As as ‘left out in the cold ‘,when it

As the
Professor at the University of Exeter, Anne Barlow said:” we have not to the date been clear about what we want family law to achieve
for cohabitants”. This underlines the fact that an increasing number of
people are living together without getting married or entering a civil
partnership and the regulation for these unmarried couples known as cohabitants
is still unsatisfactory. In some countries like France and Belgium, unmarried
couples are offered almost the same range of rights as  married couples by giving them the
opportunity to enter in a civil partnership and to opt out of it. Nevertheless,
in England and Wales when you end a relationship with someone you have been
cohabiting with, there is no such a set of rules applied for cohabitants.
Moreover, they may find themselves in a detrimental position comparing to
spouses, as they might be seen as ‘left out in the cold ‘,when it comes to
financial disputes (R.Auchmunty year). Although marriage is still
enshrined  in the general belief as the
most iterated form of union, it is less in demand since the 70’s decade.
Nowadays couples are keen to keep the status of cohabitants, which is proven by
an emerging number of cohabitations. By 2013 there were 2.9 million cohabitants
against 1.5 million in 1996 (references of where I took it). This may be due to
the fact that cohabitation became a legal framework to balance out with the
decline of marriage. ( author year)

In regards to
the French and Belgium cohabitation partnership compared to the English common
law system, can we talk about any specific legal status conferred to
cohabitants? This essay will discuss the willingness of cohabitants for a state
recognised relationship and it will proceed with a tempered approach to
cohabitation partnership.

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Considering
all the aspects mentioned previously, it will be appropriate to acknowledge how
each of those previous legal systems carry out the ‘status’ of cohabitation.
Moreover how they  set up a state
recognition with a specific eligibility for cohabitants. In the French and the
Belgium law system, there are two types of cohabitants. Those who have no
willingness to assert their rights and thus, it is recognised as a ‘de facto’
cohabitation. On the contrary, we find those who want to guarantee the legal
safety of their financially weaker partner. In my opinion the most relevant
fact is that for the ones belonging to the second type of cohabitants, they
have been allocated with a civil partnership, to arrange and sort out clearly
any foreseeable consequences to their union. It is a stronger protection as well
as a kind of legal framework of their status. In France this civil partnership
is known as  PACS ‘pacte de solidarité
civil’ (footprints with the name of the law the year and the number) and in
Belgium it is recognised as the ‘registered partnership’ (wettelijke
samenwoning)( the name of the law, the number and the year). However, in
England cohabitation has been attempted to be defined by the Family Law act of
1996 as: ‘two persons who, although not married to each other, are living
together as husband and wife or (if of the same sex) in equivalent
relationship'(where did I pick this quotation) . Consequently, the vagueness of
the term ‘cohabitation’ may induces a substantial difference between the
English common law system and the French and Belgium cohabitation partnership
in terms of legal status. 

To begin
with, The Pacs and the Registered Partnership are seen as giving more
legitimacy to cohabitants, who decide to enter into a partnership. Indeed they
are similar because they provide cohabitants with property regimes, such as the
division of assets( separation des biens) in France and ‘société d’acquêts’ or
patrimoine d’acquêts’ for the Belgium legal system. Both of those regimes allow
cohabitants to share their patrimonial assets, and to clearly define how they
are going to manage it during the relationship, and in the case of any
breakdown. It gives them more legal safety for the weaker partner. Hence it may
assert they legal status by providing them with a proper patrimonial regime.  In contrast, under common law there is no
such a specific regime and status for cohabitants of opposite sex. In fact only
same sex couples have been offered a legal status under the ‘civil
partnership’. On one hand, They have the same rights as married couples such as
the sharing of debts, inheritance rights and taxation rights. On the other hand
France and Belgium come up with more liberty and flexibility to their
cohabitants in asserting their rights (for same-sex and opposite-sex couples).
In like manner that both of those regimes recognise the right for partners to
increase their status legitimacy, by reaching a personal contract, and as a
consequence to enhance and individualise their rights. This personal
arrangement can include protection of their property, children’s rights and
debts sharing statements.

