The Legal Implications of a Relationship outside Marriage

Editorial Committee of the Cambridge Law Journal

The Legal Implications of a Relationship outside MarriageAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 37, No. 2 (Nov., 1978), pp. 252-269Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506100 .

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Cambridge Law Journal, 37 (2), November 1978, pp. 252-269 Printed in Great Britain.

THE LEGAL IMPLICATIONS OF A RELATIONSHIP OUTSIDE MARRIAGE

DAVID PEARL

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 positio:n for the unmarried couple is, to a large extent, dictated by the prevailing policy that marriage should be encouraged.1 The opposing trends-both practical as well as changing moral norms-have not been sufficiently powerful for any substantial policy shift.

DEFINITIONS

There has, however, been some significant movement in public opinion-and both Parliament and the courts have recognised this fact. In a case decided in 1950,2 the three members of the Court of Appeal took the view that a man who had lived for twenty years with a female tenant did not acquire the status of membership of the tenant's family,3 whether the cohabitation was on the basis of platonic friendship or involved a sexual relationship. In the course of his judgment, Asquith L.J. said " To say of two people masquerad- ing, as these two were, as husband and wife (there being no children to complicate the picture) that they were members of the same family, seems to be an abuse of the English language."

By 1975, James L.J. in Dyson Holdings Ltd. v. Fox4 said, of

1 See for example the comment by Baker P. in Campbell v. Campbell [1976] 3 W.L.R. 572 at p. 577: "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 [19501 2 K.B. 328.

3 For the purpose of succeeding to a statutory tenancy on the death of the woman.

4 11976] 1 Q.B. 503, 511; Dyson Holdings Ltd. v. Fox was distinguished in Helby v. Raferty, The Times, 5 May 1978 (C.A.), on the grounds that the woman in

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C.L.J. Implications of Relationship outside Marriage

the facts in the earlier 1950 case, that the popular meaning of "family" would, according to the answer of the ordinary man, now include such a person as a member of the family. James L.J. however, distinguished " relationships of a casual or intermittent charac- ter and those bearing indications of impermanence." It is, of course, just such a distinction which is drawn by statute when cohabitation outside marriage is, for one reason or another, acknowledged to have legal implications. Thus the Supplementary Benefits Act 1976 refers to " two persons cohabiting as man and wife." 5 Similarly the Social Security Act 1975 refers to cohabitation " with a man as his wife." 6 The Family Income Supplements Act 1970 mentions the woman "who lives with him as his wife." The Immigration rules speak of a " woman who has been living in permanent association with a man." 8 The Domestic Violence and Matrimonial Proceedings Act 1976 adopts a slightly different terminology, namely "a man and a woman who are living with each other in the same household as husband and wife." 9 Despite the different wording, the test is presumably the same.10

The meaning of cohabitation for the supplementary benefit legislation has been discussed on a number of occasions in some detail by the Supplementary Benefits Commission."1 The Commis- sion claim to use six criteria in deciding whether cohabitation exists or not; namely public acknowledgment, stability of the relationship, the sharing of accommodation, whether there are children of the relationship, financial support and the existence of a sexual relationship. An analysis of cases on widows' contributory benefits 12 sug- gests that there is considerable emphasis placed on the presence of a sexual relationship. Quite clearly, the Supplementary Benefits Commission adopt an even more severe attitude, given the sympathy which is often felt for the widow and which is absent in the case of the unmarried mother.

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. I (1) (b). See later. 8 H.C. 79, para. 42; H.C. 81, para. 37. o 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), para. 330.

t1 See especially Living together as Husband and Wife (1976), S.B.A. paper 5. '2 See especially CG 214/50 (KL); R(G) 11/59; R(G) 2/64; R(G) 5/68; R(G)

2/72.

