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THE CONCEPT OF COUPLEDOM IN SUCCESSION LAW

Published online by Cambridge University Press:  17 November 2011

Brian Sloan
Brian Sloan
Affiliation:
Bob Alexander College Lecturer & Fellow in Law, King's College, Cambridge.
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Extract

Historically, English and Irish Law were both distinctly protective of marriage (still understood as an exclusively heterosexual institution)1 as compared to other forms of adult relationship. In the 1950 English case of Gammans v. Ekins, it was famously deemed an “abuse of the English language” to say that an unmarried couple “masquerading” as husband and wife were members of the same family.2 In its Constitution, meanwhile, the Irish state “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”.3 The powerfulness of this “pledge” can be seen from the fact that divorce was not possible in Ireland until a 1995 referendum resulted in a constitutional amendment.4

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Articles
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The Cambridge Law Journal , Volume 70 , Issue 3 , November 2011 , pp. 623 - 648
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 Wilkinson v. Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 F.L.R. 295; Zappone and Gilligan v. Revenue Commissioners [2006] IEHC 404, [2008] 2 I.R. 417 (the outcome of an appeal to the Irish Supreme Court is awaited). The Irish Coalition Government has pledged to set up a “Constitutional Convention” to consider same-sex marriage inter alia: Coalition Government of Ireland, “Government for National Recovery 2011–16” (Dublin 2011), p. 18.

2 [1950] 2 K.B. 328, 331 per Asquith L.J.

3 Constitution of Ireland, Article 41.3.1.

4 Fifteenth Amendment of the Constitution Act 1995. See now Constitution of Ireland, Article 41.3.2.

5 Law Reform (Succession) Act 1995, amending the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”).

6 Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”), s. 194.

7 The 2010 Act does not ensure either formal or substantive equality with heterosexual marriage for same-sex civil partners. For example, the Law Reform Commission has said that the Act “does not address the relationship between same-sex couples and their children”: Law Reform Commission of Ireland, “Legal Aspects of Family Relationships” (L.R.C. 101, Dublin 2010), para. [3.01]. The Coalition Government has promised to amend the 2010 Act in order to “address any anomalies or omissions, including those relating to children”: Coalition Government of Ireland, “Government for National Recovery 2011–16” (Dublin 2011), p. 56.

8 See, generally, 2010 Act, Parts 1–14. Most of the Act commenced on 1 January 2011: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Commencement) Order 2010, SI 648 of 2010.

9 Civil Partnership Act 2004.

10 The scheme also excludes couples in a same-sex civil partnership with each other: 2010 Act, section 172(1).

11 2010 Act, Part 15.

12 Law Commission of England & Wales, “Cohabitation: The Financial Consequences of Relationship Breakdown” (Law Com. No. 307, London 2007). See also the ill-fated Cohabitation Bill 2009, introduced by Lord Lester of Herne Hill.

13 See, e.g., S. Harris-Short and J. Miles, Family Law: Text, Cases and Materials, 2nd edn. (Oxford 2011), ch. 3.

14 For a discussion of the extent to which a “conjugal” relationship and a “sexual” relationship are synonymous, see B. Cossman and Ryder, B., “What is Marriage-Like Like? The Irrelevance of Conjugality” (2001) 18 Canadian Journal of Family Law 269Google Scholar.

15 See, e.g., J.C. Brady, Succession Law in Ireland, 2nd edn. (Dublin 1995), paras. (7-01)–(7–04).

16 Succession Act 1965, s. 111. This “legal right” relates to half of the estate where there are no children and one third of it where there are children, and the spouse can elect whether to take the “legal right” or any provision made for him in the will: section 115.

17 Succession Act 1965, s. 118.

18 Family Law (Divorce) Act 1996, s. 18.

19 Mee, J., “Succession and the Civil Partnership Bill 2009” (2009) 14 Conveyancing and Property Law Journal 86, 86–88Google Scholar.

