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Unmarried Co Habiting Couples Notes

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A more recent version of these Unmarried Co Habiting Couples notes – written by Oxford students – is available here.

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Unmarried Co-habiting couples What are unmarried co-habiting couples? The difficult in the definition

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Herring: The term "co-habiting couple" can range from a group of students living together in a flat share o To a boyfriend and girlfriend living together while contemplating marriage
? to a couple who have deliberately avoided marriage but wish to live together in a permanent stable relationship

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Barlow, Burgoyne and Smithson (2007): o Four types of cohabitees:
? The Idealogues

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Those who are in long term committed relationships but are opposed to the ideology of marriage
? The Romantics:

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Those who expect to get married eventually and see cohabitation as a step towards marriage o Which they saw as a serious commitment
? The pragmatists

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Those co-habiting who were deciding whether to get married based on legal or financial grounds
? The uneven couples

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Where one partner wanted to marry and the other did not!

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Kimber v Kimber o Tyrer J:
? The following factors might be considered in deciding whether there is cohabitation:

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Whether the parties live together under the same roof

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Whether they shared in the tasks and duties of daily life

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Whether the relationship had stability and permanence

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How the parties arranged their finances

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Whether the parties had an ongoing sexual relationship

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Whether the parties had any children and how each party acted towards each other's children

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The opinion of the reasonable person with normal perceptions looking at the couple's life together

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Some statutory attempts at defining it: o S.144 (4)(b) Adoption and Children Act 2002:
? "Two people (whether of different sexes or the same sex) living as partners in an enduring family relationship"

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Can adopt o Family Law Act 1996:
? "two or more persons who, although not married to one another, are living together as husband and wife or (if the same sex) an equivalent relationship.

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Some Stats o National Statistics (2007): 14% of Families are cohabiting couples o National Statistics (2008): 44% of children were born to unmarried couples o Matheson and Babb (2003): 80% of births to unmarried couples are registered by both parents What's the difference between the legal positions of spouses or civil partners and unmarried couples?

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The Formalities at the beginning and end of the relationship o How they are different
? The law closely regulates the beginning and end of a marriage or civil partnership.

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It sets out certain formalities which must be complied with in order for a legal marriage/civil partnership to start o And it only ends when the court grants a decree absolute of divorce or a dissolution
? Every legal marriage in the land is registered - there is no such requirement for cohabiting couples
? One consequence is that you can cohabit with whoever you want. o Are we overstating this?
? It's true that the married need to divorce and cohabiting couples can just separate as they wish
? However, the formalities are rather easy to comply with both at the start and end of the relationship

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If you are unmarried, there's an awful lot of paperwork and potential litigation to go through in order to separate joint bank account, bills, house etc.

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Financial Support o As in Week 2 notes, there are quite a lot of differences between married couples and unmarried couples in terms of court powers of ancillary relief
? The court can redistribute the assets of a married couple one to the other on divorce
? The court can only declare ownership of assets for an unmarried couple
- per Stack, it cannot change who actually has what based on fairness. o However...
? It will matter a lot if you're wealthy - but most couples don't actually have that many assets, so the paperwork will be fairly simple for both married and unmarried couples
? And the first thing the courts do will be to specify under Child Support Act 1991 and Children Act 1989 the position of maintenance

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This will often take most of the assets

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And applies equally to married and unmarried couples
? And the courts have fought back against the lack of formal ancillary relief provisions by deploying equitable doctrines such as the constructive trust in order to provide some relief

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- although obviously there's quite a lot of litigation involved in this.

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Parental Responsibility and Legitimacy of Children o Legitimacy of children used to be a key difference between married and unmarried couples, but this is not really relevant anymore o What is relevant is that while all mothers have parental responsibility
? There is no responsibility given automatically to the father if the couple are not married (although they can register on the birth certificate) Specific legal recognition for co-habiting couples

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Provision on death o Inheritance (Provision for Families and Dependents) Act 1975 s.1
? Where ...a person dies ...and is survived by any of the following persons:
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