Cohabitation

Introduction
Evidence suggests that one in eight British couples is unmarried. While many of these
couples choose to cohabit rather than to marry or register a civil partnership, many
are unable to marry, while others may be unable to agree about whether or not to
formalise ther relationships.
This chapter will consider the existing differences between married and unmarried
couples, and between same-sex couples who have registered a civil partnership and
those who have not.
In 1998 the government published a discussion paper entitled Supporting families
(1998, Home Office) which outlines its commitment to strengthening marriage with
a view that marriage is the best relationship in which to bring up children. More
recently, the coalition government has debated the possibility of using the tax system
to provide benefits to couples who formalise their relationships. With this in mind, the
chapter will conclude by asking whether the law is right to draw distinctions between
married and unmarried couples. Does the law discriminate or simply differentiate?
This is an issue which is worth considering throughout your study of Family law.

 What is cohabitation?

There has always been a difficulty in defining cohabitation

because the law recognizes it can take so many different
forms. A cohabiting couple could be two students living
together, it could be a boyfriend and girlfriend who are
thinking about marrying or it could be a couple who have
lived together for many years and have decided never to get
married. The law has never been coherent in its treatment of
cohabitants because of these different forms of relationship.
After all, should the couple who have lived together
for many years acquire more rights than the couple
who are two students at university? The law has never
made the answer clear.

The need to define

There have been occasions when the law has had to consider the question of when a
couple are cohabiting for fear of causing real injustice against those who are married.
One example is in the distribution of welfare benefit. It would be manifestly unfair
if a spouses income was taken into account for the calculation of benefit but a
cohabitants income was not considered for the purposes of calculation. It would also
involve the state having to pay substantially more money in benefit and this is why an
attempt at definition has had to be made.
The underlying policy of calculation of benefit is that where a couple live together
as married, the fact that they are not legally married should not make their
position
either better or worse than a couple who are in fact married. Proving this may
sometimes involve secret investigations by officials to ascertain who cohabits and who
does not. In other legal contexts, case law has proven most useful at showing us what
criteria the law views as important when defining cohabitation.

 A working definition?
The leading case for the purposes of ascertaining if cohabitation is taking place is
Kimber v Kimber [2001] 1 FLR 383. While this case concerns the cessation of
maintenance under the MCA, the criteria formulated are useful guidance in terms
of providing a working definition of cohabitation. In Kimber, Tyrer J suggested that
questions to ask when considering whether a couple are living as husband and
wife would include the following.
Are the parties living together under the same roof? If the parties live
together
in the same household and are only absent for the purposes of illness, holidays or
work then they are living under the same roof.
Do the couple share in the tasks and duties of daily life? If the parties
share
mutuality in the daily round of tasks and duties then this question is answered
in the positive.

Kimber v kimber
Abstract:H and W were divorced in December 1998. By consent, it was ordered that H would
pay GBP1000 per month until W either remarried or cohabited for more than three months. L
moved into W's bed and breakfast establishment in December 1998 and they became
engaged. In January 1999 W went to America with L to meet his family, following which L
returned to the United Kingdom on March 5, 1999 and continued to live with W. On April 20,
1999 H told W that he would stop the payments because of her cohabitation. W arranged for L
to become the tenant of a friend, but he spent some nights with her, helped with the business,
and took part in the upbringing of W's dependent child. W denied cohabitation and sued for
arrears of six months' maintenance.
Held, that although a complete list of factors indicative of cohabitation could not be given,
theSocial Security Contributions and Benefits Act 1992and the authorities indicated that it
was relevant that W and L were living in the same household save for the arrangement
brought about by H's warning and had an established and continuing sexual relationship. The
stability of the relationship was evidenced by their financial arrangements. Further, L had a
close bond with W's child. The motive for W's arrangements and the denial of her engagement
to L was her desire to continue to receive maintenance. On the facts, a reasonable person
would have considered L and W to be cohabiting. However, as the evidence showed that the
cohabitation had commenced only at the beginning of March 1999, H had stopped payments
one month early and so was liable to pay W GBP1000 under the terms of the consent order.

 Does the relationship have stability and permanence? The question to be asked
is whether the living together is a brief association? Has a child been born to
the parties living together? Are the couple just sharing on an occasional basis?
Often time will demonstrate whether the relationship has some stability and
permanence.
How have the parties arranged their finances? Is there any financial support from
one of the parties to the other? Do the parties share household expenses? Of
course people can share household expenses and not be a cohabiting couple and
people can also live together in relationships where one party pays for everything.
Any evidence will be considered by the court.
Do the parties have an ongoing sexual relationship? A sexual relationship is a
normal feature of a marital relationship and so this is something for the courts to
consider. Its absence at a particular time will not disprove cohabitation, just as its
presence at a particular time would not prove it. The key question is whether there
has ever been a sexual relationship? If not, the courts would be unlikely to view a
couple as cohabiting.

 Have the parties got children? And how do the parties act towards each
others
children if such children are present? Here the courts will consider whether the
parties share children. This is evidence of prior sexual relations and living together
as a married couple with a family in all but name. If one party has children which
the other party looks after or appears to operate as a surrogate parent, then this
too would be evidence to support cohabitation.
Finally, would the reasonable person with normal perceptions, looking at the
couples life together, deem this to be an unmarried cohabiting couple? This is
a
question of public acknowledgement. Do the parties present themselves to other
parties as a couple? If they do, this may not mean they are presenting themselves
as a married couple as they may want to retain their identity as an unmarried
couple. Such motivation will not prevent them being regarded as a cohabiting
couple for the purposes of the law.

