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The Legal Implications of a Relationship Outside Marriage
Published online by Cambridge University Press: 16 January 2009
Extract
It is still true to say that the English law encourages couples to marry rather than to live together without the sanction of the marriage ceremony. The parties to a stable relationship outside marriage, however, have recently been granted, both by judicial developments and statutory innovation, legal rights previously associated only with the status of marriage. In particular, reforming legislation has included the cohabiting, but unmarried, couple in certain significantly important improvements to the previously existing legal position of husband and wife. This article provides an overall review of recent developments. Questions relating to the status of children and the rights and duties of the parents, whether married or unmarried, are excluded. The legal position for the unmarried couple is, to a large extent, dictated by the prevailing policy that marriage should be encouraged. The opposing trends—both practical as well as changing moral norms—have not been sufficiently powerful for any substantial policy shift.
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References
1 See for example the comment by Baker, P. in Campbell v. Campbell [1976] 3 W.L.R. 572 at p. 577Google Scholar: “It is the ceremony of marriage and the sanctity of marriage which counts; rights, duties and obligations begin on the marriage and not before.”
2 Gammans v. Ekins [1950] 2 K.B. 328.Google Scholar
3 For the purpose of succeeding to a statutory tenancy on the death of the woman.
4 [1976] 1 Q.B. 503, 511; Dyson Holdings Ltd. v. Fox was distinguished in Helby v. Rafferty, The Times, 5 May 1978Google Scholar (C.A.), on the grounds that the woman in the latter case had deliberately chosen to avoid any permanence in the relationship.
5 Sched. 1, para. 3 (1) (b)—For a discussion of this provision see later.
6 s. 24 (2); s. 25 (3); s. 26 (1); s. 31; s. 36 (2). See later.
7 s. 1 (1) (b). See later.
8 H.C. 79, para. 42; H.C. 81, para. 37.
9 s. 1 (2); s. 2 (2). See later. See also Criminal Injuries Compensation Board, para. 7 “…where a man and woman were living together as man and wife they will be treated as if they were married to one another” so that where the victim and the offender were living together at the time, whether married or not married, no compensation will be payable. See 11th report Cmnd. 6291 (November 1975).
10 This is certainly true of the Social Security field. See the (Fisher) Report on Abuse of Social Security Benefits. Cmnd. 5228 (March 1973)Google Scholar, para. 330.
11 See especially Living together as Husband and Wife (1976)Google Scholar, S.B.A. paper 5.
12 See especially CG 214/50 (KL); R(G) 11/59; R(G) 2/64; R(G) 5/68; R(G) 2/72.
13 In Helby v. Rafferty, The Times, 5 May 1978Google Scholar, Stamp L.J. defined the problem in this way: “Did the union have such permanence that the ordinary man could say that the parties to it were members of the same family?” The Court of Appeal held that the couple in that case were not “members of the same family,” notwithstanding that for five years they lived together, shared expenses, went out together, went shopping together, and that when the woman became ill, the man “did everything for her that a loving husband could do.” Stamp L.J. said that one difficulty in deciding the meaning of words was whether one should listen to a vociferous minority or a silent majority. Stamp L.J. seemed influenced by the fact that Miss Helby “preferred an arrangement that allowed her independence.”
14 The problem of a man who has exercised his legal right by his religious law to marry two wives is not discussed in this article. It is considered in a forthcoming article by the present writer “Social Security and ethnic minorities” to be published in the Journal of Social Welfare Law.
15 Domestic Proceedings and Magistrates' Courts Act 1978, s. 1 (a). She can apply also to the High Court under The Matrimonial Causes Act 1973, s. 27 as amended by Domestic Proceedings and Magistrates' Courts Act 1978, s. 63. Either party to a marriage can apply to the magistrates for an order for protection. Domestic Proceedings and Magistrates' Courts Act 1978, s. 16.
16 Supplementary Benefits Act 1976, Sched. 1, para. 3 (1).
17 Supplementary Benefits Act 1976, s. 17.
18 Supplementary Benefits Act 1976, ss. 18, 25.
19 Supplementary Benefits Handbook (D.H.S.S.) S.B. Administration Paper 2 (February 1977), p. 16Google Scholar (para. 19).