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The Cambridge Law Journal

There would appear to be three different circumstances which require to be separately considered. First, there is the relationship where a man and woman live together in a common home and where they are acknowledged by the outside world as being " man and wife." Second, there is the transitory relationship which has no permanence. Third there is the situation where the man sets up a " mistress" in a house in order to visit her on a regular basis. There may well be a degree of " dependency " by the woman on the man in the first and the third situation-although dependence will not necessarily be present in all cases. There is hardly likely to be any dependency in the second situation.13 After an analysis of the legal problems which may arise, we shall illustrate how the three situations, either with or without dependency, establish legal consequences."

THE LAW OF MAINTENANCE

A husband, of course, is under a legal duty to support his wife. If he has failed to provide reasonable maintenance, she can apply to a magistrates' court for a maintenance order.15 An unmarried cohabitee has no such right against a wayward lover! Her position is particularly serious for, if she is still cohabiting with her partner, she is not entitled to claim state supplementary benefits. The Supple- mentary Benefits Act 1976 lays down that when a husband and wife are living together, their requirements and resources shall be aggre- gated and treated as the husband's-and if anyone is able to claim supplementary benefits, it is the husband who is so entitled. Likewise, the Act requires that a man and woman " cohabiting as man and wife " shall be treated in the same way " unless there are exceptional circumstances." 16 The difference between the two situations how-

13 In Helby v. Rafferty, The Times, 5 May 1978, 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 forth- coming 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).

254 [1978]




ever is that the husband is under a legal duty to support his wife 17

and, if he does not do so, she can obtain a maintenance order against him. The Supplementary Benefits Commission can enforce these maintenance obligations by applying for a court order against the husband for the recovery of benefit paid to a wife or, as a last resort, they can take criminal proceedings in a case where the husband has

persistently refused to maintain his wife.'8 A man is under no such legal duty with regard to a woman he

lives with outside marriage. Thus, if such a man were to refuse to maintain his partner, the only remedy open to her in a case where she is unable to support herself, is to bring the relationship to an end. Until she does so, she is not entitled to supplementary benefit, and the man, in any case, may not be qualified to apply for benefit if he is in full time employment.

The reasoning behind this policy is stated by the Supplementary Benefits Commission in the following way: " An unmarried couple should not get more favourable treatment than a married couple, which they would if they were able to claim as single persons." ' The Commission ignore the important point that unlike the married woman, the unmarried woman has no legal remedy against the man.

SOCIAL SECURITY

The social security position, generally, makes no provision for the unmarried couple. The maternity grant 20 (of £25) is paid on the basis either of the woman's contributions to the National Insurance scheme or her husband's contribution. If she has not been working, therefore, she can only obtain the grant if she is married and her husband has paid the contributions. Similarly, a death grant 21 is not paid to a woman on the death of the man with whom she has been living no matter how lengthy the relationship. More seriously, the widow's benefit, widowed mother's allowance, and widow's pension are all available only if the man who has died is the woman's husband.22 An unmarried woman cannot benefit from an invalid care allowance payable if the man with whom she lives becomes disabled.23 A man can obtain increases in certain benefits for the

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. 16 (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) Regu-

lations 1976, reg. 6.

255




support of an adult dependant with whom he cohabits only if that dependant is his wife.24

Indeed, one must search hard for even limited acknowledgments to the stable relationship outside marriage. One could point to the Family Income Supplements whereby the man can obtain limited financial assistance to meet the needs of the family unit (whether married or not) if his income falls short of specified amounts.25 It could be argued, of course, that the system of Family Income Supplements does not equate marriage with relationship outside marriage, not least because the supplements can only be paid when the "family" as defined includes at least one child-thus the payment is for the benefit of the "family" including the child; and entitlement is only available on the birth of the child. Likewise, the Child Benefit Act 1975 enables an adult (:usually of course the mother) to claim Child Benefit for the child; thus it is not the relationship which is being recognised but the existence of the child.

The only situation where the woman is in exactly the same position whether married or not married to the man with whom she lives is in the case of the non-contributory invalidity pension 26

introduced by section 36 of the Social Security Act 1975. Under section 36 (2) of the Act, a woman, either married " or cohabiting with a man as his wife" is entitled to such a pension where she is "incapable of performing normal household duties." 27 No distinction is here made between women, based on the existence or other- wise of a marriage.