The message from these criteria seems to be that the courts,

when pressed, will consider substance over form. If it appears
that a couple are acting, whether overtly or covertly, as a
married couple then the law will consider the household
income. The problem as we shall see later on is that if
couples are to be treated as cohabitants when it suits the
state, then surely this should also be the case when it does
not suit the state. If the state gains a benefit but is not
prepared to bear the burden, then we have to consider
whether any existing distinctions are there to discriminate or
differentiate.

Activity 3.1
Julian and Sue live together in a three-bedroom house. They have done so for eight
years. Julian has a child, Little Tim, who also lives in the house. Julian and Sue have
separate bedrooms. They often go out together for their leisure activities. People
who dont know them often think they make the perfect couple. They share the
household expenditure and Sue often collects Little Tim from school. Sue regularly
does the household shopping.
Recently, Sue became unemployed and decided to apply for state benefit. Under
the criteria established in Kimber v Kimber [2001], would the courts be able to take
Julians income into account when deciding on the amount of state benefit to grant
Sue?
Under the test in Kimber v Kimber there does seem to be some evidence of
cohabitation. Sue and Julian have lived in the same house for eight years suggesting
some stability and permanence. They often gain public acknowledgement in terms
of being the perfect couple. Sue is not, it appears, the mother of Little Tim but does
engage in the tasks and duties of daily life as she collects Little Tim from school and
does the household shopping. Would the reasonable person with normal perceptions
look at the couples life together and regard them as husband and wife? On this basis
the courts may decide to take Julians income into account as Sue is claiming for state
benefit and the state may assess her as living together as if they were husband and
Wife.

Be careful, though, in automatically reaching this conclusion. Julian and Sue have
separate bedrooms, indicating no sexual relationship, and while there may be public
acknowledgement this appears to be from people who do not know them. We are
told
Sue picks up Little Tim from school so does this mean she is acting towards the child
in a parental way? Would the reasonable person with normal perceptions now doubt
they were living as man and wife?
What if Sue were Julians sister? Nothing in the question refutes that and yet obviously
they could never be seen as living as husband and wife as they would be committing
the crime of incest if they were having sexual relations and the law would not permit
them to marry under the MCA. What if Sue were just a friend of Julians? We have
assumed that because they are friends and do engage in household tasks that they are
cohabiting. If she is just a friend, would they be living as husband and wife? In
all but having sexual relations they would be. Bear in mind that appearances can be
misleading.

Summary
The law has always struggled to define what is meant by
cohabitation due to the varying types of relationship
which could fit under this umbrella term. Despite this
difficulty the law has been prepared to attempt a
definition in the area of assessment for state benefit. The
criteria used include membership of same household,
sharing daily life, stability, financial support, sexual
relationship, children and public acknowledgement. Such
criteria are useful to see what the state regards as
hallmarks of a cohabiting relationship.

 Legal differences between unmarried and married

couples
The following provides a summary of the legal differences
between unmarried and married couples. (Most of these
differences also apply where a same-sex couple has
entered into a civil partnership where the term spouse
is used it applies also to civil partners.)

Formalities at the end of a relationship

By virtue of the law of nullity, divorce and dissolution it becomes clear that the law
closely regulates the beginning and end of a formal relationship. The same cannot be
said about an unmarried couple. There is no formal register of cohabiting couples,
similar to a marriage register, and so the state has no part to play in the beginning
or
end of such a relationship. This means that the law, unlike with marriage, can take no
regulatory position as to who cohabits with whom. Such formalities are there but they
should not be viewed as at all restrictive and it would be nave to overestimate their
importance. It is not hard to get married and it is not hard to get divorced. It cannot
be said these formalities are the most important concerns to any couple whether it be
upon marriage or divorce.

Children and parentage

Until the FLRA the distinction between legitimate and illegitimate children was still
clear. Such distinctions now rarely exist and yet the position of the unmarried father
is still very different to that of the married father. When you consider parentage in
Chapter 8 of this subject guide you will see that a married father is afforded greater
status than an unmarried one. Every mother has parental responsibility and a married
father will also automatically gain parental responsibility. An unmarried father does
not gain parental responsibility automatically unless he is registered on the childs
birth certificate. If he is not registered then he must lodge a parental responsibility
agreement at the court or he has to apply to the court under CA s.4 to gain a parental
responsibility order. The division is of more symbolic than practical significance. Courts
are keen to grant such orders and any need for parental responsibility will usually only
appear if there is a dispute about medical treatment or the childs upbringing. The
justifications for such a distinction can be found in Chapter 9.

 Financial support
The law concerning financial provision both during and at the end of a marriage or
civil partnership does not apply to cohabiting couples. Financial obligations during the
relationship are difficult or impossible to enforce, but on divorce/dissolution, however,
the court has the power to make significant orders as to the allocation of property and
of parties assets. For married and divorcing couples, these powers will be considered
in detail in Chapter 6 of this subject guide. All that an unmarried couple can do upon
separation is seek a declaration from the court as to who owns what property. The
devices used to make such calculations are usually equitable and can see unmarried
couples property divided the same way as that of married couples would be. Although
there is a wide operation of discretion for the division of assets under the MCA and
CPA, the rules in equity demand far more discretion and conduct may play a far greater
part in its enforcement. Therefore, a distinction does remain. That said, liability under
the Child Support Acts for the maintenance of children applies to both married and
unmarried parents (see Chapter 7 of this subject guide).
It has become more popular in recent years for cohabiting couples to enter into
binding cohabitation contracts which can be court enforced. The status of these
contracts and when they will be enforceable was discussed by Charles J in Sutton v

