In the past, these relationships were called extramarital cohabitation. Put simply, men and women living together do not have the rights and duties married couples have. Because their relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply. This is the case irrespective of the duration of the relationship. Therefore contrary to popular belief, the assumption that if you stay with your partner for a certain amount of time a common law marriage comes into existence whereby you will obtain certain benefits is incorrect.
It’s a living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.
The particularity of cohabitation is that a couple are living as husband and wife without actually being married.
In determining cohabitation, a number of factors are taken into account:
· the couple living under one roof;
· the parties having on-going sexual relationship;
· the financial support of one party to the other;
· the stability and permanence of the parties; and
· whether the reasonable person, taking account of the couple's life together, would deem them as an unmarried cohabiting couple.
There are a number of differences, however, between cohabiting couples and married couples which include the following:
· there are formalities such as a decree of nullity or divorce to end a marriage but the same does not exist for cohabitation;
· a married father is afforded greater status with regards to children and parentage;
· a cohabiting couple cannot make a joint application to adopt a child; and
· The law with regards to financial provision during marriage and at the breakdown of marriage does not apply to a couple cohabiting.
What does the bible say about Cohabitation?
With the option of cohabiting showing face, parents demanding heavy bride price and the number of independent and empowered women growing each day, young people are increasingly brushing marriage aside.
God’s Word, is perfect, and never changes. Sin remains sin, even when it becomes widely accepted. From what we can read of what Jesus said and Paul wrote, marriage between a man and a woman is the only form of partnership that God accepts and blesses. All sexual relationships outside marriage are considered fornication. (Hebrews 13:4.)
Cohabitation and legislation
Unlike marriage, which is regulated by specific laws that protect the individuals in the relationship, cohabitation offers no such comfort. For example, when a cohabitant dies without a valid will, their partner has no right to inherit under the Succession Act. A cohabitant can also not rely on any of the laws to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.
For example, In South African banks normally do not allow joint accounts for cohabitants. An account will usually be opened in one partner’s name, but giving the other partner co-signing rights. Therefore, the partner in whose name the bank account is will be liable for any monies owed to the bank in case of an overdraft or loan. Fortunately, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is adopted into legislation, however, the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.
The law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union.
Cohabitation agreements
Life partners (regardless of their sex) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union and the (patrimonial) consequences of the termination thereof. Such agreements are sometimes referred to as cohabitation contracts or domestic partnership agreements.
It’s becoming more common for partners in a cohabitation relationship to draw up a contract. Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. Parties may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a court for assistance. In most cases, a court will enforce the agreement. Cohabitants who fail to draw up a cohabitation agreement or contract will have no legal protection, unless they can prove the existence of a universal partnership.
The contents and nature of a cohabitation agreement will depend on the needs of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy.
When the relationship ends
Claiming back
As no reciprocal duty of support between partners in a domestic partnership exists, there is no enforceable right to claim maintenance, either during or upon termination by death or otherwise of the relationship, unless maintenance is regulated in a cohabitation agreement. There is also no action for claiming damages in the event of the unlawful death of a partner.
· Cohabitants cannot reclaim monies that they spent on maintaining their partner during the relationship, unless they can make out a case for unjust enrichment.
· Similarly, donations made between partners in a cohabitation relationship cannot be claimed back by the donor.
There is no law that allows for a person’s pension assets to be transferred in a cohabitation partnership. A cohabitation agreement will have no effect either, as it would not be enforceable against the pension fund. Even those who are able to prove the existence of a universal partnership and a joint estate cannot share in their partner’s pension assets on termination of the relationship, as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, especially since cohabitants can be awarded these assets on the death of their partners. Cohabitants also cannot bind their partners to contracts with third parties for household goods.
Property
A partner may apply to court for an order to divide the property of the other partner in a fair manner. The partner who applies for the order must be able to show that he/she contributed, directly or indirectly, to the maintenance or increase in the other partner’s separate property during the relationship.
Owned property
In the absence of a cohabitation agreement or a proven universal partnership, private property acquired by the cohabitants prior to their relationship belongs to the partner who originally acquired it and no community of property can be established. It therefore follows that a cohabitant who is not the owner of the property has no special right to occupy the common home. Cohabitation per se does not give rise to automatic property rights, but the ordinary rules of the law of contract, property and unjustified enrichment might be invoked by cohabitants to enforce their rights.