20 See, generally, 2010 Act, Part 8, amending the Succession Act 1965.

21 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants” (L.R.C. 82, Dublin 2006).

22 The 2006 Census revealed a total of 121,800 family units consisting of cohabiting couples, as compared to 77,600 in 2002: Central Statistics Office, “Census 2006: Principal Demographic Results” (Dublin 2007), p. 21.

23 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [1.06].

24 Ibid., para. [1.14].

25 2010 Act, section 194(3).

26 2010 Act, section 194(3).

27 Constitution of Ireland, Article 41.3.2.iii.

28 2010 Act, section 194(3).

29 1975 Act, section 1(1).

30 Department of Justice, Equality & Law Reform (Ireland), “Civil Partnership Bill 2009: Explanatory Memorandum” (Dublin 2009), p. 26. Cf. Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006” (Dublin 2006), cl. 11(2), which refers specifically to “adequate provision or no [provision] for the qualified cohabitant … whether by … will or otherwise”.

31 2010 Act, section 194(4)(b).

32 2010 Act, section 194(4).

33 2010 Act, section 194(4)(a).

34 2010 Act, section 194(4)(b). Variations of such orders are also considered.

35 2010 Act, section 194(4)(c).

36 2010 Act, section 194(4)(d), cross-referring to section 173(3). For a list of these factors, see note 50.

37 2010 Act, section 194(5)(a).

38 Department of Justice, Equality & Law Reform (Ireland), “Civil Partnership Bill 2009: Explanatory Memorandum”, p. 1.

39 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [5.09]. This argument can justify a wider range of eligible applicants for testamentary as against inter vivos claims: see section III.C.2 below.

40 2010 Act, section 172(2)(c).

41 2010 Act, section 194(7).

42 2010 Act, section 194(10).

43 2010 Act, section 194(11)(b)–(c). See J. Mee, “Succession and the Civil Partnership Bill 2009”, pp. 91–92 for criticism of the breadth of these provisions.

44 2010 Act, section 175. Such an order can comprise periodical and lump sum payments. The sections concerning “property adjustment orders” (section 174) and “pension adjustment orders” (section 187) are less explicit in contemplating an application by a surviving cohabitant, although in any case the court is obliged to consider whether the needs of the applicant can practicably be met under sections 175 or 187 before making an order under section 174 (section 174(2)).

45 2010 Act, section 175(1).

46 2010 Act, section 173(7).

47 1975 Act, section 15.

48 See, e.g., Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [1.25].

49 2010 Act, section 173(2).

50 These are the current and future “financial circumstances, needs and obligations” of the parties, the “rights and entitlements” of any current or former spouse or civil partner and of any dependent child or child from a previous relationship of the parties (given that that the court is not allowed to make an order that would affect “any right” of any person to whom the respondent is or was married: (2010 Act, section 173(5)), the relationship's duration, the basis on which it was entered and the degree of commitment involved in it, the past or likely future contribution made by each of the cohabitants to their collective or the other's welfare, including to the other's earning capacity, income or resources, their contributions “in looking after the home”, the effect on their earning capacity of the division of responsibilities during their relationship, any disability suffered by the applicant, and the conduct of both parties if it is such that the court considers it “unjust” to disregard it.

51 2010 Act, section 202(1). The agreement must be in writing signed by both parties (section 202(2)(b)) and comply with the general law of contract (section 202(2)(c) although both parties must have received legal advice either independently or together (if they have waived their right to independent advice in writing): section 202(2)(a)).

52 2010 Act, section 202(3). The extent of the validity of equivalent contracts barring applications under the 1975 Act is unclear. Lowe and Douglas, for example, presume that (at least) a spouse cannot contract out of his right to make such an application except via a consent order made by a court: N. Lowe and G. Douglas, Bromley's Family Law, 10th edn. (Oxford 2007), p. 1124.

53 2010 Act, section 202(4).

54 See, e.g., Re Coventry (deceased) [1980] Ch. 461, 474 per Oliver J.

55 For a detailed discussion of the original Inheritance (Family Provision) Act 1938, see S.M. Cretney, Family Law in the Twentieth Century: A History (Oxford 2003), pp. 485–498.