Sutton v
Mishcon de Reya
Summary:There was a distinction to be made between a contract for sexual relations outside of
marriage and a contract between persons who were cohabiting in a relationship that involved such
sexual relations. Accordingly, there were no prospects of succeeding in a professional negligence action
against solicitors who acted on instructions to draft a deed of cohabitation that purported to bind the
parties to live in a relationship of master and slave.
Abstract:M and G, two firms of solicitors, sought to strike out claims against them for professional
negligence. S had sued M and G who had acted for him; M in drawing up a "deed of cohabitation" and G
in drafting a "deed of separation". The deed of cohabitation referred to a document entitled a "statement
of trust" which indicated that S and T had agreed that their relationship would be one of "master and
slave" with S as the master. The solicitor drawing up the deed advised both men that the agreement
would probably not be enforceable and advised T to obtain independent advice. The deed of cohabitation
provided that T would transfer all his property to S. T purchased a property and transferred it into S's
name. However, the relationship ended before cohabitation started when it was discovered that S was
HIV positive. T then required S to leave the property and, after advice from G, S signed a deed of
separation transferring the property to T. S then argued that the drafting of the deed of cohabitation had
been negligent and that G had not informed him that he could acquire a beneficial interest in the
property. M and G argued that the agreements were unenforceable.
Held, granting the applications and striking out both claims, that although a property agreement
governing the property relationship between adults who wanting to cohabit would be enforceable, the
agreements in the instant case represented an attempt to couch a sexual relationship in property terms.
As such neither agreement was enforceable. Further, agreements of this nature could not withstand
challenges on the grounds of lack of intention to create legal relations, undue influence or
misrepresentation.

Inheritance and succession

When a party dies intestate (that is, without having made a will)
then all property passes to the spouse. If there is no spouse, but
only a cohabitant, then no such automatic passing of
property takes place. To effect this passage, the party would have
to apply under the Inheritance (Provision for Family and Dependents)
Act 1975 for an order which would then grant them a portion of the
estate. They must have cohabited for two years.
This means that if a party to a relationship is bereaved, they have to
gain a court order to put them in the same position as a married
couple. For an example of a case dealing with whether someone was
living as the wife of the deceased, see Re Watson [1999] 1 FLR 878.

Re Watson [1999]
Abstract:Following the death of W, G applied for reasonable financial provision from his estate
on the ground that she had lived in W's house as W's wife for more than two years before his
death for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975 s.1(1A).
G, born in 1931, had been involved in a relationship with W since 1964 and had moved into his
house in 1985, contributing towards half of the cost of utilities and undertaking all housekeeping
duties, while W continued working and provided income for the majority of household expenses.
The Crown, to whom W's entire estate would otherwise pass as bona vacantia, opposed the
application, contending that the financial arrangement between G and W suggested their
relationship was a house sharing arrangement rather than one between spouses.
Held, allowing the application, that, having regard to the wording of s.1(1A)(b) and the purpose of
the Act, the internal nature of the relationship was more significant than its external
appearance. However, the correct approach to deciding whether two people lived together as
man and wife was to ask whether a reasonable person with normal perceptions would
take such a view, always bearing in mind the multifarious nature of marital relations.
In the instant case, as G and W had lived alone together for the last 10 years of W's life, it had to
be concluded that G had lived as W's wife for the purposes of s.1(1A). Although the parties had
not shared a bedroom or enjoyed sexual relations during that period, those circumstances were
not unusual in married couples in their mid-fifties, nor was it unusual for two people who had
lived alone for many years, particularly where they were past child-bearing, to agree their
prospective contributions towards living expenses when they decided to marry.

 Taxation and benefits

If a spouse dies then his or her property can pass to
the living spouse without being subject to any
inheritance tax under s.18 Inheritance Tax Act 1984.
This provision was always useful to avoid a situation
where, upon death of her husband, a wife would have to
sell the matrimonial home to pay inheritance tax. The
same is true for capital gains tax where a transfer between
spouses does not give rise to a chargeable gain under s.32
Finance Act 1988. These benefits are not afforded to
unmarried couples.

Citizenship
If you are not a citizen of the UK or one of its colonies,
then you do not acquire citizenship just because you
marry someone who is a citizen. This law is governed by the
British Nationality Act 1981. There are various methods of
naturalisation (with which you do not have to concern yourself)
but, needless to say, requirements for naturalisation of a
spouse are less restrictive, under s.6(2) and Schedule 1, para.3
of the British Nationality Act 1981, than for other people. A
cohabitant would find it more difficult to become naturalised
than a spouse would. There is a requirement for leave to enter
the UK and remain, which in practice is often given to a spouse.
Such leave is not so easy to obtain for a cohabitant.

Statutory succession to tenancies

Statute provides rights to a tenants family so that they
may succeed to the tenancy upon death of the tenant.
Family was initially interpreted by the Court of Appeal
in Fitzpatrick v Sterling Housing Association [2000] AC 27
not to include homosexual couples. The House of
Lords reversed this position [2000] 1 FCR 21. Family and
husband and wife applies to heterosexual and
homosexual cohabitants or same-sex or heterosexual
couples. No distinction is now made between married
and unmarried couples and this was confirmed in
Ghadain v Godin-Mendoza [2004] 2 FCR 21.