The recognition of a relationship of cohabitation for benefit purposes, therefore, is very limited indeed. Contrariwise, cohabitation has the effect of denying benefit, first in the supplementary benefits area, and second in the social security area generally for benefits such as a widow's allowance, a widowed mother's allowance, the widow's pension, and the child's special allowance.28 Cohabitation with another man is treated like a second marriage in these cases so as to deprive the woman of the right to obtain a benefit which has accrued on the basis of the contributions of the husband.

THE TAX POSITION

State encouragement of marriage indisputably exists in British tax

24 Social Security Act 1975, s. 44. Social Security Benefit (Dependancy) Regula- tions 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. 2 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.

[1978] 256



Implications of Relationship outside Marriage

laws. In particular, a transfer of value by the transferor to his spouse is exempt from capital transfer tax.29 A married man who has his wife living with him is entitled to a " married man's allowance," 30 unless the couple elect to have the wife charged separately on her earned income. If the couple are not married, the parties must be taxed separately. Each of the parties can claim no more than the single person's relief. Quite clearly, therefore, most married couples-other than those where both parties earn large sums or where the wife has a large amount of investment income- have a more favourable tax position than those couples who choose to live together.3 There is no recognition in tax law of the stable relationship outside marriage.

THE POSITION ON DEATH

Husbands and wives inherit from one another on intestacy. Indeed, the surviving spouse, in the presence of issue, has a right to the deceased's personal belongings, the first £25,000 as a statutory " legacy" and a life interest in half of the balance of the estate. In the absence of issue, the spouse's rights on intestacy are increased to the personal chattels, a statutory "legacy" of £55,000 and half of any balance absolutely. Couples living together but unmarried had until recently no legal rights at all to obtain any benefit out of the intestate death of the partner. The only possible situation where a cohabitee could obtain an interest on the intestate death of the other person was where the partner died leaving no relatives as defined in the Administration of Estates Act 1925, and thus the estate passes as bona vacantia to the Crown. The Crown may grant an ex gratia payment to dependants, whether kindred or not, of the intestate, and for other persons "for whom the intestate might reasonably have been expected to make provision." A cohabitee would be able to benefit from such a payment-but quite clearly it is not a right.

Recently, the position has been improved to a limited extent by the Inheritance (Provision for Family and Dependants) Act 1975. Under this Act, a court can award reasonable financial provision to any person who " immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased." 32 An application can be made to court both in the case 29 See Hayton and Tiley, Elements of Capital Transfer Tax (London 1975), p. 107. 30 The allowance for the tax year 1978-79 is £1535. 31 See Tiley, Revenue Law, 2nd ed. (London 1977), p. 112. 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.

C.L.J.--3

257 C.L.J.




of an intestate death as well as when the deceased leaves a will making no provision or inadequate provision for his partner. Under section 2 of the Act an application can be made, inter alia, for an order for the transfer of property to the surviving partner. It needs to be stressed however, that a married woman has greater protection than a non-married partner under the Inheritance (Pro- vision for Family and Dependants) Act 1975, for whereas an unmarried partner can only apply to the court for "maintenance," the surviving spouse can seek such "financial provision as it would be reasonable in the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance." 33 It is too early to say whether the courts will make major inroads into the traditional pre-eminent position of the wife 4 by granting "maintenance" out of the estate, for the benefit of a "mistress" who was supported by the deceased husband, but the general assumption is that the Act is far from being a "mistresses' charter" (as was suggested by one commentator 35). In the case of a stable relationship outside marriage ending in death, the surviving dependant partner's claim to some maintenance out of the estate is unanswerable, and one cannot really distinguish between a situation of a man who happens to be married but separated from his wife and living with someone else and that of a man who was not married at all but living in a stable relationship outside marriage.