56 The relevant provision is now contained in the 1975 Act: section 1(1)(a), which, in its amended form, also includes civil partners (who must be of the same sex). Former spouses and civil partners who have not entered a subsequent marriage or civil partnership may also be eligible for provision (section 1(1)(b)), but it is rarely made: see, e.g., Cameron v. Treasury Solicitor [1996] 2 F.L.R. 716, 723 per Thorpe L.J.

57 No dependency or age-based requirements are now imposed as regards the eligibility of the deceased's legal children (1975 Act, section 1(1)(c)), and those whom he treated as a child of the family in relation to a marriage or civil partnership are also able to make an application (section 1(1)(d)). Nevertheless, it has been recognised that “[a] person who is physically capable of earning his own living faces a difficult task in getting provision made for him …” (Re Dennis (Deceased) [1981] 2 All E.R. 140, 145 per Browne-Wilkinson J.). For a comparative analysis of claims by adult children who provide care for their parents in England and Wales and Ireland, see B. Sloan, “Testamentary Freedom and Caring Adult Offspring In England & Wales and Ireland” in K. Boele-Woelki, J. Miles and J.M. Scherpe (eds.), The Future of Family Property in Europe: Proceedings of the 4th Conference of the Commission on European Family Law (Cambridge 2011).

58 The intestacy rules are contained in the Administration of Estates Act 1925, s. 46. The Irish equivalent of family provision for spouses and children applies only where the deceased died testate: Succession Act 1965, s. 109.

59 1975 Act, section 1(1).

60 1975 Act, section 1(1)(e).

61 1975 Act, section 1(3). The subsection provides that the applicant “shall be treated” as being maintained where its terms apply, and it was interpreted as imposing a condition that is both necessary and sufficient in Re Beaumont (Deceased) [1980] Ch. 444.

62 Law Commission of England & Wales, “Distribution on Intestacy” (Law Com. No. 187, London 1989).

63 [2002] EWHC 3230 (Ch), [2004] 2 F.L.R. 989.

64 1975 Act, section 1(2)(a-aa).

65 1975 Act, section 1(2)(b).

66 Negus v. Bahouse [2007] EWHC 2628 (Ch), [2008] 1 F.L.R. 381; cf. Baker v. Baker [2008] EWHC 937 (Ch); [2008] 2 F.L.R. 767, at [66] per Paul Girolami QC.

67 Law Commission of England & Wales, “Intestacy and Family Provision Claims on Death: A Consultation Paper” (Consultation Paper 191, London 2009), para. [4.134].

68 1975 Act, section 3(1).

69 1975 Act, section 3(2)–(4).

70 The same is true in Ireland: 2010 Act, Part 8. Cf. Law Commission of England & Wales, “Intestacy and Family Provision Claims on Death”, ch. 4, which provisionally recommends a sliding scale of entitlement for cohabitants in England and Wales on the intestacy of their partners based on the length of the relationship concerned.

71 1975 Act, section 3(2A)(a).

72 1975 Act, section 3(2A)(b).

73 1975 Act, section 2.

74 2010 Act, section 172(1).

75 2010 Act, section 172(1).

76 The prohibited degrees of relationship are defined (with reference to other enactments) in section 172(4) of the 2010 Act.

77 2010 Act, section 172(2).

78 See, e.g., Family Law Act 1975, s. 4AA(2) (Commonwealth of Australia); Property (Relationships) Act 1976, s. 4 (NZ).

79 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [2.07], n. 12, citing Property (Relationships) Act 1984, s. 4 (NSW) (which applies a near-identical definition of a de facto relationship to that used for the purposes of a family provision claim; see now Interpretation Act 1987, s. 21C (NSW), referenced in a note in Succession Act 2006, s. 57 (NSW)).

80 2010 Act, section 172(2)(a).

81 2010 Act, section 172(2)(b).