Ghaidan v Godin-Mendoza [2004] UKHL 30

Human Rights: Private life; prohibition of discrimination
Whether a section referring to a person who had lived as the wife or
husband of a deceased could be interpreted to include same-sex couples.
The case concerned the right of succession to a tenancy of the spouse of
the deceased or the person who had lived with them as his or her wife or
husband. On a straight interpretation of the section, the applicant could
not benefit as he was the homosexual partner of the deceased man.
It was found by the House of Lords that such an interpretation would
render the section incompatible with Art 8 of the Convention, when read
along with Art 14, in that it discriminated against same-sex couples. It
was held that section 3 of the Human Rights Act 1998 allowed the section
to be read as applying to homosexual couples.

Domestic violence
The FLA provides a remedy of an occupation order or nonmolestation orders for victims of domestic violence
(considered in detail in Chapter 5 of this subject guide).
Both spouses and cohabitants are associated persons
under s.42 of the FLA as amended by the DVCVA, and so
can apply for the non-molestation injunction. Cohabitants
can also apply for an occupation order under s.33 or s.36 of
the FLA. A s.33 order is easier to acquire because it
applies to people who have proprietary rights in the
property. These rights are not required in s.36 but it will
be more difficult to gain these orders without those rights.

 Fatal Accident Act 1976

The Fatal Accident Act 1976 allows a spouse of a deceased
person killed in an accident to claim damages under
certain specific circumstances. A cohabitant will be able to
qualify for compensation but only if he or she has lived
with the deceased as an unmarried couple in the same
household for a specified period, which at present is two
years. No such restriction is placed upon a married couple.

Activity 3.3
Trisha lives in Trishas flat with Marcus and their one-year-old child Ben. The
couple are not married. One day there is a motorcar accident. Trisha and Ben were
passengers in the car. Trisha died at the scene and is intestate and now the hospital
has to operate on Ben.
What problems can you foresee emerging as a result of Trisha and Marcuss
unmarried status?
The three problems focus on Marcuss rights over Trishas property, any claim under
the Fatal Accidents Act 1976 and his rights over his child Ben.
With reference to the property, if Trisha and Marcus were married the flat would
automatically become his upon her death if she dies intestate. But as they are not,
there will be no automatic passing of the property to Marcus. Marcus would have to
apply for an order under the Inheritance (Provision for Family and Dependents) Act
1975 but he may be restricted because he may not have lived with Trisha for two years
and this is required for cohabitants.
The same criteria will be used to decide whether he can recover compensation under
the Fatal Accidents Act 1976. They must have been cohabitants for two years prior to
the accident.
Does Marcus have a parental responsibility order? Is he registered on Bens birth
certificate? Without the parental responsibility order he may not be able to consent to
Bens medical treatment (see Chapter 9).

Criminal law
There are some differences in the criminal law between married and
cohabitant
couples. Some of the key differences are no longer in place but some are
still apparent.
Rape
The law used to state that a man could not rape his wife (i.e. that forced
intercourse with ones wife did not constitute rape). This marital
exemption to the law of rape was abolished in R v R (Rape: Marital
Exemption) [1991] 4 All ER 481. The Criminal Justice and Public Order
Act 1994 confirmed this abolition. There appears now to be no difference
between the rape of a wife and the rape of a stranger, although the
nature of the relationship may have some impact on sentencing

Actual bodily harm:

Two cases in the 1990s gave rise to the immediate and arguably simplistic view that a
person could occasion actual bodily harm upon a person under s.47 if they were part
of a married couple (R v Wilson [1996] 3 WLR 125), but could not if they were a group of
gay men indulging in sado-masochistic activities (R v Brown [1993] 1 AC 212). The case
of R v Emmett (unreported) suggests that no such distinction can be sustained and the
law appears to frown upon anyone inflicting injuries upon another unless it falls within
a lawful exception.
Coercion to crime:
If a wife commits a crime due to threats from her husband, then she may plead the
defence of coercion under s.47 of the Criminal Justice Act 1925. This is not permitted
for crimes of murder or treason. The defence is analogous to duress although unlike
duress there need be no threat of death or serious injury there just needs to be
evidence that the wife was acting as a result of the husbands coercion. The case of R v
Court [1912] 7 Cr App R 127 indicates that this defence is not available to an unmarried
couple.

Criminal Justice Act 1925

47 Abolition of presumption of coercion of married
woman by husband.
Any presumption of law that an offence committed by a
wife in the presence of her husband is committed under
the coercion of the husband is hereby abolished, but on a
charge against a wife for any offence other than treason
or murder it shall be a good defence to prove that the
offence was committed in the presence of, and under the
coercion of, the husband.

R v Wilson [1996] 3 WLR 125

Abstract:W appealed against conviction of assault occasioning actual bodily harm
contrary to theOffences Against the Person Act 1861 s.47. He had branded his wife's
buttocks with his own initials at her instigation and with her consent. W argued that
the trial judge had erred in holding that he was bound by
R. v Brown (Anthony Joseph) [1994] 1 A.C. 212and in directing the jury to convict
following the prosecution's case.
Held, allowing the appeal, that the trial judge was wrong to find that consent was
irrelevant and was no defence to a charge under s.47 of the Act. The instant case
involved no aggression or sado masochistic element, and the branding was carried
out as a result of W's wife's request to have W's initials on her body as a physical
adornment,R. v BrownandR. v Donovan (John George) [1934] 2 K.B. 498
distinguished. The action taken by W could be equated with tattooing, which
attracted no criminal sanction. Public policy considerations were relevant in
determining what activity amounted to criminal behaviour and general propositions
were inappropriate in a changing world. Each case should be decided on its own facts.

