Family Law assessment title
Law Essay Title
“If it were as simple as saying people have the choice either to cohabit or formalise their relationship by marriage or civil partnership, then perhaps the need for law reform would not be so urgent. It is by no means as simple as that” (Taken from ‘Co-habitation, Law Practice and Precedents’ (3rd edition): Helen Wood, Denzil Lush and David Bishop: Family Law 2005). To what extent do you consider the current provisions regulating co-habitation, and the new provisions covering civil partnerships, leave heterosexual cohabitants in a position of inequality under the law?
Law Assessment
Part IV of the Family Law Act (FLA) 1996 enables spouses and former spouses, cohabitees and former cohabitees to make applications to the High Court to transfer tenancies in relation to properties and for occupation orders in circumstances of domestic violence, and since the implementation of Civil Partnership Act 2004 civil partners and former civil partners can also take the benefit of this provision. Arguably, the introduction of the FLA 1996 aims to address the historical gap of rights between cohabitees and married couples in relation to property rights. This has now been amended by the Domestic Violence, Crime and Victims Act (DVCVA) 2004. Whether this gap has been adequately addressed is discussed below, by means of comparisons with the relevant provisions of the CPA 2004.
Prior to the Company Act (CA) 1989, transfers of property could only be made by a parent to benefit a child being cared for, not to the other spouse or cohabiting partner. Part IV of the FLA 1996 deals with occupation orders to be made in circumstances of domestic violence. It is gender-specific and defines cohabitees as member of different sexes 1, not same sex couples, which are now covered by the Civil Partnership Act (CPA) 2004. However, same sex couples who have not formalised their relationship through civil partnership have now been included in the definition of cohabitees in the DVCVA 2004, which amends FLA 1996.
In considering an application to transfer a tenancy, the court has to have regard to all circumstances of the case, including circumstances in which the tenancy was granted, matters under section 33(6) FLA 1996; housing needs, housing resources, financial resources, likely effect of any order, or refusal thereof on the health and safety of a child or the parties.
However, in the case of both partners being cohabitees, there are further considerations, including the nature of the parties’ relationship, duration of the cohabitation, whether there are or have been any children who are the children of both parties or for whom both parties have had parental responsibility for, the length of time the parties have lived together and the suitability of the parties as tenants. This is not required for spouses or former spouses, so accordingly, the length of the marriage, whether there are any children for which the couple have parental responsibility and the suitability of a married couple is not relevant when the court are considering making an order. Therefore, the criteria required to satisfy an application for a cohabiting or former cohabiting couple is far more stringent than for married couples.
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1 section 62
A spouse’s rights are enshrined in Part IV of the FLA 1996. Section 30(1) discusses matrimonial home rights, that is, where one spouse has a legal or a beneficial interest in a property and the other has not. The matrimonial rights include if that non-legally owning spouse is in occupation, he/she has a right not to be evicted or excluded from the home by the other spouse except by court order under section 33. If the non-owning spouse is not in occupation, he/she has a right by court order to enter into and occupy the home. Furthermore, if the spouse entitled to occupy the home makes any payment or action towards satisfaction of any liability of the other spouse in respect of rent, mortgage payments or other outgoings, this is regarded as being as good as if made or done by the other spouse. The person receiving such payment can treat that payment as if it has been made by the other spouse. If a spouse is entitled to occupy a home by reason of an interest of the other spouse under a trust, the trustees also have all the above rights.
Matrimonial rights continue during the marriage, if an order under section 35 has been made, or if a spouse has rights of occupation. They operate as a charge over the property 2. They end on death of the spouse, or termination of the marriage, unless there is a court Order under section 33(5). Cohabitees can only rely upon trusts and occupation orders to transfer tenancy.
In relation to spouses, if the applicant has matrimonial home rights and the respondent is the other spouse, an order under section 33 made during the marriage may provide that those rights are not brought to an end by death or termination of the marriage. This means that spouses have further protection in relation to their matrimonial home rights.
In relation to sections 35 and 36 FLA 1996 relating to occupation orders for spouses and cohabitees respectively, it can be seen that the provisions mirror each other, aiming to achieve as much consistency as possible. These sections are applied where one former spouse or cohabite is entitled to occupy a dwelling-house by virtue of a beneficial or legal estate or interest or contract with the other former spouse not so entitled. The former spouse not so entitled may apply to the court for an order under this section against the other former spouse.
Where there is a secure tenancy under the Housing Act (HA) 1985, a spouse or cohabitee who is not a tenant has to acquire rights of occupation under section 36 of the FLA 1996 before the court has power to order a transfer of tenancy under section 53 and Schedule 7 of HA 1985.
These criteria include the housing needs and resources of each party and any relevant child; financial resources of the parties; the likely effect of any order or decision by the court not to restrict or grant access to the home on health or safety grounds of the parties and any relevant child; conduct of the parties in relation to each other; nature and length of the parties' relationship; any children who are children of both parties or for whom both parties have or have had parental responsibility; length of time elapsed since the parties ceased to live together; any pending proceedings between the parties and an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents or relating to the legal or beneficial ownership of the home). The DVCVA 2004 has amended the criteria for cohabitees, that when examining the nature of the relationship, regard is now to be had to the level of commitment in it 3.