DOMESTIC VIOLENCE AND RIGHTS OF OCCUPATION IN THE COMMON HOME

Another area where cohabitees have been given some measure of protection is that of domestic violence. The right to occupy the common home is linked to this question and they are dealt with together. A spouse or a cohabitee is in a very weak position at common law when she seeks legal protection from a violent partner. Indeed, she has to rely exclusively upon either the criminal law of assault (a very unsatisfactory position, for on the evidence submitted to the Parliamentary Select Committee on Violence in Marriage,36 the police are most reluctant to intervene

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 Alec Samuels in (1976) 39 Modern Law Reviw at pp. 183 et 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.

[19783 258




in a domestic dispute) or on obtaining an injunction against the other person whilst other substantive proceedings are pending. As a result of the recommendations contained in the Select Com- mittee's report, Parliament passed the Domestic Violence and Matrimonial Proceedings Act 1976. Section 1 of the Act provides that the applicant may obtain an injunction (known generally as a "protective " injunction or " non-molestation " injunction 37) in the county court even though no proceedings are pending. The Rules of the Supreme Court have been amended to allow such injunctions to be granted also in the High Court. If the judge in the county court is satisfied that the other party has caused actual bodily harm to the applicant, and that he was likely to do so again, he can attach a "power of arrest" to the injunction, contraven- tion of which would entitle the police to arrest immediately.38 Section 1 (2) of the Act states that the right to seek such an injunction "shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly." Likewise, by section 2 (2) an "arrest condition " can be attached in the case of cohabitees. The protection given to cohabitees was interpreted initially by the Court of Appeal as exclusively a procedural provision which had not altered in any way the substantive law affect- ing the parties' rights to occupy premises.39 This interpretation was overruled by the House of Lords in Davis v. Johnson."

It had been argued also that the Act provides no relief for an unmarried partner who has been forced to leave the home where they lived together. Under these circumstances they would no longer be a "man and a woman who are living with each other in the same household as husband and wife" within section 1 (2) of the Act. It could be argued of course that the Act should be construed widely either so as to include those who "are or have

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 1977, expanding upon the judgment reported in The Times, I November 1977; [1978] 2 W.L.R. 644.

39 See B. v. B. [19781 2 W.L.R. 160; Cantlif v. Jenkins [1978] 2 W.L.R. 177. 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.

259




been living with each other" or that the Act should apply if the parties were living together at the time of the incidents which caused the separation and give rise to the situation in which one party found it necessary to invoke the jurisdiction of the court. The point was argued in B. v. B.,41 but, as the court held that the Act had not altered the substantive law, no conclusion was expressed on the interpretation which should be given to section 1 (2). Lord Denning deals with the point briefly in Davis v. Johnson 42 where he said " [the words in subs. 2] are used to denote the relationship between the parties before the incident which gives rise to the application. If they were then living together in the same household as husband and wife, that is enough."

None of the Lords of Appeal in the House of Lords in Davis v. Johnson 43 considered this aspect of the case, although it is implicit in Lord Scarman's view, at least, that eviction, both actual as well as threatened or attempted, was within the mischief which the Act was designed to remedy. The Act, however, provides, in the phrase of Lord Salmon, "first aid" not "intensive care." Presumably, therefore, it would not be possible for a woman who is not married and who has been evicted from the home which she shared with a man (the sole or joint owner or tenant) to apply for relief under the 1976 Act after a significantly lengthy gap between the eviction and the application.

Another unfortunate gap in the 1976 Act is that there is no attempt to regulate the period for which the man could be deprived of occupation, and the woman allowed to enjoy exclusive occupation. Lord Salmon, in particular, felt it would be most exceptional to keep a man out of his own house for any period beyond a few months.4' Many cases, of course, involve local authority housing. If the parties live in a local authority house under a tenancy agreement, the existence of an injunction may well per- suade the local authority to transfer the tenancy to the woman. Viscount Dilhorne expressed the view that the injunction should continue only up until the local authority had dealt with the matter under statutory powers.

The 1976 Act reaffirms the spousal rights of occupation of the matrimonial home. This joint "right of occupation" is in no way dependent upon legal or equitable title; rather it is additional to such a title and stems from the relationship of marriage per se.45

41 [1978] 2 W.L.R. 160. See especially the judgment of Bridge L.J. at pp. 167, 168.

