INTRODUCTION
De facto cohabitation describes a relationship where two people live together as a couple but are not married. As society changes, more couples choose to live in such relationships. This creates legal problems, especially when couples cross international borders. Private international law, also known as conflict of laws, is the body of rules used to resolve legal disputes that have a connection to more than one country.
This essay explains the challenges that de facto cohabitation poses for private international law. It will outline the main questions that courts face, the different legal approaches taken by countries, and the specific issues that arise in disputes. The position in England and Wales will also be considered to show how one jurisdiction deals with these problems. The central issue is that the lack of uniform recognition for cohabitants leads to legal uncertainty and inconsistent outcomes in cross-border cases.
THE MEANING OF DE FACTO COHABITATION
De facto cohabitation refers to a situation where two persons live together in a relationship that is like a marriage but has not been legally formalised. This type of relationship involves factors such as a shared home, financial interdependence, and an emotional and physical relationship (Barlow and Smithson, 2010).
Different legal systems use different names for this kind of relationship:
- Common-law marriage
- Domestic partnership
- Live-in relationship
- Unregistered partnership
The key feature is the absence of a formal marriage certificate. This lack of formal status is the primary source of legal difficulty in private international law.
PRIVATE INTERNATIONAL LAW: CORE QUESTIONS
When a cohabiting couple with connections to different countries separates or one partner dies, courts must answer several preliminary questions to resolve any dispute. These are the core questions of private international law:
- Jurisdiction: Which country’s courts have the authority to hear the case? This is often determined by the habitual residence of one of the partners.
- Choice of Law: Which country’s substantive law should be applied to determine the couple's rights and obligations? This is the most complex question, as the answer can dramatically change the outcome.
- Recognition and Enforcement: If a court in one country makes a judgment about property or maintenance, will the courts in another country recognise and enforce that judgment?
APPROACHES TO RECOGNITION IN PRIVATE INTERNATIONAL LAW
Countries do not have a single, agreed method for dealing with foreign de facto cohabitation. The approach taken by a court often depends on its own domestic laws and public policy. Three main approaches can be identified.
1. Characterisation of the Legal Issue Before applying any choice of law rule, a court must first 'characterise' or classify the legal question. The issue could be classified as:
- A matter of personal status (like marriage or divorce).
- A matter of contract (if the couple made an agreement).
- A matter of property law.
- A matter of succession law (on death).
The characterisation is very important because each category has its own choice of law rule (Cheshire, North & Fawcett, 2017). For example, in England, issues of rights in land are governed by the law of the country where the land is located (the lex situs). In contrast, issues of succession to movable property are often governed by the law of the deceased's domicile.
2. Recognition Based on the Connecting Factor Some legal systems may give legal effect to a cohabitation relationship based on a specific connecting factor. The most common connecting factor is the law of the country where the relationship was primarily based (the law of the couple's common habitual residence). This approach respects the legal context in which the couple lived their life together. However, it is not universally applied.
3. Non-Recognition Based on Public Policy A court may refuse to recognise or enforce rights arising from a foreign cohabitation if doing so would be fundamentally contrary to its own public policy. For instance, if a country’s law only grants property rights to married couples, its courts might refuse to apply a foreign law that grants similar rights to unmarried cohabitants. This public policy exception acts as a safety valve, but it also creates uncertainty for international couples (Briggs, 2019).
SPECIFIC LEGAL ISSUES IN CROSS-BORDER DISPUTES
In cross-border disputes involving de facto cohabitants, courts regularly deal with claims concerning property, maintenance, and inheritance.
1. Property Rights When an unmarried couple separates, dividing property can be difficult. If the couple has lived in different countries or owns property in different countries, the question arises as to which law governs the division.
- For immovable property (like a house), the governing law is almost always the lex situs.
- For movable property (like bank accounts or shares), the choice of law rule is less clear. Courts might apply the law of the couple's last common habitual residence.
2. Maintenance Claims Whether one former partner can claim financial support (maintenance) from the other depends entirely on the applicable law. In the European Union, the Maintenance Regulation (Regulation (EC) No 4/2009) provides rules on jurisdiction and choice of law. The general rule under the Regulation is that the law of the habitual residence of the creditor (the person claiming maintenance) applies. However, the Regulation only applies if the domestic law of that state provides for maintenance in the first place. This means a partner moving from a country that allows cohabitant maintenance to one that does not could lose their rights.
3. Succession Rights When one partner dies without a will, the question is whether the surviving partner can inherit. This is typically governed by the succession law of the deceased.
- For movable property, this is usually the law of the deceased's domicile at death.
- For immovable property, it is the lex situs.
Many legal systems do not give automatic inheritance rights to unmarried partners. Therefore, a surviving partner’s claim may fail if the applicable law does not recognise them as a legal heir.
THE POSITION IN ENGLAND AND WALES
The law of England and Wales provides a clear example of the difficulties.
1. Domestic Law Position English law does not recognise the concept of a "common-law marriage." Cohabitants are not given the same legal rights as married couples or civil partners upon separation or death (Law Commission, 2007). There is no special legal status of 'cohabitant' that automatically creates rights. Instead, cohabitants must rely on general legal principles:
- Property Law: To claim a share in property, a cohabitant must use complex trust law principles, showing there was a common intention to share the property. The key cases are Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53.
- Inheritance: An unmarried partner has no automatic right to inherit if their partner dies without a will. They can, however, make a claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975, provided they were being maintained by the deceased or had lived with them for at least two years.
2. Private International Law Position When an English court hears a dispute involving a foreign cohabitation, it will not simply recognise the foreign relationship status. Instead, it will:
- Characterise the claim (e.g., as a property claim or a succession claim).
- Apply the English choice of law rule for that characterisation.
For example, if the dispute is about a house in London, the court will apply English domestic property law (trusts law), regardless of where the couple lived or what rights they had under a foreign law. The foreign law might be relevant to establishing the facts (e.g., to understand the couple's intentions), but it is English law that determines the outcome. This demonstrates that moving to a different jurisdiction can fundamentally alter a couple's legal rights.
CONCLUSION
De facto cohabitation creates significant and unresolved problems in the field of private international law. The lack of an internationally agreed legal status for cohabitants means that their rights can change dramatically when they cross borders. The outcome of a dispute over property or maintenance often depends on which country's court hears the case and which law it chooses to apply.
Courts use tools like characterisation and public policy to handle these cases, but these tools do not provide certainty. Different approaches to recognition, combined with the wide variation in domestic laws, result in a legal framework that is fragmented and unpredictable for the growing number of international couples who live together without marrying. This area of law shows a clear tension between changing social norms and the traditional, formal structures of family law.
References
Barlow, A. and Smithson, J. (2010) Legal assumptions, social realities and hidden choices: the influence of legal-professional culture in the outcome of disputes between cohabitants. Child and Family Law Quarterly, 22(2), pp. 169-188.
Briggs, A. (2019) The Conflict of Laws. 4th edn. Oxford: Oxford University Press.
Cheshire, North & Fawcett (2017) Private International Law. 15th edn. Oxford: Oxford University Press.
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Official Journal of the European Union, L 7/1.
Inheritance (Provision for Family and Dependants) Act 1975.
Jones v Kernott [2011] UKSC 53.
Law Commission (2007) Cohabitation: The Financial Consequences of Relationship Breakdown. Law Com No 307.
Stack v Dowden [2007] UKHL 17.
