moreover, the children who are born during the partnership are not automatically considered to be the children of the man in the relationship – other steps must be taken to establish paternity, and couples often do not take these extra steps, so the man has neither the rights nor the responsibilities regarding these children.6 This essay will examine the issues surrounding people who cohabit, as well as the specific cases regarding cohabitation, and will attempt to make recommendations that would help couples be better protected under the UK law. Issues Surrounding Cohabitation One of the major issues surrounding cohabitants is the way that they run their finances.7 Specifically, the rule in the UK about cohabitants is that there is an assumption in the UK law that the partners in the cohabiting relationship are bound to one another to support one another financially.8 This is played out in the context of benefit entitlement – the law in the UK states that two people who are married or co-habiting cannot make individual claims for benefits.9 One of the people in the relationship must make the claim for both people in the relationship, as well as any children who are a part of the relationship.10 The UK law then looks at the joint income of the household, and if the joint income of the household is above a certain threshold, then the people in the household are not entitled to certain benefits.11 The issue with this is that the unmarried cohabiting couple are not obligated to support one another, yet the law treats them as if they are.12 This has implications especially for the female non-working partner. The status for women, with regards to state support, previously was that she could have a valid claim for benefits if she were in an unmarried relationship with a man, but this changed with the Supplementary Benefit Act 1966.13 The Supplementary Benefit Act 1966 states that unmarried persons must apply for benefits jointly if they are cohabiting.14 The reason that the law treats the two people in a cohabiting relationship as if they are married is that social policy is geared towards encouraging marriage and discouraging cohabiting relationships.15 In other words, it was in the best interest of the UK government to encourage marriage by not treating cohabitants differently than married couples. This is because, if the UK government chooses to treat cohabitants more favorably than married couples, by giving each partner separate benefits, then this would discourage the couples from marrying. The upshot of this cohabitation rule, is that the non-working partner loses his or her lone parent status, and the benefits that are associated with this status.16 The non-working partner, therefore loses the ability to have their own money, if they are staying home and taking care of the children, and they are forced to rely upon sometimes unreliable partners for clothing, housing, groceries and the like. What this would mean, in the context of a breakdown in the relationship, is that the non-working partners would find themselves less able to support themselves financially, because they would not have the on-going money given to them while they are in the relationship. They might not be able to survive financially, on their own, without this assistance. Of course, once they move out of the household, they would be qualified to be considered a lone parent, and would get the benefits which go along with this. However, there is not a doubt that the non-working partner would be in a better position if they never moved in with their partner in the first place. Flueckiger (2008) argues that 'the cohabitation rule is therefore not gender neutral, and affects women disproportionately, mainly for this reason.' The law should be changed, according to reflect the economic realities of co-habiting relationships.17 Associated with this is the issue of alimony, which would also presumably affect the non-working partner more than the working partner.18 Generally, neither of the couple is entitled to alimony after the cohabiting relationship dissolves.19 Since women are more likely than men to be the ones who sacrifice career and education to have children,20 this rule affects women more than men. The non-working partner is often unable to support themselves after they separate from their partner because of the fact that they do not have a career, education or money of their own. If they were married to their partner, then this would be less of a problem, as the working partner would not only have to pay her child support after the dissolution of the union, but also alimony, which is often necessary for the non-working partner to maintain a standard of living. Therefore, this is another way that the law does not protect the rights of the members of the cohabiting couples. There is also an issue with parentage, and this can also cause problems if a cohabiting couple decides to separate.21 This is because, often, couples who have children together do not bother with establishing paternity for the children. Therefore, if the couple disintegrates, it becomes likely that the father in the relationship will be able to not provide child support for the children, because he was never established as the father of the children.22 