42 [19781 2 W.L.R. 182, 191. 43 [19781 2 W.L.R. 553. 4 See also Hopper v. Hopper, The Times, 31 May 1978. 43 The Matrimonial Homes Act 1967.

260 [19781




Parties who cohabit but who are not married to each other have no such interconnected rights to occupy the common home. The Matrimonial Homes Act 1967 46 which entitles a spouse to apply to court to prohibit the other party's right of occupation or to seek to terminate that right of occupation, does not apply to the cohabitee. The man could indeed, if he has exclusive legal title, sell the property to a third person without any regard at all to the woman's interests.47 Statutory law does not, therefore, give a cohabitee a right of occupation of the common home. It is open to the man to revoke permission for her to live in the house of which he is sole tenant or owner. One suspects that in a case where there was no violence .and where there was alternative accommodation, she would be unsuccessful in obtaining an injunction under the 1976 Act.48

The Select Committee recommended that where there were children of the relationship, and a dispute arises between the parties (who are not married) the court should have power to per- mit the parent caring for the child to have sole occupation of the property during their child's minority, even in the case where the woman has no legal or beneficial interest in the house. The recom- mendation has not been accepted. Indeed, to do so would be to accept that the unmarried but cohabiting couple do have "rights of occupation" over the common home, and that, in certain cases which do not fall within the "first aid" of the temporary injunction, the court has power to suspend or terminate the right of occupation of one of the parties. Legislation has not gone anywhere near recognising this possibility.

The courts, however, have accepted that compensation could be allowed in certain circumstances for the loss of "a licence" and that indeed an injunction can restrain one of the parties from breaking such a licence. In Tanner v. Tanner,"4 the Court of Appeal held that a woman acted to her detriment in moving into a home bought by the man with whom she had had an affair and who was the father of their minor daughters. It was held that she had a "contractual licence" to have accommodation in the house for herself and the parties' children so long as the children were of school age and reasonably required the accommodation. She had

4' 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] Fam. 76, namely a "balance of hardship."

49 [1975] 1 W.L.R. 1346. This case was distinguished in Horrocks v. Forray (19761 1 W.L.R. 230. See Barton in (1976) 92 L.Q.R. 168.

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given up a rent-controlled flat and since, therefore, she had given good consideration, the licence was not revocable at will.

Lord Denning stated the legal position in this way.50 "I think he had a legal duty towards [the babies of whom he was the father]. Not only towards the babies. But also towards their mother." 51 And further: "It was a contractual licence of the kind which is speci- fically enforceable on her behalf, and which he can be restrained from breaking; he could not sell the house over her head so as to get her out in that way."

Of course, in many cases it will be difficult to show that one of the parties (usually the woman) has suffered any detriment when

moving into a " common home " or, as a mistress, a home for her exclusive use found for her by the man. Tanner v. Tanner is clearly confined to cases where there is consideration 52 and thus where the licence cannot be unilaterally revoked at will. Where there is no consideration, there will be no remedy. Indeed, even if consideration can be shown, it will not necessarily mean that the licence is to last for an unlimited duration.53 In most cases, if the relationship breaks up, it is hard to see how the courts could prevent the man from ejecting the woman from the common home (thereby termi-

nating the licence) even if there are children.54 One good aspect of the Tanner decision however, is the hopeful burial of the old common law rule relating to the unenforceability of an agreement, such as the one in that case, because it was struck for an "immoral"

purpose.55 If a couple set up home together without marriage and if one person suffers a detriment in so doing, there is a contractual licence which cannot be terminated at will. They do not however

enjoy rights of occupation per se, and the contractual licence, if it exists in a particular case, cannot possibly be of unlimited duration. Its extent depends upon the circumstances of each case.

5s [1975] 1 W.L.R. 1346, 1349. 51 Italics added. s5 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 1978, 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.

s5 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. 752 per Baker P. at p. 757.

55 Upfill v. Wright [19111 1 K.B. 506. Fender v. St. John AMildmay [19381 A.C. 1, 42. 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.