In terms of the Domestic Violence Act, a right of occupation is conferred upon a cohabitant. The Act speaks of ‘parties to a marriage’ but deems this expression to include men and women living together as husband and wife. The Act also provides remedies for violence, including orders preventing the owner of the common home from entering or living in it, and from ejecting the non-owning partner.
Similarly, if there is no cohabitation agreement or proven universal partnership between the cohabitants, property bought during the relationship will belong to the purchaser thereof, unless it can be proven otherwise.
When a property is co-owned and registered in both cohabitants’ names, they each have an undivided share in the property and are joint legal owners of the property. They are also both liable for the expenses and losses associated with the running and upkeep of the property. The mortgage bond will be in both their names, thus they will be jointly and severally liable for paying the bond. If one of the cohabitants paid more than his/her share of the expenses, the difference may be recovered from his/her partner.
If one partner defaults on his/her share of the monthly bond installments, the bond holder can either obtain a judgment against both cohabitants for the full amount outstanding on the mortgage bond, or a court order to force sale of the property to cover the debt.
If partners who are separate homeowners decide to live together, usually one will sell his/her home and move in with the other. If one partner gives up his/her property and over the years pays the proceeds of the sale towards the other partner’s property or the new family, or invests in the new joint household in any way, when they split up, the other partner will be entitled to keep the house and, in the absence of an agreement, the non-property owning partner may be left with no home. A partner may claim against the other on the basis of unjustified enrichment if he/she made a genuine financial contribution, for example where both contributed jointly to the purchase of a house but it was registered in only one of their names. Unjustified enrichment is the general principle that one person should not be able to benefit unfairly at the expense of another.
When the property is in both partners’ names, neither can evict the other from the property. One cohabitant may, however, approach the court to terminate the joint ownership and divide the property in cases where the cohabitants can’t agree. The court will normally appoint a receiver or liquidator who will dispose of the property by way of a private sale or public auction. The proceeds from the sale, minus the receiver or liquidator’s costs and expenses and those of the auctioneer or estate agent, will be divided between the cohabitants according to their respective shareholding. If one partner can prove that he/she contributed towards any improvements and should therefore receive a greater share, he/she may claim unjustified enrichment. So if one partner contributed more towards the maintenance and upkeep of the property, then he/she will be able to claim such payments in addition to his/her share. The court has a wide discretion and may even award the property to one partner subject to the payment of compensation to the other. Nothing can stop a cohabitant from selling his/her share in the property to the other cohabitant or to a third party without the other cohabitant’s permission, unless an agreement exists to the contrary.
If, however, the property is registered in only one cohabitant’s name, the other partner has no claim or right to the property, and may be evicted, although is entitled to reasonable notice. In addition, the cohabitant who owns the property can sell it without notifying the other.
In a similar vein, if the cohabitants acquired goods together, they both have a legal right to such goods. Upon termination of the relationship, if the couple is unable to agree how to divide the goods, either may approach the court to institute a division of the assets. In such cases, the court will normally appoint a receiver or liquidator to sell the assets and pay the proceeds to the parties. The court normally has a wide discretion and will make an order that is fair and equitable under the circumstances.
Leased property
If cohabitants enter into a joint lease, they will be jointly liable for the rent. Each of the cohabitants is only liable for his/her share of the rent. If the lease agreement states that they are both jointly and severally liable, then they each may be liable for the whole amount of the rent. Where the relationship is terminated before the lease has expired, the parties will have a deadlock if they cannot decide who is to remain in the home. In this event, they both have a right to remain in the home.
If they do decide, and the lease agreement creates joint and several liability, if the cohabitant who remains defaults on rent payments, the lessor will have a claim for full payment against both parties. Where the cohabitants decide between themselves that one partner will be indemnified from further liabilities to pay rent, such an agreement will only be valid and binding between the two of them. The lessor may still hold both of them liable for rent payment.
In cases where the lease agreement is signed by only one partner, the non-tenant partner has no legal rights and responsibilities, and is therefore not liable to pay rent. However, he/she also has no security of tenure and can be evicted by the tenant partner if the relationship fails. Note that where the lease agreement contains a clause prohibiting occupation of the premises by any person other than the tenant, the lessor has the right to terminate the lease if he/she discovers that the tenant is cohabiting.