R v Brown [1993]
Summary:Assault occasioning actual bodily harm; unlawful wounding; victims consenting to acts of
violence; whether mutual satisfaction of sado; masochistic desires constitutes good reason; whether
consent a defence
Abstract:In the absence of a good reason, the victim's consent is no defence to a charge under the
Offences Against the Person Act 1861, ss.20 or 47 ; the satisfying of sado-masochistic desires does not
constitute such a good reason. A, a group of sado-masochists, participated in consensual acts of violence
against each other for sexual gratification. They were charged with various offences under ss.20 and 47.
On a ruling by the trial judge that the prosecution did not have to prove lack of consent by the victim, A
pleaded guilty and were convicted. They appealed against conviction on the ground that the judge had
erred in his ruling. The Court of Appeal (Criminal Division) dismissed the appeal.
Held, dismissing the appeal (Lord Mustill and Lord Slynn of Hadley dissenting), that (1) although a
prosecutor had to prove lack of consent in order to secure a conviction for mere assault, it was not in the
public interest that a person should wound or cause actual bodily harm to another for no good reason
and, without such a reason, the victim's consent afforded no defence to a charge under ss.20 or 47; (2)
the satisfying of sado-masochistic desires did not constitute such a good reason; (3) since A had
admitted the charges against them and since the injuries inflicted were neither transient nor trifling, the
question of consent was immaterial and the judge's ruling had, accordingly, been correct (
R. v Donovan (John George) [1934] 2 K.B. 498,
Attorney General's Reference (No.6 of 1980) [1981] Q.B. 715, and dictum of Cave J. in
R. v Coney (1882) 8 Q.B.D. 534applied); and (4) (per Lord Templeman, Lord Jauncey of Tullichettle and
Lord Lowry) Arts. 7 and 8 of the European Convention on Human Rights have no application to the
circumstances of the present case.

Theft:
The Director of Public Prosecutions must give consent to any prosecution for theft by
a husband or wife against their spouse. This consent is required under s.30 of the Theft
Act 1968. No such consent is required for the prosecution of a cohabitant.
Conspiracy:
Under s.2(2)(a) of the Criminal Law Act 1977 a person cannot be guilty of conspiracy if
the only person they have an agreement with is their spouse. If it can be proven that
the conspiracy was with their spouse and other people then a crime will have been
committed. No such restriction is in place for an unmarried couple.

Law of obligations
The distinctions which used to exist between married and unmarried couples for the
purposes of actions in tort no longer exist. The position in the law of contract is still
notably different when it comes to pre-nuptial type agreements. Under the present
law a signed pre-nuptial agreement is still subject to a courts determination of its
fairness and this will be discussed further in Chapter 6. Any agreement signed by an
unmarried couple, however, could easily determine what will happen to their property
if the relationship should break down.
Marital confidences
Since Argyll (Duchess) v Argyll (Duke) [1967] Ch 302 it has been clear that the law does
protect confidences between married couples. The Duchess of Argyll successfully
prevented her husband from publishing the secrets of her life which she had
communicated to him during their marriage. Such protection is extended to
cohabiting couples as seen in the case of Stephens v Avery [1988] Ch 449. The protection
of such information must now be considered in light of the HRA and Article 8 of the
ECHR (see Douglas v Hello! Ltd [2002] 1 FCR 289).

Argyll (Duchess) v Argyll (Duke) [1967]

Abstract:1. Confidential communications between husband and wife during coverture are within the scope of
the court's protection against breach of confidence; the wife's own immorality does not nullify her right to
protection against breach of confidence relating to past events, prior to the breakdown of the marriage. 2. The
protection afforded in divorce court proceedings by the Judicial Proceedings (Regulation of Reports) Act 1926 is
wider than a protection of public morals and the public only, and extends to the protection of any person named
in a matrimonial suit. In 1959 D began divorce proceedings against P; in 1960 P cross-petitioned and in 1963 D
was granted a decree of divorce on the ground of P's adultery. In 1959 T, D's previous wife, brought an action
against P, and an injunction was granted against P by consent, such consent being obtained at the express
request of D and upon his promise that the subject-matter of that action would never be mentioned again. Later
in 1959, T sued P for alleged breach of that injunction. In 1962, the cross-petition was withdrawn. Then W sued P,
claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood arising out of the crosspetition; this action was settled, all parties undertaking not to comment on matters in dispute in that action to
anyone. P now sought interlocutory injunctions to restrain D, the editor and publishers of a Sunday newspaper
from publishing, in articles, statements about her which were (a) P's secrets of private life communicated to D
during the subsistence of their marriage, (b) information regarding the actions by T and W, and (c) particulars of
D's divorce petition other than those permitted by s.1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act
1926. None of P's own newspaper articles had disclosed matters complained of in D's apprehended articles.
Held, that (1) an interlocutory injunction would be granted restraining publication of secrets relating to P's private
life; (2) publication would similarly be restrained of particulars of D's petition and the cross-petition other than
those allowed by the 1926 Act notwithstanding (a) that the Act created a criminal offence and the injury of which
P complained was not an injury to property; and (b) that the apprehended publication in contravention of the
statue would not also constitute a tort; and (3) an injunction would be granted restraining publication of the
subject-matter of the actions of T and W. (Prince Albert v Strange 41 E.R. 1171applied,
Pollard v Photographic Co (1888) 40 Ch. D. 345applied,
Hayward v East London Waterworks Co (1884) 28 Ch. D. 138applied, dictum of Farwell J. inStevens v Chown
[1901] 1 Ch. 894applied, and dicta of Viscount Radcliffe inRumping v DPP [1964] A.C. 814applied;Lord
Ashburton v Pape [1913] 2 Ch. 469followed).