82 2010 Act, section 172(2)(c).

83 2010 Act, section 172(2)(d).

84 2010 Act, section 172(2)(e).

85 2010 Act, section 172(2)(f).

86 2010 Act, section 172(2)(g).

87 Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006”, cl. 3(3).

88 Property (Relationships) Act 1984, s. 4(3) (NSW); see also Interpretation Act 1987, s. 21C (NSW).

89 Property (Relationships) Act 1976, s. 2D(3) (NZ).

90 2010 Act, section 172(5). According to section 206, an application for one of the orders mentioned in section 173 cannot be made unless the relationship ended (by death or otherwise) after the legislation commenced (in January 2011), but the length of the relationship is measured to include time before commencement. Section 206 does not expressly mention applications under section 194 for provision out of an estate, but section 173(7) does so in passing.

91 2010 Act, section 172(5)(a).

92 2010 Act, section 172(5)(b).

93 2010 Act, section 171.

94 Civil Partnership Bill 2009 (as introduced), cl. 170(5)(b).

95 Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006”, cl. 3(4)(a).

96 Select Committee on Justice, Equality, Defence and Women's Rights, “Civil Partnership Bill 2009: Committee Stage (Resumed)”, 27 May 2010 <http://debates.oireachtas.ie/JUS/2010/05/27/00003.asp>.

97 2010 Act, section 172(6).

98 Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006”, cl. 3.

99 Cf. Law Reform Commission of Ireland, “Consultation Paper on the Rights and Duties of Cohabitees” (L.R.C. C.P. 32, Dublin 2004), para. [1.24].

100 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [2.22].

101 Constitution of Ireland, Article 41.3.2. Civil partners are able to gain a decree of dissolution in less restricted circumstances: 2010 Act, section 110.

102 Constitution of Ireland, Article 41.3.1.

103 Parliamentary Debates, Dáil Éirann, Vol. 697, No. 1 (Thursday 3 December 2009), p. 109 (Deputy Dermot Ahern).

104 J. Walsh and F. Ryan, The Rights of De Facto Couples (Dublin 2006), p. 82.

105 See, by analogy, M v. Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 A.C. 91, at [114] per Baroness Hale.

106 Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006”, cl. 11(1).

107 2010 Act, section 194(2)(a).

108 2010 Act, section 194(2)(b).

109 2010 Act, section 194(2)(c).

110 See Mee, “Succession and the Civil Partnership Bill 2009”, pp. 89–90 for criticism of the original Bill's apparent failure adequately to distinguish between claims where the relationship ended before death and where it subsisted at the point of death.

111 2010 Act, section 194(5)(b). The same bar applies to a foreign marriage or registered partnership recognised under section 5 of the Act.

112 2010 Act, section 194(5)(a).

113 1975 Act, section 1(1A).

114 1975 Act, section 1(1B).

115 The deceased putative cohabitant in Churchill v. Roach [2002] EWHC 3230 (Ch) had a subsisting marriage at the time of his death as a result of his estranged wife's opposition to divorce. This fact had no effect on the claimant putative cohabitant's eligibility under the 1975 Act (although she was deemed ineligible for other reasons).

116 Law Commission of England & Wales, “Intestacy and Family Provision Claims on Death”, para. [4.112].

117 Ibid., at para. [4.123].

118 See, e.g., Re Watson (Deceased) [1999] 1 F.L.R. 878, 883 per Neuberger J.

119 See, e.g., Gully v. Dix [2004] EWCA Civ 139, [2004] 1 W.L.R. 1399 at [16] per Ward L.J.

120 [2002] EWHC 3230 (Ch), [2004] 2 F.L.R. 989, 1004. This passage was cited with apparent approval in Baynes v. Hedger [2008] EWHC 1587 (Ch), [2008] 2 F.L.R. 1805 at [117] per Lewison J. and Lindop v. Agus [2009] EWHC 1795 (Ch), [2010] 1 F.L.R. 631 at [6] per HHJ Behrens.