20 Social Security Act 1975, s. 21.
21 Social Security Act 1975, s. 32.
22 Social Security Act 1975, ss. 24, 25, 26. Social Security Pensions Act 1975, ss. 13, 15.
23 Social Security Act 1975, s. 37. Social Security (Invalid Care Allowance) Regulations 1976, reg. 6.
24 Social Security Act 1975, s. 44. Social Security Benefit (Dependancy) Regulations 1977, reg. 9.
25 Family Income Supplements Act 1970, s. 1 (1) (b).
26 Non-contributory in the sense that the invalidity pension (payable after 196 consecutive days of incapacity) is not based upon the insurance principle of contributions being a requisite for entitlement.
27 The pension was extended to such women in November 1977.
28 Social Security Act 1975, s. 31. This allowance is payable when a marriage is terminated by divorce and the woman has the care of the child.
29 See , Hayton and , Tiley, Elements of Capital Transfer Tax (London 1975), p. 107.Google Scholar
30 The allowance for the tax year 1978–79 is £1535.
31 See , Tiley, Revenue Law, 2nd ed. (London 1977), p. 112.Google Scholar
32 Inheritance (Provision for Family and Dependants) Act 1975, s. 1 (1) (e). S. (3) of the Act defines “maintained” in the sense that the deceased was making a voluntary but substantial contribution in money or money's worth towards the reasonable needs of that person.
33 Inheritance (Provision for Family and Dependants) Act 1975, s. 1 (1) (a), (2) (a). By s. 25 (4) of the Act, a person, who in good faith entered into a void marriage, can apply under section 1 (1) (a) of the Act as the surviving spouse.
34 Illustrative of this pre-eminent position is the rule that, unless made in contemplation of marriage, a marriage revokes all previous wills.
35 Samuels, Alec in (1976) 39 Modern Law Review at pp. 183Google Scholaret seq., where he writes “to give the mistress the privileges of widowhood when she did not assume the duties of marriage is morally and socially unjust.”
36 1974–75 (Report) H.C. 553, paras. 43 et seq.
37 In fact, s. 1 (1) lays down three provisions:
(a) a provision restraining the other party… from molesting the applicant;
(b) a provision restraining the other party… from molesting a child living with the applicant;
(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included.
38 Where a person is arrested under this provision, he must be brought before the judge within 24 hours of his arrest. There is, however, no power contained in the Act for the judge to demand continuing custody beyond 24 hours. The court however have such powers by virtue of the Rules of Court. Lewis v. Lewis, The Times, 7 November 1977Google Scholar, expanding upon the judgment reported in The Times, 1 November 1977Google Scholar; [1978] 2 W.L.R. 644.
39 See B. v. B. [1978] 2 W.L.R. 160Google Scholar; Cantliff v. Jenkins [1978] 2 W.L.R. 177.Google Scholar In B. v. B. the man was the sole tenant. In Cantliff v. Jenkins the parties were joint tenants.
40 [1978] 2 W.L.R. 553.
41 [1978] 2 W.L.R. 160. See especially the judgment of Bridge L.J. at pp. 167, 168.
42 [1978] 2 W.L.R. 182, 191.
43 [1978] 2 W.L.R. 553.
44 See also Hopper v. Hopper, The Times, 31 May 1978.Google Scholar
45 The Matrimonial Homes Act 1967.
46 As amended by The Domestic Violence Act 1976, ss. 3, 4.
47 If they were married, the wife could register a land charge or a caution under the 1967 Act which would effectively prevent the sale of the property.
48 The 1976 Act is silent on the criteria for the exercise of jurisdiction, but one can presume that the court will adopt the test developed in Bassett v. Bassett [1975]Google Scholar Fam. 76, namely a “balance of hardship.”
49 [1975] 1 W.L.R. 1346. This case was distinguished in Horrocks v. Forray [1976] 1 W.L.R. 230.Google Scholar See Barton in (1976) 92 L.Q.R. 168.
50 [1975] 1 W.L.R. 1346, 1349.