Stephens v Avery
Summary:Confidentiality; breach of confidence; information relating to sexual conduct disclosed
to friend; friend disclosing information to newspaper
Abstract:The courts would enforce a duty of confidence in respect of information relating to
sexual conduct if it would be unconscionable for the person receiving the information in confidence
to disclose it to a newspaper. The plaintiff and the first defendant were close friends who freely
discussed matters of a personal nature on the basis that it was secret and disclosed in confidence.
The first defendant passed on to the second and third defendants, editors and publishers of a
newspaper, details of the plaintiff's sexual conduct. The plaintiff brought an action claiming
damages on the grounds that the information was confidential and was knowingly published in
breach of the first defendant's duty of confidence. The defendants applied to strike out the claim as
disclosing no reasonable cause of action but the master refused. The defendants appealed.
Held, dismissing their appeal, that although the courts would not enforce a duty of confidence
relating to matters which had a grossly immoral tendency, information relating to sexual conduct
could be the subject of a legally enforceable duty of confidence if it would be unconscionable for a
person who had received information on the express basis that it was confidential subsequently to
reveal that information to another. The defendants had not shown that there was no legal basis for
the plaintiff's claim.

Douglas v Hello! Ltd

Summary:H, the proprietors of Hello! magazine, appealed against the continuation of an interim injunction restraining them
until trial or further order from publishing photos of the wedding of Michael Douglas and Catherine Zeta-Jones. Exclusive rights
for coverage of the wedding had been granted to N, the proprietors of OK! magazine. H contended that the judge had failed to
give satisfactory reasons for his decision that the publishing of the photos by them would amount to a breach of confidence.
The court held that (1) the judge had erred in failing to give any reasons for the exercise of his discretion; (2) it was necessary
to weigh the injustice likely to be caused to H in continuing the injunction against the injustice likely to be caused to D if the
injunction did not continue, and (3) such a balancing exercise favoured H, as if the injunction continued and D failed at trial, H
would suffer damages which would be extremely difficult to quantify in money terms.
Abstract:H, magazine proprietors, appealed against the continuation of an interim injunction restraining them, until trial or
further order, from publishing photographs of the wedding of a celebrity, D, exclusive rights to coverage of the wedding having
been granted to N, proprietors of a rival publication. H contended that the judge had failed to give any or sufficient reasons for
his decision to grant the injunction and that, if the injunction was upheld, they would suffer damage because the opportunity
to publish the photographs in a specific edition of the magazine would be lost. N argued that publication of the photographs by
H would amount to a breach of confidence.
Held, allowing the appeal and discharging the injunction, that (1) in exercising its discretion whether to discharge the
injunction, it was necessary for the court to weigh the injustice likely to be caused to H in continuing the injunction against the
injustice likely to be caused to D if the injunction did not continue,American Cyanamid Co v Ethicon Ltd (No.1) [1975] A.C. 396
applied, and (2) by virtue of theHuman Rights Act 1998 s.12(3), publication of the photographs could not be restrained unless
it was established that the claimants were likely to succeed at trial. It was likely that D would be able to establish that H should
not be allowed to publish the photographs because H had breached the Code of Practice of the Press Complaints Commission
1997 Clause 3. A breach of the Code having been made, H's right to freedom of expression was restricted by
Sch.1 Part I Art.10(2)of the Act. However, if the injunction continued and D failed at trial, H would suffer damages which it
would be extremely difficult to quantify in financial terms and the balancing exercise should be exercised in favour of H.

Evidence
Under the present law in criminal proceedings a spouse is a competent (i.e. is able
to give evidence), but is not compellable (i.e. he or she cannot be forced to give
evidence or be a witness against the other spouse). There are exceptions to this
rule
governed by s.80 of the Police and Criminal Evidence Act 1984 which makes a spouse
compellable if the offences are of a violent or sexual nature and committed against
children under 16. In civil proceedings a spouse is both competent and
compellable to
give evidence against his or her spouse. Historically, a spouse was neither competent
nor compellable for fear of interfering with marital harmony and the bias of the
evidence given. These rules have been gradually diminished in times of social change.
The case of R v Pearce [2001] EWCA Crim 2834 confirmed that these rules do not apply
to cohabitants. They will be competent and compellable in all cases regardless of their
status as a cohabitant.

R v Pearce [2001]

Summary:It was not possible to expand the Police and Criminal Evidence Act 1984 s.80, under
which spouses were non compellable witnesses, so as to include partners; it remained the case
that partners and children were compellable.
Abstract:P appealed against his conviction for murder. At his trial, P's longstanding cohabitee
had given evidence. Had she been married to P she would have been, pursuant to the
Police and Criminal Evidence Act 1984 s.80, a witness who was competent but not compellable.
P contended, inter alia, that her evidence should have been treated in the same way as that of
a spouse. P maintained that the rationale for the rule in relation to spouses was to protect
family relationships and that the courts should assess the substance of such relationships as
well as the form in order to prevent a breach of the right to family life under the Human Rights
Act 1998 Sch.1 Part I Art.8.
Held, dismissing the appeal, that it was not possible to expand s.80 of the 1984 Act so as to
include partners. If the existing concession were to be widened it would be difficult to find a
logical end point and potentially cause grave difficulties in the enforcement of the criminal law.
Whilst on one level the evidence given by P's partner could be regarded as an interference with
her rights under Art.8(1), such an interference could be amply justified under Art.8(2) on the
basis that it was necessary in a democratic society for the prevention of crime,
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27and
X, Y and Z v United Kingdom (21830/93) [1997] 2 F.L.R. 892considered.