Cohabitation and death
Inheritance
There is no right of intestate succession (when someone dies without a will) between domestic partners, no matter how long they have lived together. A partner is not automatically regarded as an heir or dependant. The rules of intestate succession as set out in the Intestate Succession Act, 1987, are clear. In the event of there being no valid will, the beneficiaries are, in the first instance, a spouse or descendants or both. In the event of there being no spouse or descendants, the estate devolves upon other more distant members of the bloodline.
If the surviving partner is not named in a will, he/she will be faced with the monstrous task of having to prove his/her specific contribution to the joint estate before entitlement will be forthcoming. Proving actual contribution is often extremely difficult, especially when a partner has died. Litigation is usually lengthy, costly and unwelcome, particularly at a time already fraught with emotional trauma. This problem is exacerbated if the deceased had not divorced a previous spouse. In law, the first spouse clearly has the leverage to proceed and claim the entire estate.
There is no obstacle to making specific provision for a domestic partner in a will. A person is entitled to leave his/her estate to a partner even to the exclusion of his/her spouse.
Cohabitation law and rights for unmarried couples
The law does not recognise a “common law wife” or "common law husband". Regardless of how long a couple has been living together as husband and wife, they are not afforded the same rights on the breakdown of their cohabitant relationship as those who are married and embarking upon a divorce.
The fact that people live together in the same house does not necessarily mean that they both have an interest in that house – unless it is jointly owned.
Living together, rather than marrying, can be a financial disaster for a dependent cohabitee in the event of the relationship breaking down. There is no maintenance entitlement, and no automatic entitlement to property, capital or pension claims. The children of a “common law” relationship may also be financially disadvantaged, although applications may be made on behalf of the children under the Children Act.
Trust and land law is applied in the event of any property disputes.
It is vital that ownership of real property is agreed before the purchase takes place, and is reflected in an appropriate Declaration of Trust. In addition, if it is intended for both parties to benefit financially from the cohabitation if it breaks down, then it is vital that an agreement is drafted to reflect this.
Advantages and Disadvantages of cohabitation
For a short informal arrangement, cohabitation is fine, as neither party is possibly investing much in the relationship and you may not feel the need to set out exactly how any property is owned.
But the longer people live together the more it becomes important to clearly establish who owns what. People who have lived together for many years in a property owned by the other partner may find on separation that they have absolutely no interest in that property much to their surprise. So if you are thinking of cohabiting for any length of time you should take legal advice as there may be some unexpected consequences.
Separating when living together if not married
Generally this is much simpler than if you are married, as there are no legal relationships, rights or responsibilities to deal with other than the ownership of any property.
The property in which you live is either owned jointly or by one or the other. If it is in the name of one person it is extremely difficult for the other to claim any interest in it even if you have been living together for some considerable time. This does come as a surprise to many people.
If the property is owned jointly, then you will need to decide what to do with the property when you separate.
Apart from property ownership, you will have claims upon each other's assets or pensions when you separate after living together without having been married.
Vicky Wandawa wrote an article in the New Vision on 7th May 2012 titled “Cohabiting does not make you a wife”:
They built a life together. They were cohabiting. Like any other married couple, their ‘marriage’, too, faced rough waters through bitter fights and disagreements. But there were also calm moments, when they laughed their hearts out. They had children and purchased property. It was a cosy home. She was too busy being a mother, minding the children’s temperatures, meals, her husband’s health and beating her deadlines at work, to even think about the fact that in case of a split, she would have no claim to the property he bought in his name, since they were cohabiting. So Prim (not real name) could not believe it when strangers walked up to the house she and her husband had built over 11 years and politely asked her whether she was willing to part with not less than sh700,000 for rent or leave the house. Prim’s parents had looked forward to a big wedding for their first-born daughter, but got pregnant before the function. Unhappy, they demanded to know why she had gotten pregnant before marriage. To them, living with the man was not enough; they wanted her walked down the aisle. The mistake, as they referred to the pregnancy, was forgiven. A year later, she was castigated when she made the same ‘mistake’, yet again — a second child.