51 Italics added.
52 It may be, however, that moving to a new home itself is sufficient and adequate consideration.
53 See Chandler v. Kerly, The Times, 13 March 1978Google Scholar, where the Court of Appeal held that the contractual licence in that case was terminable upon reasonable notice and that 12 calendar months was reasonable.
54 If the property were in joint names, the licence could not be revoked unilaterally. The licence, in this situation, would “be irrevocable in the sense that [the woman's] agreement is needed before it can be ended.” Cf. W. v. W. [1975] 3 W.L.R. 752Google Scholarper Baker P. at p. 757.
55 Upfill v. Wright [1911] 1 K.B. 506.Google ScholarFender v. St. John Mildmay [1938] A.C. 1, 42.Google Scholar One must assume that, although the principle of unenforceability is still part of English law, the “community's moral standards about sexual relationships outside marriage have changed,” thus “the rationale for invoking public policy to strike the contract down has gone.” Dwyer in (1977) 93 L.Q.R. 386, 393.
56 Matrimonial Causes Act 1973, Pt. II. The length of a marriage is a relevant consideration in reallocating the couple's resources after a divorce. The President of the Family Division is on record as saying that a period of premarital cohabitation should not be taken into account. Campbell v. Campbell [1976] 3 W.L.R. 572, 577.Google Scholar
57 Law of Property Act 1925, s. 27 (2). The court, however, can order a sale under the Law of Property Act 1925, s. 30, which they would normally do if the purpose for which the trust had been created had come to an end.
58 See W. v. W. [1975] 3 W.L.R. 752.Google Scholar See however Lawrence v. McFarlane, The Times, 18 May 1976Google Scholar, where the judge held that the proceeds of the property be distributed in the proportions in which they had contributed to the purchase: not least because the evidence showed neither that the woman and the man were equally entitled in equity, nor that the woman was a mere nominee. It is submitted that this view of the law ignores the usual presumption that the beneficial interests follow the legal title (which was joint) unless there is evidence to the contrary—which there was not!
59 Unreported. 4 July 1975. Mentioned in some detail in Lawrence v. McFarlane, The Times, 18 May 1976.Google Scholar
60 See Cooke v. Head [1972] 1 W.L.R. 518Google Scholar, Eves v. Eves [1975] 1 W.L.R. 1238.Google Scholar In the first case, the woman worked a cement mixer, and in the other case, the woman helped in the house by breaking up concrete with a sledge hammer.
61 Rent Act 1968, Sched. 1, para. 3.
62 See for instance Dyson Holdings Ltd. v. Fox [1976]Google Scholar Q.B. 503 and see the earlier case of Gammans v. Ekins [1950] 2 K.B. 328.Google Scholar The Court of Appeal felt that the concept of permanence was lacking in Helby v. Rafferty, The Times, 5 May 1978.Google Scholar See before nn. 4, 13. In Joram Developments Ltd. v. Sharratt, The Times, 7 March 1978Google Scholar, the Court of Appeal decided that an adult man and woman who establish a platonic relationship could not, as a matter of law, establish a “familial nexus.”
63 Matrimonial Homes Act 1967, s. 1 (5).
64 The Criminal Injuries Compensation Board will be able to entertain claims from the spouse and dependants of the victim in the event of death. Non-married partners are excluded. Criminal Injuries Compensation Scheme para. 12. See 11th Report, Cmnd. 6291 (November 1975).
65 R. v. Miller [1954] 2 Q.B. 282.Google ScholarR. v. Clarke [1949] 2 All E.R. 448.Google Scholar
66 It is possible, however, that the presumed agency from cohabitation, whereby the woman can pledge the man's credit for necessaries covers a mistress as well as a wife.
67 [1976] 1 Q.B. 85.
68 [1976] 1 Q.B. 85, 101.
69 See especially Helby v. Rafferty, The Times, 5 May 1978.Google Scholar
70 Except of course to the extent that the woman may seek an affiliation order if a child results from the relationship.
71 K., Fleischmann, “Marriage by contract: Defining the terms of Relationship” (1974) 8 Family Law Quarterly 27.Google Scholar