  They can also opt out of it by a common
decision or on their own decision. This is a way of giving them a choice to
give proper recognition to their respective status, and to organise it. Common
law is more modest about opposite sex-couples ‘status’, by contrast to the
French and Belgium’s system. Subsequently cohabitants are not automatically
given  rights in the case of financial
breakdown. They have no specific rights in the same way that common law would
assert married couples with. In short, France and Belgium’s cohabitation
partnerships are giving a legal recognition to cohabitants of same-sex and
opposite sex. Controversially, this is not the case under the Common law ‘civil
partnership’, which only align same-sex couples as married couples. As an
example opposite-sex cohabitants are seen at disadvantage when it comes to
divide their patrimonial assets comparing to same-sex couples. As an example
civil partners are exempted of inheritance tax in the case of property transfer
if the other partner dies, which is not the case with opposite-sex cohabitants
who are not protected by a partnership. Hence Common Law seems to be less
presumptuous with opposite sex cohabitants who are offered no legal status,
compared with the French PACS and the registered partnership in Belgium.

In point of
fact the Article 515-4 of the French civil code (footprints with the legifrance
reference) says that both partners are entitled to solidarity and to share
community for life, this highlights the legal status and commitment given to
cohabitants. This legal principle is extended to the point, that legal partners
are presumed liable for daily life debts, unless those debts are too excessive.
There is also a presumption of ‘indivision’ of assets. All the assets are
presumed to belong equally to each partner, the reason for this is that PACS as
well as Registered Partnership, are agreements given to cohabitants in order to
structure their life together. In this way It reinforces their status, it seems
appropriate that those cohabitants partnership are aligning cohabitants’ rights
on married couples rights. As an example it gives cohabitants the right to  be covered by their partner social insurance
protection. Which is not the case in England and Wales, because it doesn’t give
them a legal status as stated previously. Nevertheless England has tried to
provide pieces of solution for opposite-sex cohabitants, in order for them to
get more legal, patrimonial safeguards.

As discussed
below, Common Law doesn’t provide cohabitants of opposite sex with a proper
state recognition stated in a partnership, by contrast with the PACS in France
and the registered partnership in Belgium. Hence it is relevant to precise that
cohabitants in England and Wales don’t have any automatic rights by simply
cohabiting with their partner, nevertheless there are pieces of legal
precautions they can take to assert their rights or legal safeguards. To begin
with, among those dispositions there is statutory law. In fact Parliament has
extended through many statutes  the legal
recognition of cohabitants. As an illustration we can talk about the case of
Ghadian v Godin-Mendoza 2004 2AC 557 (HL) (revision guides by J.Herrings)
about cohabitants’ rights to their partner tenancies. In this case Mr
Godin-Mendoza ask to succeed in his partner tenancy agreement after the death
of the latter, because he has leaved with him as ‘husband as wife’. This case
has increased the statutory recognition of cohabitants under Common Law. Indeed
it has stated that no bias should be made in the case of cohabitants rights to
tenancies according to their sexual orientation. Hence, cohabitants whether
they are in a civil partnership or not, have the rights to succeed their
partner’s tenancies. This is a remarkable point in the assertion of cohabitants
status under statutory law, because it gives opposite-sex couples who had to
the time no state recognition, the same rights as same-sex cohabitants; whose
rights are aligned on married couples’ ones. Therefore under the French and the
Belgium law we have a state recognition linked to the civil partnership set up,
which provides cohabitant of any sexual orientation with a legitimate
patrimonial regime, and under Common Law we have an attempt of statutory
recognition. This is underpinned by the assertion of non-molestation order
provided for married couples and cohabitants of same and opposite-sex. This
order also serves cohabitants of opposite-sex legal status, because it gives
them the same legal protection and prosecution rights as a married couples.
Indeed this order is a legal remedy for a victim of domestic violence, in order
to get a protection against his or her molester. By extended their rights and
by the same their ‘partial’ status, this points out the attempt of statutory
recognition for cohabitants of any sexual orientation under Common Law.

 

There is
another legal disposition implemented by the law of England and Wales  for cohabitants of opposite sex, known as the
cohabitation agreement. This is an agreement reached by the parties whose
willingness to share their assets at the end of the relationship is embedded.
Could we compare it to the French and Belgium’s cohabitation partnership?  This contract has to deal with financial
assets and disputes in the case of a breakdown. To be more precise, a
cohabitation agreement  will set up a
financial disclosure in order to make it equitable and clear for each party.
Furthermore it will enshrine what each party hold at the time of the agreement
and the proportion. This point is not present in the Pacs and the registered
partnership, nonetheless we could argue that this cohabitation agreement is
similar to the patrimonial effect of cohabitation partnership in France and
Belgium. That is to say that all those agreements tend to provide cohabitants
with more legal safety and state recognition 
and it may reduce, any disputes about financial settlements.