This is therefore another hazard of ending a co-habitation relationship. Assuming that the non-working partner was receiving support for the children of the union during the cohabitation, and this is, as noted above, an assumption that often does not comport with reality, this non-working partner may find that she is no longer receiving support for the children of the union after the relationship dissolves. Of course, she may also seek a paternity action, in which the father of the children is declared to be the legal father, and the man would then have responsibilities towards the children, as well as rights.23 However, this often involves the expense of establishing the paternity, including counselor and court fees, and not every non-working partner would have this at her disposal. This is another example where the law does not provide adequate protection to the non-working partner and why the dissolution of cohabiting relationships is therefore more hazardous to women than a dissolution of a marriage, because, after a marriage dissolves, the children of the marriage are presumed to be the husband's children, so the non-working partner would automatically be entitled to child support in this case.24 Cohabiting couples also have an issue with property division after a union dissolves,25 and this issue will be looked at further in the cases below. For instance, the divorce law that is concerned with property division is not applicable to couples who are only cohabiting together. Therefore, the laws that pertain to property division in the dissolution of marriage cannot govern couples who are breaking up after cohabiting together, and ordinary property law principles are applied in such cases.26 In divorce cases, the property is presumed to be the property of both partners in the marriage. In this case, the property is divided between them in an equitable manner, which would mean that the property is divided in a fair manner, as decided by the court.27 However, this is not the case with property law - in that case, the property is presumed to be the property of the person in whose name the property is titled, and this property is not necessarily going to be divided between the partners.28 Moreover, as shown below, the partner who does not make direct financial contributions to the property is often not entitled to a share of the property at all.29 Law Regarding Cohabitation This section will deal with the individual laws that have been passed which have either protected cohabitants or limited their protections. There are several UK cases that distinctly state that women, or the cohabitant who is not directly financially contributing to the household, are not protected, property-wise, in the event that the relationship breaks down. One of these cases is the case of Burns v. Burns.30 'The plaintiff in Burns lived with the defendant in Burns, while never being married to the defendant. In the relationship the plaintiff, ‘Valerie stayed at home and cared for the children. Later she undertook paid work and used her salary to pay some domestic bills and to buy furniture and equipment for the house and clothes for the children. She also decorated the interior of the house.’31 The court in Burns stated that Valerie's contribution to the household was not enough to give her any property rights when the relationship dissolved. The only way that Valerie would have been entitled to property rights would be if it were shown that she had made actual financial contributions, in the form of a down-payment or mortgage installments.'32 This principle was echoed in Lloyds Bank plc v. Rosset, which is a case involving a married couple. 33 This case, like the Burns case held that 'an individual would not have a property interest if that person did not contribute financially. The court could not look at conduct alone when awarding property interests to cohabitants who were no longer together.'34   These Rosset and Burns cases, taken together, therefore are harmful to the non-working cohabiting partner in the relationship, because, as noted, the non-working partner is often the one in the partnership who foregoes a career or education, in order to stay home with the children. If they are not working, then they cannot contribute financially. They make other meaningful contributions to the household, including the fact that they are taking care of the children and the household. These contributions should be examined by the court, so that the cohabiting non-working partner may have an equitable interest in property if they are not directly contributing financially. An equitable interest may be contrasted with a legal right in property. If one has a legal right in property, then the law protects that person's interest. An equitable right, however, is not protected by law, but, rather, is protected by equity – what is fair.35 However, these cases imply that these non-working partners are essentially left out in the cold when a cohabiting relationship breaks down, as they are not entitled to property if they are not contributing financially. This is not to say that, in all cases, all conduct would not be considered. Abbott v. Abbott,36 which is a Caribbean case involving a married couple, states that 'some conduct