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PROPERTY RIGHTS

Unless a contractual licence can be established as in Tanner v. Tanner, the man has no duty to provide a "roof" for the woman with whom he cohabits. If the relationship breaks up, the special safeguards available to a wife after a divorce do not apply.56 In particular, the courts have no power at all to reallocate the couple's resources. All that can be done is for the woman to apply to the court to determine rights in each item of property-the house, the car, the furniture, etc. The major problem, of course, concerns the former "common home." If the parties intended from the beginning that they would be co-owners of the house, then so long as the deed both names the woman as joint legal owner as well as declaring her beneficial interest, the parties will have joint legal and beneficial interests. The practical effect of this situation, of course, includes the important point that the man cannot sell the house without the consent of the woman.57 If the deed simply refers to the joint legal ownership, it would be open to the court to decide that, because of the intention of the parties to the contrary, the beneficial interest in the property should be distributed in some way other than fifty-fifty. Such an inference, however, would be hardly likely to appeal to the court.58

An interesting, if little known, case is Crisp v. Mullings.59 Mrs. Crisp, who was separated from her husband, was living with Mr. Mullings as "man and wife" in a flat with Mr. Mullings' son and daughter. In 1970, they found a leasehold house. In order to obtain a mortgage on this house, they had to satisfy the building society who advanced them the loan that they had sufficient income to pay the interest. They were both earning wages, and the society accepted their combined income as sufficient. They both joined as prin- cipals in the mortgage and its covenants. The leasehold interest was then transferred to them jointly, and they executed the mort- 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.

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. [19751 3 W.L.R. 752. See however Lawrence v. McFarlane, The Times, 18 May 1976, 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 Lawnence v. McFarlane, The Times, 18 May 1976.

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gage jointly. Mr. Mullings paid the deposit on the house, which was required over and above the loan. They lived together for some two years when, after a quarrel, Mrs. Crisp left and did not return. Mrs. Crisp sought an order that the property be sold and the proceeds be divided equally. Mr. Mullings claimed to be solely entitled under a resulting trust. The Court of Appeal held that prima facie, joint tenancy at law would be reflected in joint tenancy in equity. But where the purchase price is provided not in equal shares, equity will find a proportionate beneficial tenancy in common. Thus, as the house cost £6,250, and the mortgage was £5,700 (with Mr. Mullings paying the £550 deposit), their interests were 3,400 2,850

(the man); ' (the woman). Although the man paid all 6,250 6,250 the mortgage instalments, the woman paid for the outgoings including food, and the court held that there was no ground for giving credit to the man for any part of the mortgage repayments whilst they were living together.

The major problems, of course, arise in cases where the man is the sole legal owner of the "common home." The courts now have the extensive powers in the case of the breakdown of the marriage to reallocate property rights, notwithstanding the strict legal position. Further, by section 25 (1) of the Matrimonial Causes Act 1973 they can take into account the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family. In the case of a couple who are not married, the courts have no such powers, and the woman will not have any property rights at all in the former "common home " unless she can establish a constructive trust. She will be able to do this, if she can prove that, first, the man has by words or conduct induced her to act to her detriment in the reasonable belief that he intended that she should have some beneficial interest and second, it is an express or implied part of the bargain that she should contribute toward the acquisition of the property in the way in which a wife would have contributed. Both conditions must be present, for the first factor in itself does no more than create a voluntary declara- tion of trust which, because of the lack of writing, is unenforceable. Quite obviously, the courts will be more willing to infer such a beneficial interest if the woman has made a substantial contribution either in direct financial terms, or by her direct labour in the house.°6 Indirect contributions (such as purchase of food) do not

6s See Cooke v. Head [19721 1 W.L.R. 518, Eves v. Eves [19751 1 W.L.R. 1238. 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.

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really lead to the inference of a trust. Moreover, it is an important if not essential consideration to ascertain whether the house is acquired in contemplation of marriage.