Activity 3.4
Soriya and Amandeep have been married for five years. Amandeep has recently been charged
with the theft of a car and the rape of a 14-year-old girl. Soriya knows he is guilty because, in a
distressed state, he told her immediately afterwards.
The Prosecution wish to call Soriya as a witness. Can they do so? Would your answer be different
if Soriya and Amandeep were unmarried?
In criminal proceedings Soriya is usually competent but not compellable. She cannot
be compelled to give evidence for the prosecution concerning the theft of the car.
However, as Amandeep is charged with a sexual assault on an under 16 year old Soriya
will be compellable under s.80 of the Police and Criminal Evidence Act 1984.
If Soriya and Amandeep were unmarried, then Soriya would be an ordinary witness
and so would be competent and compellable.

Theoretical differences: unity and consortium

The final differences documented here are of a theoretical rather than a practical
nature.
First, the doctrine of unity is now thought to be of very limited application. It was
presented in accordance with the doctrine of one flesh which argues that upon
marriage a husband and wife become one. This doctrine is a legal fiction and has been
inconsistently applied. The common law and statute have reduced its significance.
Little of it remains, although in 1945 it was used by magistrates to acquit a man of
using his wifes non-transferable railway ticket as they were one and the same person
(see Williams, G.L. Legal unity of husband and wife (1947) 10 MLR 16). In Midland Bank
Trust Co Ltd and another v Green and another (No 3) [1982] Ch 529 CA the courts had
to decide whether it was a good defence to a tort action in conspiracy that those
involved were husband and wife and thus one person. While of limited importance
now, we shall have to see whether it would be argued successfully in a contemporary
case.

There also exists a troublesome concept entitled consortium. The

contemporary significance of the concept is hard to see but the
common law doctrine suggests that husband and wife become
entitled to one anothers consortium, which is the right to the
others society, assistance, comfort and protection. It has been
described by Lowe and Douglas (2006) as an abstract notion
which appears to mean living together as husband and wife with
all the incidents that flow from that relationship.
The common law system appears to allow, although it rarely
utilises, a sense that a husband-and-wife couple are to be treated
differently: as a special relationship. The existence of this doctrine
was confirmed by Munby J in Sheffield CC v E [2004] EWHC 2808
(Fam). This concept is a particularly symbolic one to conclude
with, as there is no such doctrine for cohabiting couples.

 Summary
The law does, in certain important circumstances, make a distinction between married
or civilly registered and unmarried couples. The law does not involve itself at the
beginning or end of an unmarried couples relationship, whereas the formalities of
marriage, civil partnership and the laws of nullity and divorce do regulate the
formation and conclusion of a formal relationship. The status of a couple does
influence the laws response to decisions concerning a childs upbringing or even their
adoption (see Chapter 12). The law grants additional rights and benefits to spouses in
the areas of property, residence, finance, taxation and inheritance. Spouses are
arguably more protected by laws concerning domestic violence and can recover
compensation more readily under the Fatal Accidents Act 1976. In substantive areas of
law such as confidences, obligations and crime distinctions are made. The law of
evidence also draws a line between those couples who are married and those who are
not. Finally, the doctrines of unity and consortium, although of little practical
significance, do provide a symbolic indication of the traditional view of the law which
manifests itself in so many different ways

 Go to your study pack

and read Marriage and
cohabitation in England:
changing attitudes and
behaviour by Anne Barlow
and others.
Consider why, despite the
differences between marriage
and cohabitation, the authors
of this chapter suggest
that marriage is no longer
desirable, essential
or practical.

Further reform
The distinctions between the protections afforded to
recognised couples over unrecognised couples are
documented above. Reforms have recently been
proposed by the Law Commission in their report:
Cohabitation: The Consequences of Relationship
Breakdown (Law Com 307). In this report the Commission
made a number of recommendations which included the
introduction of a new scheme of remedies which would
be available for cohabitants in respect of property on
family breakdown and death.

Activity 3.5
Read Bridge, S. Money, marriage and cohabitation (2006) 36 Fam Law 641; Bridge,
S. Cohabitation: Why legislative reform is necessary (2007) 37 Fam Law 911 and
Bridge, S. Financial relief for cohabitants: eligibility, opt out and provision on death
(2007) 37 Fam Law 1076.
This collection of short articles will allow you to consider why reform is viewed as
necessary and what form that reform may take. Under the scheme proposed by the
Law Commission you will note that there would be a remedy available for cohabiting
couples who satisfied certain eligibility requirements and who had not agreed to
disapply the scheme. Cohabitants would only be entitled to recover under the remedy
available if they had made qualifying contributions to the relationship giving rise to
certain enduring consequences at the point of separation. The cohabitation period
appears to be two to five years and the opting-out process is seen as a necessity in line
with preserving couple autonomy. Importantly a qualifying contribution is not just
limited to financial contributions and would recognise those of a home maker.

Discrimination or difference?
Is it a form of discrimination for the law to treat cohabiting couples differently
from couples who have married or registered a civil partnership? Or should the law
continue to differentiate between married and cohabiting couples? If a couple live
together for many years, have children together and then separate, why should the
law treat them any differently from married couples? The Law Commission recognised
in Cohabition: the consequences of relationship breakdown (Law Com 307) that in some
of
these cases, serious financial hardship could result from the courts lack of jurisdiction
to order property division or support in these cases. Indeed, Barlow et al. (2005)
suggest that a significant percentage of people in England and Wales believe in the
common law marriage myth believing that if they live together for a number of years
the law will, in fact, treat them as though they were married. They are then surprised
and disappointed to learn that this is a myth and the law will treat them as legal
strangers on separation, no matter for how long they cohabited.
However, as Herring (2013) suggests, there are arguments favouring differentiation.