would be examined with relation to property interests.' However, even this court found that the conduct in question still involved finances. If one party made payments into a joint account, then this would also be considered to be conduct that would be relevant to the division of property.' In other words, the cohabiting non-working partner's contribution of child care and household care still would not be relevant under the Abbott rule. A UK case, though, indicates that the cohabiting partner's contribution of housework can be relevant to the question of property interest after the dissolution of the cohabiting relationship, but, again, only if they had also made financial contributions. This case is Drake v. Whipp.37 In this case, 'her partner claimed that her contribution to the house was just under 20%. The court found that her total interest in the property was, however, one-third. This was because she was able to show that she also contributed her labour and housekeeping, in addition to the fact that she paid household expenses.' There are other cases that state that financial contributions would be considered when dividing up property. Included in this would be Oxley v. Hiscock. 38 'In this case, there were two unmarried partners, and both contributed to the purchase price of the home. Even though the house was transferred into the name of the man alone, both parties were allowed a interest in the property, due to the fact that both parties contributed financially towards the price of the home.' Stack v. Dowden [2007]39 is another such case. In the Stack case, the property was in both person’s names, after the woman sold her sole property and used this money to invest in the new home, and this court used a variety of factors in finding who had the main interest in the property, and how much this interest was for each of the parties. Both partners were working. The factors included ‘the intentions of the parties, the amount of financial contributions towards the purchase price and mortgage payments, how the parties arranged their finances and how they discharged household expenses.' The cohabiting non-working partner, however, in general, is still not protected by the law, even when considering the Stack factors. This is because the cohabiting non-working partner must demonstrate that they have an interest in the property. In order to get to this point, they first must either show intention through an express agreement from their partner, and that this express agreement must state that they are entitled to a portion of the home. Or, alternatively, the cohabiting non-working partner can show that they are entitled to an interest through financial conduct, such as making mortgage payments or contributing towards the purchase price.40 It is only after this initial threshold is met that the other factors come into play: 'the intentions of the parties, the amount of financial contributions towards the purchase price and mortgage payments, how the parties arranged their finances and how they discharged household expenses.'41 The other case that establishes this basic concept, that, as the Stack case held, and where the cohabiting partners must have contributed financially to the property, in order to have an interest in that property, is Jones v. Kernott.42 In the case of Jones, 'the female partner and the man contributed to the purchase of the home, and the home was in the name of both parties. The parties shared the household bills, from May 1985 to 1993. At this point, Mr. Kernott left the home, stopped paying bills and did not contribute to the maintenance of the couple's children. Kernott also did, while he lived in the couple's home, some labouring work, which improved the home. This labouring work went towards an extension of the home that was valued at ?14,000, and increased the value of the home accordingly. Kernott then tried to claim, in 2006, that he owned one half share of the Badger Hall Avenue.  The court, however, stated that Ms. Jones contributed over 80% of the equity in the home, and Kernott contributed little towards the maintenance of the children, therefore the split of the home would be 90/10 in favour of Jones. The court in Kernott stated that, even though the home was initially bought with the intention that the home would be owned jointly, the intentions of the parties had changed over the years, as evidence by Kernott’s behavior.  Also, once the parties separated, the inference that the home would be owned jointly was also severed, as this, in and of itself, evidenced a change in the intentions of the parties, with regards to the property ownership.' The above cases have more or less shown the importance of financial contributions by cohabiting couples in order to then get their rights in property. What this therefore shows is that the cohabiting partner who does not contribute financially is often then therefore prejudiced by the law. Nevertheless, there is a remedy that the court can however fashion for this – a constructive trust. This was established in the Rosset case43 and a constructive trust means that the property is considered to be property of both. The requirements of this are 'that there is a common intention. This means that the parties intend to share ownership of the land. There may either be an express or implied intention. Express may be a writing or an agreement. Implied may be conduct – such as putting money towards the purchase price or the mortgage. Another requirement is detrimental reliance – one of the parties assumed that he or she is entitled to an interest, and relied upon this assumption and experienced detriment because of this reliance on this assumption.'44 In Eves v Eves,45 the couple were cohabitants. 