Another problem will arise when the property is rented. If the tenancy in the man's name is protected by the Rent Act 1968 and the man dies, the woman may be able to continue the tenancy as the "statutory successor" under the Rent Act.61 She is a member of the tenant's family. The courts draw a distinction between the case where the relationship was stable, and where it was "casual or intermittent." 62 The courts are involved therefore in the very difficulties discussed in the introductory paragraphs to this article.

Although the partners to a stable relationship outside marriage have rights inter se, and some rights involving third parties, which correspond to the rights of married couples, the major legislation which protects wives who do not have any legal interest in the matrimonial home, namely the Matrimonial Homes Act 1967, does not extend its benefits to parties to a relationship outside marriage. In particular, a woman living with a man has no right to pay the rent or mortgage instalments if the man (who is the mort- gagor or tenant) defaults in his payments.63 There is a strong case for extending that section of the Matrimonial Homes Act 1967 to cover the stable relationship outside marriage.

OTHER ASPECTS OF THE RELATIONSHIP

In other areas of the law, the traditional view of the mutual rights of cohabitation, and the doctrine of the unity of husband and wife produced differences in the legal position between the married vis-a-vis the non-married parties. These differences have been largely destroyed as a result of changes introduced by legislation. Thus a spouse can no longer petition for a decree of restitution of conjugal rights, he can no longer bring an action against third parties for enticement, seduction and harbouring. The wife's domicile (i.e. the legal territory where she is held by law to reside for tax, jurisdictional and other purposes) is no longer dependent upon the domicile of the husband. But the principles of mutuality and unity still remain. Thus the surviving spouse (together with other

61 Rent Act 1968, Sched. 1, para. 3. 62 See for instance Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 and see the

earlier case of Gammans v. Ekins [19501 2 K.B. 328. The Court of Appeal felt that the concept of permanence was lacking in Helby v. Rafferty, The Times, 5 May 1978. See before nn. 4, 13. In Joram Developments'Ltd. v. Sharratt, The Times, 7 March 1978, 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).

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legal dependants; thus excluding a non-married partner) has an action in tort under. the Fatal Accidents Act 1976 if the other spouse is killed as a result of the negligence of a third party.64 In addition, a husband has an action for damages against a third person for loss of his wife's consortium if this was clue to the third party's breach of contract or tort. Similarly, the general rule, (subject to many important exceptions) is that the accused's spouse is an incompetent witness for the prosecution. Then, the law protects marital confidences. There is a presumption against a domestic arrangement attracting a legal relationship. A husband cannot be guilty of raping his wife, unless there has at least been a separation agreement or a matrimonial order with a non-cohabitation clause.65 The parties living together outside marriage do not enjoy either mutual rights of consortium, or unity in their legal relationship."6 Nonetheless, certain developments have occurred which acknowledge the stability of cohabitation outside marriage. Thus in K. v. J.N.P. Co. Ltd.67 the deceased was, at his death, living with a woman to whom he was not married (and who was therefore not a dependant under the Fatal Accidents Act) and their three children. He was the sole wage earner and he was responsible for the house, the food, and all the incidental expenses, including holidays, of the "family" as a whole. In consequence of an application by the children under the Fatal Accidents Act it was necessary to assess the extent of their dependency. The majority of the Court of Appeal deducted the cost of the mother's food and clothes but refused to apportion the cost of the holidays, the fuel, the rent, or television and washing machine between the miother and the children. In other words, the majority in the Court of Appeal selected some family expenses for "equal treatment" and deducted sums which could be attributable to her share of the benefit (and thus would not be taken into account as a loss to the children), and with regard to other areas of expenditure, they did not reduce any share which could be attributed to the woman. In dissent, Graham J. made no deduction at all based on expenditure on the woman. In his view "the proper maintenance of the mother was necessary for the support of the children and it was unrealistic to make a deduction in the cost of the support as not being a loss of

84 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 [19541 2 Q.B. 282. R. v. Clarke [1949] 2 All E.R. 448. 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 [19761 1 Q.B. 85.