Still, no wedding ring on her finger. When she made the third ‘mistake’, Prim went into hiding because she knew her parents would not forgive her. Following the birth of her third child, she thought it was about time she introduced her husband to her family and perhaps had a wedding. To her dismay, she says, when she brought up the idea, he said he had bigger issues to think about, especially at work, hence the start of fights between the two. With the pressure from her relatives and a cold husband, whom she discovered was having a hard time at his job being investigated for fraud, she sought solace in a male colleague. Though she admits she had feelings for him, she never slept with him and it only ended at phone calls and coffee dates, when she wanted a shoulder to lean on. Her husband, however, got wind of the dates and did not believe that they never slept together. He was saddened by the fact that she was desperate for a wedding to the extent of looking for it from a man who was not the father of her children. Then the silent treatment began.
Next was a series of fights over the phone calls her ‘husband’ received from his girlfriend, whom she suspected was a university student. It got so bad that he would actually answer the phone calls in their bed, without a care that his ‘wife’ was in hearing shot. After a long spell of silent treatment, he asked her to dress up the children, saying they were going to visit their grandmother. Surprisingly, in the evening, he returned home without them. When she demanded to know where they were, he insisted they were safe at their grandmother’s, who had insisted they stay over. The following day, he dropped her off at work, but did not pick her up as he always did. And when she returned home, he was not there. In their bedroom, she noticed that a few of his belongings were missing. That is when she suspected he had left her. At about 9:00pm, her fears were confirmed when two men knocked at her door and informed her that she had to pay the rent or leave the house. Hoping they were mistaken, she called her husband, only to be told he had sold off the house since she had no claim to it. He told her she could pick up the children when she had a decent place to stay.
And he was right; she had no claim to the house, because although he had built it while they lived together, it was registered in his name.
In Uganda, cohabiting does not constitute marriage, despite the number of years a man and a woman have lived together and children they have had.
Susan Labwot, a lawyer and gender officer with the Uganda Women’s Network, says cohabiting is not recognized under any law in Uganda.
“A cohabiting woman is not protected under the law as a wife. The presumption of marriage is that when it ends, the property you bought together is split equally. With cohabiting, you only leave with what personally belonged to you.”
While many would feel empathy for a woman kicked out with only her personal property, Anthony Ojok, an advocate and former registrar at the Uganda National Registration Bureau, says the blame mostly lies with the women because of their love for luxurious wedding ceremonies.
“It’s the women who complicate things. They want to hold big introductions and wedding receptions. With such demands, a man will keep putting off the wedding and before you know it, they have cohabited for years and even have children.”
He says although cohabitation has its advantages, these are outweighed by the disadvantages.
“Cohabitation law in the offing”: Article By Henry Sekanjako:
The cohabitation clause was removed from the Marriage and Divorce Bill
Government is drafting a law to guide on property sharing between cohabiting couples, upon divorce.
According to Vastina Rukimirana Nsanze, the chairperson Uganda Reform Commission, the new law was informed by the Marriage and Divorce Bill which has been reviewed, resulting into the deletion of the cohabitation clause from the Bill for separate law.
Tabled in December 2009, the Marriage and Divorce Bill provided for the types of recognized marriages in Uganda, marital rights and duties, recognition of cohabitation in relation to property rights, grounds for breakdown of marriage, and rights of parties on dissolution of marriage.
“We have deleted the cohabitation clause from the Marriage and Divorce Bill, so that we don’t derail this particular Bill, we are going to develop a separate law on cohabitation,” Rukimirana said.
Will the bill to recognise cohabitation put marriage to test?
The Kenyan cabinet has approved a bill that will recognise cohabiting after six months as legal marriage. Joyce Nyakato explores the bill’s merits and demerits as well as comparisons with the Uganda Marriage and Divorce Bill, 16th November, 2012
More and more young couples are increasingly cohabiting even in communities that once shunned the practice. For many couples who choose to cohabit, convenience is cited as the main reason. That is, instead of having to pay separate bills for water, electricity and rent, the couple can just rent one house and share the bills.
They also claim they need to get to know more about a person before committing to them ‘till death does us part”. However, many people have walked away from such relationships more hurt than happy. In many cases, men have been known to walk out even after children have been born.
Women have also been left empty-handed when the partners they have been cohabiting with die and are left to raise their children single-handedly.
A Kenyan Marriage Bill, which is in its final stages, if enacted, will recognise any relationship where a couple has cohabited for more than six months as a marriage and registered as such. If the new bill is passed, it will give the local chiefs power to register relationships where couples have cohabited for more than six months as legal marriages.
This ensures that in the event of a break-up, the woman and any children born in that relationship receive the necessary support, especially financial.