'The man told the woman that as she was under 21, the house had to be in his sole name. If she was of age, then he would have to put the house into the names of both. The woman did a great deal of heavy manual work on the house including demolishing a shed, breaking up concrete, painting woodwork, and stripping wallpaper. All this work helped to renovate the property from an initially dilapidated state.' 46 This formed a constructive trust in the property for the woman – she relied upon the words of the male partner, that she would have the house titled in her name when she became of age, to her detriment, in that she put a great deal of time, work and effort into the property. In Grant v Edwards47 'the man told his cohabitant that she should not have her name on the deed as this would prejudice her ongoing matrimonial proceedings. The woman made no financial contribution to the purchase price but went out to work and looked after four children. The woman’s wages allowed the mortgage to be paid whilst leaving sufficient for the family to live on. The court found a constructive trust in the property, because the woman detrimentally relied upon the partner's promise to marry her and put her name on the deed.'48 Constructive trusts are important because The Trusts of Land and Appointment of Trustees Act 1996 §12 gives any beneficiary who is beneficially entitled to an interest in land the right to occupy that land.49 Solution The only obvious solution to the conundrum that faces mainly the British non-working, and more likely the female, partner who is in a cohabiting relationship that breaks up is that she demand that there be documentation regarding the intention of the parties. This is what British law looks at first – the parties' intentions regarding property. This could mean that she would insist that her name be put on the deed of the house. A deed is required to create a legal estate and interest in land.50 A signed writing, called a declaration of trust, is required for a valid deed, as stated by LPA 1925 §53(1)(b).51 If the main owner of the house is to put his or her partner's name on the deed, then the signed writing must comply with LPA 1925 §53(1)(b).52 There is some indication in British law that this would suffice to at least put the non-working partner over the initial threshold regarding whether or not she is entitled to any kind of interest in the house. Then, if the court looks at the situation using the Drake case,53 the cohabiting partner's contribution to the household, in the non-economic sense, could be used to determine how much equity he or she would have in the home. That seems to be one of the main UK case which looks at non-monetary contributions that do not directly impact the value of the home, so this is an argument that can be made in giving the cohabiting partner a interest, if it is the intention of the parties that she have an interest. And the best way to show intention would be to have her name on the house deed. Moreover, as the court would apply standard property law to the division of property, as opposed to applying marital law, another action that the parties could take would be to put their intentions in writing for how the property is to be divided. This would be like a premarital agreement, which is generally looked at disfavourably in the UK, although, in the right circumstances, can be used to show the intentions of a party in a dissolution of marriage.54 However, because the parties are not married, they do not have to be concerned about the fact that prenuptial agreements are still, in most cases, not recognized in the UK, because the UK will only use strict property law in dividing up their property. This is because, in standard property law, the parties can agree on how to divide property. There is nothing in standard property law which would preclude this. Therefore, the cohabiting couples' property agreement would be given deference, whereas a married couples' same agreement would not. In short, the UK law protects the partner who has the job and makes the financial contributions, whoever that happens to be. It does not necessarily mean that it is always the non-working female partner who will be prejudiced in a cohabiting breakup – if she is the breadwinner, then she would be the one protected by the law, because she is the one who is making the financial contributions. It could very well be that the man is one who is caring for the children, in which case the man would not be protected by the law if the relationship breaks down, because the man would be the one making non-financial contributions in this case. However, this is not the norm, even in today's society, so it is usually the non-working and most likely female partner who is not protected by the UK cohabiting laws, while the man is protected. In fact, one could argue that the financially secure spouse is overprotected by the law – there is not a doubt that child care and household care contributes value to the relationship, for both parties, yet the financially secure spouse gets to keep 100% of the property, and not have to acknowledge the contributions of the other partner at all.     