State benefit
We have already highlighted the view taken by the government in its 1998 Green
Paper called Supporting Families. In this paper the government made clear its view that
Marriage does provide a strong foundation for stability for the care of children.
The
government appears to believe that marriage should be promoted over other forms
of personal relationship because it provides a strong foundation. How is this so? We
know of no society without marriage, so we cannot now consider a world without it.
Secondly, the government wants to promote families as a way of producing and caring
for children. Thirdly, the state wants to involve itself at the beginning and end of the
relationship. Fourthly, the state may wish to make out economic support for this claim.
If one person is ill, then the other party could support their partner. This would not be
the case if the party was unmarried. Finally, it is argued that marriage can be used as an
effective evidential tool to regulate family life. Alternatives would be available but this
current approach is easy and straightforward and the ease with which the benefits of
marriage have been extended to civil partners does demonstrate this.

Choice
It can be argued that if a couple choose not to marry or register a civil partnership
or
refuse to marry or register a civil partnership then it is wrong for the law to treat
them as if they were married: this would negate their choice not to be married or
party to a civil partnership. This argument is not without its critics but it does make an
interesting point and one which the law should be careful not to dismiss.
Current attitudes
If the law should reflect current attitudes, then it should view cohabitation
as an
acceptable relationship to be in. Society does not differentiate between a married
and unmarried couple so it is difficult to see how the law could justify its attempt to
distinguish between the two states.

Abolition?
It has been argued that if there is no need to differentiate then perhaps we should
abolish the legal institution of marriage so that the status of a cohabiting couple is the
same as that of a married couple. Marty Slaughter (2002) argues that marriage has
been used to perpetuate disadvantage among married women. It places the husband
as the head of the household and the woman subject to his whims. This position can
be supported by the argument that marriage as an institution is self-centred: it
encourages people to focus on their home rather than on engaging with their local
community. Despite these calls there is currently little support for the abolitionist
stance.

 Slaughter, M. Marital
bargaining in Maclean, M.
(ed.) Making law for families.
(Oxford: Hart, 2000) [ISBN
9781841132051].

 Summary
In this section we have considered the arguments for an end to discrimination but
have also considered arguments that would support some form of differentiation.
If the law treats differently a group of people who are no different to others, then
this is discrimination. To support such a policy we must have very good reasons.
If the justifications for differentiation can be dealt with by registering a partner in
accordance with the CPA then there must be a call to end discrimination for all other
unregistered couples. If, on the other hand, there are good reasons to distinguish
between the two groups, then differentiation should be celebrated not censured

Question 1 Do you agree that the law ought to treat all family partnerships
equally? What would be the implications of such treatment? Does the current law
differentiate or discriminate between the various forms of partnership?
Question 1 This essay question is split into three separate questions and it is
important to remember to deal with the three questions equally. The first question
asks you to consider the merits of treating family partnerships equally. Bailey-Harriss
criteria are a good point for discussion when considering the interests a state would
have in treating family partnerships equally.
When looking at the implications of such treatment you need to consider the
arguments which support the law treating marriage differently. The two stronger
arguments are the possible benefits to the state and the issue of choice. If you treat
all relationships equally then will the state lose some of its benefits? Will we be
undermining peoples choice?

The final part of the question asks you to consider whether the current law does
discriminate or differentiate. There is plenty of evidence which suggests that the
present law does discriminate, but your answer will depend on whether you believe
the state has a right to do so. Our obligations under the ECHR would say no in some
areas but what of others? Is formal equality ever attainable? Is it desirable? After all,
we could be assuming that cohabitants want to be married or in a civil partnership
and yet even if they do not, is it a states responsibility to coerce them into doing so?
The Law Commissions recent suggestions for reform do provide an opportunity for
protection which would at least undermine the myth of common law marriage. The
problem with all opportunities for protection is that those who choose not to engage
in them may well find themselves discriminated against on this basis.

Question 2 To give cohabitants rights in law would destroy the very freedom
which makes cohabitation attractive to them. It would also create enormous
problems of definition and entitlement while providing a bonanza for lawyers.
Discuss.
Question 2 In a similar essay-type question you are being asked to consider the legal
rights of cohabitants. You can pick from financial, proprietary, taxation, status rights
and the available protection from domestic violence. One implication is that recent
legislative proposals by the Law Commission may undermine the very freedoms that
cohabitants enjoy. It will arguably create problems of definition which will involve
further litigation and the only people who tend to benefit from litigation are lawyers.
Hence the term bonanza!
Having said this you should consider whether you think it is the laws responsibility,
in accordance with the rule of law, to at least offer couples the chance to be treated
equally. Here you may like to consider whether the law ought to discriminate
(arguably never) or differentiate in celebrating the differences between the two.
Marriage/civil partnership has benefits and it also has burdens. Some cohabitants may

In many ways this question utilises much of the material

in the first question, but the structure will differ and the
consequences are seen as more particular in this second
question. Both questions demand more than simply a
compare and contrast. Think about the material and the
arguments. Both sides have some merit and it is up to
you to formulate an argument which proves to be both
cogent and powerful. Do not appear too neutral. This
will convince Examiners you have no view.