Common law as
also set up a legal principle of constructive trust in the case where the
cohabitants of opposite-sex buy a property. The constructive trust  has to deal with property and trust law. It
is made for cohabitants of opposite-sex. It supplies them with a legal remedy
to organise the sharing of the property, they bought together. On one hand it
could be compared to the PACS and the Belgium’s patrimonial regime because it
give the parties an opportunity to decide who hold the property of the house
bought in common. On the other hand it is a complete different system because
this principle implies two options, which are proper to England and Wales . In
fact, the first option is for the parties to reach an agreement in which their
arrange the sharing of the house. The second option is to work out a common
intention to share the property, deduced from the cohabitants’ conduct.
Nevertheless it might be primordial to precise that a common intention to share
the property is inferred from an express agreement to share the house  or from a direct contribution to the purchase
of the property. Therefore, it is evident that some inadequacies are remaining
under that principle. Indeed this principle does not bear in mind the ‘gender
gap’ condition that put women in a weaker position. Yet cohabitants are seen as
strangers under the property and trust law. Subsequently it discriminates the
woman position in the cohabitation relationship, indeed woman are seen as the
‘take career’ of the house, while men are seen as the ‘breadwinner’ of the
house, no value of the domestic task could be taken into account under the condition
of direct contribution. As a consequence the financially weaker partner is put
in a detrimental position comparing to the wealthiest one. In addition to this,
the court has no regards to the participation of each partner to hold the
property, hence the only power of the court is to declare who owns what,  over the property acquired. No power of
assertion is attributed to the court. It is essential to bring a certain critic
over this principle of Common Law comparing to the French and the Belgium
system. Indeed the PACS and the registered partnership are giving a proper
state recognition, and patrimonial regime in which the parties’s assets are
divided without any condition of contribution and the express declaration.
Thus, we can deduce that the gap between gender is less important in those
regimes. Why ? because with the PACS and the Belgium cohabitation partnership
both of the partner with no regard to their contribution are presumed to own
the property equally, unless one of them can prove that the house has been
bought in his own name. 

To sum up,
France and Belgium seem to provide a legal status under a cohabitation
agreement, with a patrimonial regime that allows cohabitants to have nearly the
same rights as married couples. Hence those regimes tend to offer a state
recognition to cohabitants whether they are opposite-sex or same-sex couples.
To such a degree, cohabitants’ willingness to be  legally recognised might be ensured. By
contrast Common Law is simpler in his way of seeing cohabitants, indeed they
have no ‘legal status’ especially same-sex cohabitants. Nevertheless Parliament
has enshrined some of their rights through statutory law. And there are legal
remedies offered to cohabitants of both same and opposite-sex. It is right to
sustain, that although those regimes provide 
their cohabitants with either a ‘state recognition’ or ‘statutory
recognition’, there are still many inadequacies remaining in each of those
systems.  

As discussed
below, a tempered approach to each of these legal system is required because of
the inadequacies remained. Pacs under French law has common points with Belgium
law, because they both provide a legal safety for the financially weaker
partner in the cohabitation.  Nonetheless,
none of them are pretended to be compared to marriage, indeed although they
both give a state recognition to cohabitants, they both present disparities for
cohabitants. To illustrate this argument, the patrimonial regime provided for
both regimes, states that each partner is presumed to hold the property of his
own assets if he can prove that he is the legal owner of it, unless it is
presumed to be hold jointly. This is linked to the regime of constructive trust
under Common Law. Thus there is the same difficulty on the case of sharing the property.
In the event of a breakdown the sum invested in the purchase of the house is
going to be the sole ground of sharing. This highlights to difficulty remaining
in sharing the property under every of those legal systems. Even if  the PACS and Registered Partnership have both
set up that there is a presumption of ownership, in the case when the property
can’t be proven by the legal owner; It is still wearisome to share equally the
ownership of the house after an eventual breakdown. As stated previously the
principle of constructive trust seem to provide cohabitants of opposite-sex
with a legal remedy, it has a consequence on the situation of the weaker
partner. Indeed women are less likely to acquire an equal proportion of the
property than the men. It is appropriate to cast a shadow over the flexibility
given to cohabitants in a PACS or a registered partnership. Because they have
the right to reach a personal agreement to assert their inheritance safeguards,
no courts will have a regard on their agreement, hence it may lead to certain
complications for the future. Even if both of these regimes tend to provide a
‘legal status’ to cohabitants inheritance rights are not guaranteed, without a
will. This complexity is  also expressed
in the Common Law.