The bill, cleared by the Commission for the Implementation of the Constitution, provides for court to compel whoever is reluctant to abide by this law to do so. However, the Kenyan cabinet has been quick to assure that Christian, Islamic, Hindu as well as marriages consummated under Civil and African Customary law will all be protected.
According to the Kenyan cabinet, the bill is intended to protect families, especially the children born out of such arrangements.
The Marriage Bill was originally proposed in 1981, but was condemned by politicians for granting women “too many rights”. It was then revived in 2007 and thrown out over similar concerns. The bill was reintroduced in March 2009 and the debate has been on-going.
As expected, sections of the bill have been widely condemned by the Christian and Muslim religious leaders in the country. The bill, which also addresses bride price and widow inheritance, was approved by the cabinet. It will become law once passed by the parliament.
While many do not agree with cohabiting being accorded legal status, they perhaps reason that the bill will deter people from living together without any intention of getting married legally.
“It will legally protect children who are born under these arrangements,” says Grace Wanjiru, a Kenyan. She reasons that often, when these couples split, the child is raised in a single-parent home.
But then again, Wanjiru raises the concern that marriage will now be taken less seriously. “Why would someone go through the fuss of marrying someone when they can just live with them and be recognised as their spouses six months later?” she asks.
Whereas the bill seems to have striking similarities with its Ugandan counterpart, the Kenyan one looks to recognise the relationships where the couples are cohabiting in a much shorter time, while the Ugandan one, which was shelved, is looking at two years.
Many Kenyan men have protested against the bill. They reason that the proposed bill is only looking out for the interests of women. Definitely the bigger losers will be the men, who want to cohabit, enjoy the benefits of marriage without having to legally commit to that partner. At the same time, this bill is also empowering some calculating women to fleece men of their property.
But then again, how is an unwilling man fleeced? Sam Maina explains that cohabiting usually starts with a night-over, which may grow into a week-over and then a month-over. “Before you know, it is six months already,” he says. “She even insists on leaving her property behind.” So what does this tell the men who want to hold on to their property? “If you are not sure about committing to her, you either don’t live with her or if you do, you have to dump her before the six months elapse,” he reasons.
Worryingly, we may see many break-ups as couples living together will not be willing to tolerate each other at the risk of being registered as married.
Men would also have to take a stand against some fleecing women, who intentionally leave their property in their homes. This also includes girlfriends who assign themselves marital tasks in a desperate attempt to trap their boyfriends into committing to them.
What happened to the Ugandan Marriage and Divorce Bill?
According to Sarah Achieng, the Tororo district Woman MP, the Marriage Bill has been pushed over to the ninth Parliament. However, there are still many controversial issues that have to be addressed before the Bill is passed into law.
Men are not happy with the bill because they think it favours the women. However, not all the women are favoured by this cohabiting arrangement. In a way, it favours polygamy, because it would allow a man to have as many other partners as he chooses. This puts the family at a disadvantage.
According to Alice Alaso, the Woman MP for Serere district, the Kenyan and Ugandan bills have striking similarities. Since Kenya and Uganda have similar cultures, the bills are meant to address similar issues. She suggests that as much as the laws are being made to improve the status of women in society, the feminists also have included components in the bill, which are meant to push their agendas.
“Allowing women to cohabit freely and be recognised as married is not right,” Alaso says. “Much as the bill is aimed at building families, it is actually breaking them.”
She has vowed to block it, should it come up for discussion in parliament.
The only fitting thing that could be done for women cohabiting is perhaps allow the couple to share the property equally in case of a split up. However, recognising them as married people is too much.
Government to develop separate law on cohabitation
Uganda’s Law Reform Commission has changed the name of the Marriage and Divorce Bill into Marriage Bill.
Nsanze says cohabitation needs to have a bill of its own, with a further study. She says cohabitation is a reality that has to be dealt with, noting however, that this is not meant to make cohabitation a form of marriage, but for property rights and rights of children born during cohabitation.
Cohabitation, which stirred controversy when the Minister of Justice and Constitutional Affairs, Kahinda Otafire asked the Law Reform Commission to review the bill, has been removed.
“We have deleted the cohabitation clause from the Marriage and Divorce Bill, so that we don’t derail this particular Bill, we are going to develop a separate law on cohabitation,” Vastina Nsanze, the chairperson Law Reform Commission said while presenting a copy of the revised bill to the Speaker of Parliament Rebecca Kadaga on 6th June.