Conclusion When two people decide to live together, they often are not aware of what their rights would be should they break up. Most people do not like to think about this reality. So, many couples go blissfully along, without getting any kind of documentation about what their financial and child-care arrangements would resemble should the time come that they are no longer together. This is a mistake, because the law does not really acknowledge cohabiting relationships. The UK law treats the property that the parties have owned as if they were merely roommates, and standard property law principles apply. What this means is that if you do not contribute financially to the house in some direct way – paying the mortgage or paying money towards the purchase price – then you are not entitled to a portion of that home. This is in spite of the fact that the UK law does take the married spouse's monetary and non-monetary contributions into account when marital property is divided. 55  Therefore, the cohabiting partner who is the homemaker has virtually no protection under UK law. The father of the children of the union also does not have any rights, unless there is a paternity suit and the man is established by the court as the father, and this is another problem. The father in a marriage has automatic rights to the children, because the children are automatically assumed to be his children. Which also means that the father in the marriage would automatically be presumed to owe child maintenance after the relationship is dissolved, and this is not the case with cohabiting couples. Therefore, it is important that all cohabiting couples have iron-clad agreements regarding property division, as well as establish paternity of children. Whether or not the courts would enforce alimony agreements and child support agreements is open to discussion, but all couples should have at least paternity established and property division agreements in place before they break up. Because as UK law shows, after a cohabiting couple breaks up, there is little protection for the spouse that has the least amount of money and power in the relationship. Bibliography Articles Asland, J. & Waaldjik, K. (2005) Major legal consequences of marriage, cohabitation and registered partnership for different and same-sex partners. In Waaldjik, K. (ed.) (2005) More or Less Together: Levels of Legal Consequences of Marriage, Cohabitation and Registered Partnership of Different-Sex and Same-Sex Partners: A Comparative Study of Nine European Countries. Paris: Institut National d'Etudes Demographiques, 155-167. Boele-Woelki, K. (1999-2000) Private international law aspects of registered partnerships and other forms of non-marital cohabitation in Europe. Lousiana Law Review, 60, 1053-1079. Bowcott, O. (20 Oct. 2010) Prenup agreement enforced under UK law. The Guardian. [online]. Bradley, D. (2001) Regulation of unmarried cohabitation in West-European jurisdiction – Determinant of legal policy. International Journal of Law, Policy and the Family 15: 22-50. Flueckiger, J., Morton, S. & Cunningham-Burley, S. (2008) Understanding co-habitation: A critical study of the living together as husband and wife rule in UK social security law. Centre for Research on Families and Relationships. Neyer, G. & Andersson, G. (2008) Consequences of family policies on childbearing behavior: Effects or artifacts? Population and Development Review 34, 699-724. Perelli-Harris, B. & Gassen, N. (2012) How similar are cohabitation and marriage? Legal approaches to cohabitation across Western Europe. Population and Development Review, 38(3), 435-467. Schrama, W. (2008) Family function over family form in the law on parentage? The legal position of children born in informal relationships. Utretch Law Review 4, 83-98. Books Barlow, A., Duncan, S., James, G. & Park, A. (2005) Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century. Portland, OR: Hart Publishing. MacKenzie, J. & Phillips, M. (2010) Textbook on Land Law. New York: Blackstone Press Sendall, J. (2012) Family Law Handbook. Oxford: Oxford University Press Waaldjik, K. (ed.) (2005) More or Less Together: Levels of Legal Consequences of Marriage, Cohabitation and Registered Partnership of Different-Sex and Same-Sex Partners: A Comparative Study of Nine European Countries. Paris: Institut National d'Etudes Demographiques. Statutes Law of Property Act 1925 The Trusts of Land and Appointment of Trustees Act 1996 Civil Partnership Act 2004 Supplemental Benefits Act 1966. Available at: www.legislation.gov.uk/ukpga/1976/71 Cases Abbott v. Abbott [2007] UKPC 53 Burns v. Burns [1984] Ch 317 Drake v. Whipp [1986] Ch 638 Eves v. Eves [1975] 1 WLR 1338 Grant v. Edwards [1986] Ch 638 Jones v. Kernott [2011] UKSC 53 Lloyds Bank plc v. Rosset [1990] UKHL 14 Oxley v. Hiscock [2004] EWCA Civ 546 Stack v. Dowden [2007] 2 WLR 831 Read More