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the children." The majority objected to Graham J.'s view primarily because it "confers indirectly on an unmarried mother the statutory right still denied her by Parliament." This is clearly not the case, because in order to assess the amount of damages the dissenting judge projected the damages by a " multiplier" until the children reached sixteen. In the case of a wife bringing an action under the Fatal Accidents Act, the multiplier would have been very different indeed. The distinction between food and clothes (subject to a deduction) and holidays, fuel, rent, television set, washing machine (not subject to a deduction) has a touch of "Solomon's justice " about it, and has little to commend itself. The more robust view of Graham J., in this commentator's view, is to be preferred.

CONCLUSION

Graham J.'s dissenting judgment is also, it is submitted, a pointer to the future developments in this area. He expressed the hope, in the course of his judgment, that, in due course, Parliament will reconsider the scope of the Fatal Accidents Act and widen the category of dependants.68 The emphasis would seem to be on "dependency." The Inheritance (Provision for Family and De- pendants) Act 1975, as we have already mentioned, refers to the right of " any person who . . .was being maintained" to apply to court for family provision. It is to be hoped that the Social Security and Supplementary Benefit disqualification laws can be changed to reflect this new approach; so that the relevant benefit, either contributory or supplementary, will be payable-unless the claimant's life is now mutually interdependent on another man. The emphasis, therefore, can be shifted from the sexual relationship between the parties. There seems nothing contrary to public policy in extending contributory benefits, such as maternity grant, death grant, etc., to a person whose male partner has been contributing toward the national insurance scheme whilst at the same time maintaining and living with the woman to whom he is not married. In the area of property law, the developments have been based, largely, on unsatisfactory legal fictions using, by analogy, principles of licence and trust. It would be healthier to allow rights of property to accrue if the parties agree to establish " mutual dependence" on each other-whether they live in a common home or the woman lives apart and is visited by the man. This leaves, finally, domestic violence and the rights of occupation of the home. It is suggested that the developments in this area, based on the licence doctrine,

6s J1976] 1 Q.B. 85, 101.

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have been misplaced. The victim of a violent relationship requires protection-in particular a secure roof over her head-regardless of the marital status of the parties. It is hoped that the legislation will be amended to give guidance on the period during which a man can be deprived of occupation. In addition, the opportunity can be taken to include within the ambit of the Domestic Violence Act 1976 the woman who is living alone in a home provided by the man, but which they use together for their relationship. Further- more, the Act should be extended also to provide injunctions restraining the man from removing movable property from the accommodation. The Rent Acts need no such amendment, for, although some of the decisions are questionable,69 the courts have interpreted "family" in a manner which includes the parties to the permanent relationship.

We have seen that the law recognises and acknowledges the existence of the first and third type of relationship mentioned at the beginning of this article (namely the stable relationship in a "common home," and the situation where the man sets up a "mistress" in a house in order to visit her on a regular basis). Some improvements can still be made, but the law has certainly moved a long way in the last twenty-five years. The law does not really recognise the second type of situation-the transitory relationship which has no permanence 70-but, so one must assume, the parties to that type of relationship would not wish the position to be any different.

Some observers, of course, would argue for a more fundamen- tal and radical reappraisal of the present legal position. The word "dependency " itself carries within it a stigma which does not provide a ready basis for a satisfactory legal relationship. It also ignores the equality both of opportunity and of responsibility which will be a predominant feature in marital relationships in the latter half of the twentieth century. In addition, there is pressure to re-examine the universality of the law of marriage, where the rights and obligations are fixed by law; and in its place to create a contractual basis for a marriage relationship which can be made subject in its entirety to the needs of individual couples.71 Such a development, indeed, has its attraction; in that it implies a transfer of the consequence of marital and other relationships from the sphere of public law to that of private law. It is probable, however,

69 See especially Helby v. Rafferty, The Times, 5 May 1978. 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.

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C.L.J. Implications of Relationship outside Marriage 269

that these developments will occur at a stage long in the future

and, for the present at least, the law must acknowledge that public

policy supports the status of the marital tie. It is hoped, however, that the legal implications of this status will be extended to cover

all situations where there is a " mutual interdependence" in a

stable relationship.



The Legal Implications of a Relationship outside Marriage

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