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2 section 31
3 section 2(2)
This was shown in Gay v Sheeran 4, in which the tenancy was in joint names of the leaving cohabitee and the previous cohabitee, and the remaining cohabitee had to satisfy section 81 HA 1985, the tenant condition, which requires that the criteria for an occupation order under section 36 FLA 1996 must be satisfied for her occupation to be recognised by the leaving cohabitee under section 30(4) FLA 1996.
The inequalities are evident when regarding section 37 and 38 FLA 1996, relating to both spouses or former spouses and both cohabitees and former cohabitees with no right to occupy, but actually occupy the former shared home. Under these sections, these parties can apply for Orders against the other. The difference is that under section 37, there are no criteria required, but for section 38, the criteria include the housing needs and resources of each of the parties and any relevant child; financial resources of each of the parties; likely effect of any court order or decision not to exercise its powers under section 37(3), on grounds of health, safety or well-being of the parties and any relevant child; conduct of the parties in relation to each other; whether the applicant or any relevant child is likely to suffer significant harm from the respondent and whether the harm likely to be suffered by the respondent or child is as great as or greater than the harm caused by the respondent which is likely to be suffered by the applicant or child. This inevitably greatly raises the standard required for cohabitees to apply for these orders, as compared to spouses doing this.
Notably, in section 41 FLA 1996, it is stated that the court, when required to consider the nature of the relationship between cohabitees, has regard to the fact that they have not given each other the commitment involved in marriage. This has now been repealed by section 2 DVCVA 2004.
The Civil Partnership Act 2004 covers relationships between two people of the same sex, when they register as ‘civil partners’. In relation to occupancy rights, where one civil partner in a civil partnership is entitled to occupy a family home of the civil partnership and the other civil partner is not so entitled, the non-entitled partner has the right to continue to occupy the family home if in occupation; a right to enter into and occupy the family home if not. The partner which is not entitled can make payments due by the other partner in respect of rent, rates, secured loan installments, interest or other outgoings; to perform any other obligation that the other partner has; enforce the performance of an obligation by a third party to the other partner; carry out essential repairs that the other partner should do; undertake non-essential repairs or improvements as may be authorised by an order of the court and take other steps necessary for the purpose of protecting the occupancy rights of the other partner. These criteria are analogous to those in section 30 FLA 1996.
Any payment made or any obligation performed has the effect in relation to the rights of a third party as if the payment were made or the obligation were performed by the partner entitled to occupy the home, and the performance of an obligation has the effect as if it had been enforced by the entitled partner 5. The court can make an order requiring expenditure by either partner when regarding financial circumstances.
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4 [1999] 2 FLR 519
5 section 101(2)
Under section 103, an applicant can apply for occupancy orders. The criteria for such orders include conduct of the partners, whether in relation to each other or otherwise; respective needs and financial resources of the partners; needs of any child of the family; extent to which the family home and/or any item of furniture is used for business purposes and whether the partner entitled to remain has offered the other partner any suitable alternative accommodation. It must be noted that criteria required for cohabitees is absent from this list, such as nature and length of relationship and length of time elapsed since breakdown of the relationship. Therefore the standard required for cohabitees is still higher than that set for civil partners.
There is no corresponding provision for civil partners in relation to both partners not having a right to occupy, as in sections 37 and 38 FLA 1996. However, in relation to transfer of tenancies, when the court determines whether to grant an application under subsection (1), the court has to have regard to all the circumstances of the case including the criteria specified in section 103(3), the suitability of the applicant to become the tenant and the applicant's capacity to perform the obligations under the lease of the family home. It is evident that these criteria are less stringent than those required for cohabitees under Part IV FLA 1996, which requires the nature of the relationship and other factors mentioned above to be considered.
In conclusion, the DVCVA 2004 does not arguably add much substance to the impact of the FLA 1996, as it only removes the potentially discriminatory effect of section 41 FLA 1996 in regarding why the parties have not given each other the commitment of marriage as a consideration, adds same sex couples into the definition of cohabitees and expand on the criteria of nature of relationship under section 33 FLA 1996. It can be seen that the courts appear to still favour the formalisation of unions by means of marriage or civil partnership, as in the former there are a whole host of assumed rights by virtue of marriage, and in the case of cohabitees, there continues to be an emphasis on the requirement to prove stringent conditions to obtain transfers of tenancy or occupation orders in circumstances of domestic violence. Therefore, in such circumstances, a married person is in a far better position to achieve the protection of the law than a cohabitee. When a couple make the choice to cohabit rather than formalise their union via marriage or civil partnership, they take the risk that the burden will be upon them to prove that they satisfy the rigid criteria in the relevant sections of the FLA 1996 or CPA 2004.
BIBLIOGRAPHY
Cohabitation Law, Practice and Precdents (3rd edition) 2005 (Family Law): Wood, Lush and Bishop, pp 42-59
Civil Partnership Act 2004: www.opsi.gov.uk/acts/acts2004/20040033.htm
Domestic Violence, Crime and Victims, Act 2004:www.opsi.gov.uk/acts/acts2004/20040028.htm
Family Law Act 1996: www.opsi.gov.uk/acts/acts1996/1996027.htm
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