Removing of cohabitation clause from this bill means couples cohabiting cannot claim rights of sharing property in case they intend to dissolve their relationship. The removal of cohabitation from the bill means the issue of sharing property for those that cohabit does not arise.
Tabled in December 2009, the Marriage and Divorce Bill stated that aside the recognized forms of marriages in Uganda, marital rights and duties, even in a cohabitation relationship, the parties had the right to share property, upon “divorce”.
This Bill was an amalgamation of the current Marriage Act and current Divorce Act, which were inherited from the British.
The bill outlaws return of bride price and prohibits inheritance of widows. It also notes that Marriage gift is not an essential requirement.
Nsanze, according to URN, says cohabitation needs to have a bill of its own, with a further study.
URN adds, she says cohabitation is a reality that has to be dealt with, noting however, that this is not meant to make cohabitation a form of marriage, but for property rights and rights of children born during cohabitation.
FITZPATRICK Vs STERLING HOUSING ASSOCIATION
This was a case heard by the Judicial Committee of the House of Lords regarding the meaning of the word 'family' with regards to the Rent Act 1977. The Lords found that a gay couple living together could be seen as a family for the purposes of housing law, and that a family relationship did not require either a blood relationship (as between parent and child) or marriage (at the time, neither marriage nor civil partnerships were available for same-sex couples).
Under the Rent Act (and later amendments under the Housing Act 1998), protected tenants could pass on their tenancy to spouses or cohabiting family members upon their death. The claimant in this case, Martin Fitzpatrick, had lived with his partner John Thompson from 1976 until his death in 1994, having met in 1969. Thompson had rented the flat from 1972 onwards. The law allows for succession in a tenancy agreement for spouses, those "living with him or her as a husband or wife", and members of one's family who have resided in the flat for at least two years before the tenant's death. The Court of Appeal rejected Mr Fitzpatrick's initial appeal, citing the precedent of Harrogate Borough Council v Simpson where the Court of Appeal determined that "living together as husband and wife" did not extend to a homosexual couple. The Court of Appeal decision expressed considerable sympathy for the appellant, citing his selfless dedication to caring for his partner for many years, but stated that it was the job of Parliament to change the law to extend protected tenancy succession rights to same-sex couples.
The House of Lords allowed that the appellant and his partner did constitute a family for legal purposes. The Lords decision agreed that there was not a spousal relationship (which they interpreted to mean a heterosexual marriage), nor were they "living together as a husband or wife" (which they interpreted as providing protection only for unmarried heterosexual couples), but stated that a long-term same-sex relationship could be considered a family even without the ties of blood or marriage. The decision was welcomed by gay rights campaigners including the campaign group Stonewall.
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as a spouse someone living with the tenant as husband or wife.
Held: The claim to inherit as a spouse failed. However, the meaning of ‘member of a family’ could include a same sex partner who had been involved in an established monogamous relationship. Such a person could not be a ‘spouse’ within the meaning of the Act, but the family provision was more widely framed and allowed the court to take account of changes in society. Thus a same sex partner coud take a succession of a property from that partner on death on the basis of his being a member of the family. ‘The hall marks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well. In de facto relationships these are capable, if proved, of creating membership of the tenant’s family.’
Lord Nicholls of Birkenhead asked ‘can the expression ‘family’ legitimately be interpreted in 1999 as having a different and wider meaning than when it was first enacted in 1920?’ He answered Yes’: ‘ A statement must necessarily be interpreted having regard to the circumstances when it was enacted. It is a fair presumption that Parliament’s intention was directed to that state of affairs. When circumstances change, a court has to consider whether they fall within the parliamentary intention. They may do so if there can be detected a clear purpose in the legislation which can only be fulfilled if an extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it was expressed.’
Lord Slynn of Hadley explained that when interpreting some statutes: ‘It is not an answer to the problem to assume . . that if in 1920 people had been asked whether one person was a member of another same-sex person’s family the answer would have been ‘No’. That is not the right question. The first question is what were the characteristics of a family in the 1920 Act and the second whether two same-sex partners can satisfy those characteristics so as today to fall within the word ‘family’. An alternative question is whether the word ‘family’ in the 1920 Act has to be updated so as to be capable of including persons who today would be regarded as being of each other’s family, whatever might have been said in 1920.
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