121 See, e.g., Lindop v. Agus [2009] EWHC 1795 (Ch), at [37] per HHJ Behrens.

122 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, paras. [2.04]–[2.05].

123 See, e.g., Law Commission of England & Wales, “Intestacy and Family Provision Claims on Death”, para. [4.49].

124 Ibid., para. [4.55].

125 Law Reform Commission of Ireland, “Draft Cohabitants Bill 2006”, cl. 3(2)(c).

126 2010 Act, section 172(2)(g).

127 See, e.g., Parliamentary Debates, Dáil Éirann, Vol. 697, No. 1 (Thursday 3 December 2009), p. 116 (Deputy Charles Flannagan).

128 See, e.g., Parliamentary Debates, Dáil Éirann, Vol. 699, No. 3 (Thursday 21 January 2010), pp. 892–893 (Deputy Alan Shatter).

129 Parliamentary Debates, Dáil Éirann, vol. 697, No. 1 (Thursday 3 December 2009), 116 (Deputy Charles Flannagan).

130 See L. Glennon, “Displacing the Conjugal Family in Legal Policy – A Progressive Move?” (2005) 17 Child & Family Law Quarterly 141 for an account.

131 See section III.C.2.

132 Succession Act 1965, Part VI.

133 Capital Acquisitions Tax Consolidation Act 2003, s. 86. Cf. Burden v. United Kingdom (Application no. 13378/05) [2008] 2 F.L.R. 787 (Grand Chamber of the European Court of Human Rights), concerning the lack of similar provision in England & Wales.

134 Marriage Act 1949, sch. 1; Civil Partnership Act 2004, sch. 1.

135 1975 Act, section 1(1A), section 1(1B).

136 [1999] 1 F.L.R. 878 (Ch).

137 [1999] 1 F.L.R. 878 (Ch), 883.

138 [2008] EWHC 1587 (Ch). The appeal ([2009] EWCA Civ 374, [2009] 2 F.L.R. 767) did not address this aspect of the case.

139 [2008] EWHC 1587 (Ch), at [150]. For criticism, see S. Choudhry and J. Herring, European Human Rights and Family Law (Oxford 2010), p. 424.

140 [2008] EWHC 1587 (Ch), at [35] per Lewison J.

141 Cf. Sexual Offences Act 1967.

142 [1999] 1 F.L.R. 878, 883.

143 New South Wales Law Reform Commission, “Relationships” (Report No. 113, Sydney 2006), p. 49.

144 See, e.g., P. Riddell, “Sizeable Minority remains Hostile to Same-Sex Relationships”, The Times, 27 June 2009.

145 See Section III.C.1.

146 1975 Act, section 1(1)(e), discussed in the text to notes 60–61.

147 R. Kerridge, Parry and Kerridge: The Law of Succession 12th edn. (London 2009), para. [8.79].

148 See, e.g., Re Beaumont (Deceased) [1980] Ch. 444; Re Wilkinson (Deceased) [1978] Fam. 22. For criticism, see J. Dewar, “Cohabitees: Contributions and Consideration” [1982] Family Law 158.

149 [1991] 1 W.L.R 582 (C.A.), 587. See also Jelley v. Iliffe [1981] Fam. 128 (C.A.); Bouette v. Rose [2000] Ch. 662 (C.A.); Lindop v Agus [2009] EWHC 1795 (Ch).

150 Law Commission of England & Wales, “Intestacy and Family Provision Claims on Death”, para. [6.27].

151 See, e.g., Herring, J., “Where are the Carers in Healthcare Law and Ethics?” (2007) 27 Legal Studies 51, 72–73Google Scholar.

152 In Lissimore v. Downing [2003] EWHC B1 (Ch), [2003] 2 F.L.R. 308 Judge Norris QC opined that statements made by one conjugal cohabitant to another, such as one to the effect that “she did not need to worry her pretty little head about money”, were “to be contrasted with statements made to unpaid or underpaid workers or business partners, encouraged to work on because they would be ‘treated right’, and for whom a commensurate reward could be objectively assessed” (at [18]).