 The Belgium Registered partnership is more
complex than the Pacs because, it includes closed relatives, as a consequences
people from a same family can enter into an agreement to reach to provide legal
safety to partners who are not legally entitled to get married. This notion has
been discussed in the French Pacs who ultimate purpose was to offer people from
the same-sex, a legal state recognition. Nevertheless this has been rejected in
order to avoid any case of incest. But Belgium Registered partnership requires
no ‘conjugal relationship’ which may lead to certain ambiguities.

It is
relevant to state that one of the most major difference between the French
cohabitation partnership and the ‘statutory recognition’ offered by the Common
Law system, is on one hand  the French
system by providing a state recognition is listing all the consequences of the
PACS in the civil code is attempting to assert clearly the outcomes of a
cohabitation partnership. On the other Hand cohabitation is seen under the
article 515-1 of the civil code as an agreement, which means that every case of
cohabitation breakdown must be different, therefore there is a lack of binding
precedent to implement legal remedies to cohabitants. by contrast Common Law,
is providing cohabitants of opposite-sex with statutes to extend their legal
safeguards nonetheless this statutory recognition as unconditionally different,
lead cohabitants in a blurred situation. In other words cohabitants relied on
the parliament statutes to assert their rights. This underlines the complexity
of providing cohabitants with a specific ‘legal status’.

  All of this contributions and disparities
considered, it is relevant to mention the reforms and the changes that could be
provided in order to improve those regimes. Indeed Pacs has been recently
reformed to simplify the change of patrimonial regime for cohabitants. Indeed
if cohabitants want to implement their rights by changing their regime, it is
now simplified.  When the cohabitants
don’t have minor children, they only have a duty of information to their
children. As a consequence it’s increasing their opportunity to assert their
‘legal position’. But it does not give any specific remedy to the inadequacies
presented below. The ultimate change is concerning the Common Law reform, as
stated below the legal principle provided to cohabitants  relied on property law and trust law which is
seen as not appropriate to deal with Family Law issues. Hence the law should be
more ductile in her approach of cohabitants rights. To begin with, one argument
is to give cohabitants the possibility to opt out of a partnership as the
French and Belgium cohabitants’ partnership, and to assert them with the same
rights as married couples but with smaller proportions. Indeed, in 2007 the Stationary
office has proposed all these arguments by extended the Matrimonial Causes Act
of 1973. Nonetheless this project did not come into force, indeed it is a
challenge to treat cohabitants as married couples. Specifically because it
would put the notion of marriage at risk. To be more precised by giving
cohabitants the same rights as married couples, it may incite them to be more
reluctant to get married.

On the whole,
challenging each legal system to implement cohabitants with a specific ‘legal
status’ is seen as beyond workable. Nevertheless, some countries as Scotland
provide more financial safeguards to cohabitants. This is stated in the case of
Mr. Grow v Mrs Grant, in this case the financial weaker partner has been
offered the probability to share the property of her partner, although she has
no legal ownership of the property. This has been implemented by the Civil
Partnership and Certain Rights and Obligations of Cohabitants Act of 2010
(s.173).

In short,
England and France are providing cohabitants with different recognition, even
so there are still some inadequacies. Furthermore it may seem challenging to
solve these disparities  by reforming
those previous systems, yet Scotland has set up a leading change in the
matter. 

 

As this essay has demonstrated, there is no
country that provide cohabitants with a better legal status, but some of them
like France with the PACS and Belgium with the Registered Partnership intend to
supply cohabitants under a partnership, with nearly the same rights as married
couples. Nevertheless, It  remains
visionary to provide cohabitants with a defined and stated ‘legal status’.
Indeed the vague-ness of the term cohabitation has demonstrated that it is very
difficult to set up a complete patrimonial regime and legal safety for all the
cohabitants. In addition to this, in some countries like France and Belgium the
flexibility given to the parties has induced a certain perplexity to the
consequences of sharing the property after a breakdown, and the complications
concerning inheritance rights. Furthermore England has aroused  a worriment about the weaker partner’s
position under the principle of constructive trust. By the same token, in each
of those legal regimes, during a breakdown many references are made to the
general law. This accentuates the piecemeal remedies of the current systems and
the unappropriated fuse of property law and trust law with family Law. Hence
providing cohabitants with state recognition or statutory recognition, has the
earmarks of challenging several aspects. As an example the meaning of marriage,
indeed providing couples with the same body of rules as married couples may
enfeeble the interest of getting married. For this reasons the ‘legal status’
of cohabitants whether they are insured with a partnership or not, is very
visionary to assert. Notwithstanding these previous statements, Scotland  has lead a precedent  in this matter, by giving rights to the weaker
cohabitant  to the hold of the property.