153 See, e.g., Jennings v. Rice [2002] EWCA Civ 159, [2003] 1 F.C.R. 501. Such a claim is also possible in Ireland: see, e.g., A v. C [2007] IEHC 120.

154 It should be noted that a “child of the family”, though not related by blood, must in a sense be related via a parent's marriage or civil partnership: 1975 Act, section 1(1)(d).

155 See also, e.g., Adult Interdependent Relationships Act 2002 (Alberta); I. Curry-Sumner, All's Well that Ends Registered? The Substantive and Private International Law Aspects of Non-Marital Registered Relationships in Europe (Antwerp 2005), ch. 3, which provides a (now dated) account of Belgium's statutory cohabitation scheme open to family members.

156 For a summary of the recognition of “domestic relationships” across the various states and territories, see B. Fehlberg and J. Behrens, Australian Family Law: The Contemporary Context (Melbourne 2008), pp. 138–141. However, their account is already out of date: see, e.g., the Relationships Amendment (Caring Relationships) Act 2009 (Victoria). For a comparative study of the position of the “informal carer” in private law, see B. Sloan, Informal Carers and Private Law (Oxford forthcoming 2012).

157 Property (Relationships) Legislation Amendment Act 1999 (NSW).

158 In New South Wales, a non-exhaustive checklist of factors is used to determine whether the applicant and the deceased “have a relationship as a couple living together”. In line with the judicially developed principles in England and the statutory factors in Ireland, these factors include “whether a sexual relationship exists” and “the reputation and public aspects of the relationship”: see now Interpretation Act 1987, s. 21C (NSW). A registration scheme for de facto relationships in New South Wales is provided by the Relationships Register Act 2010 (NSW). The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Commonwealth of Australia) federalises much of the law relating to the property and maintenance affairs of de facto (conjugal) couples. See, generally, H. Baker, “In Practice: New Cohabitation Law in Australia” [2009] Family Law 1201; Kneen v. Crockford [2011] FMCAfam 372, at [9] per Lindsay F.M. The Act does not purport to cover the categories of non-conjugal relationship discussed in this article: see Watts, G., “The De facto Relationships Legislation” (2009) 23 Australian Journal of Family Law 122Google Scholar, 135. Relationships ending by death are also excluded from its scope (Watts, “The De facto Relationships Legislation”, p. 135).

159 Property (Relationships) Act 1984, s. 5(1) (NSW).

160 New South Wales Law Reform Commission, “Relationships”, para. [3.21].

161 Succession Act 2006, s. 3(3) (NSW) (as amended). A claim is precluded, however, if the domestic support or personal care is provided “for fee or reward” or “on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation)”: Succession Act 2006, s. 3(4).

162 The jurisdiction was originally contained in the Family Provision Act 1982 (NSW), but was transferred and amended by the Succession Amendment (Family Provision) Act 2008 (NSW). The Succession Act 2006 governs family provision against the estates of persons who have died since 1 March 2009: Succession Act 2006, sch. 1, cl. 11(2); Smith v. Daniels [2010] NSWSC 604 at [36] per Slattery J.

163 Succession Act 2006, s. 57(1)(f) (NSW).

164 Succession Act 2006, s. 59(1)(b) (NSW).

165 See, e.g., Richardson v Kidd [2002] NSWSC 306. The Law Reform Commission has recommended its removal: New South Wales Law Reform Commission, “Relationships”, para. [3.23].

166 Hayes v. Marquis [2008] NSWCA 10, at [79] per McColl J.A.

167 [2008] NSWCA 10, at [84].

168 Administration and Probate Act 1935, s. 44 (Tasmania); Testator's Family Maintenance Act 1912, s. 3A (Tasmania).

169 Relationships Act 2003, s. 11 (Tasmania). For a general discussion of relationship registration schemes in Australia, see Rundle, O., “An Examination of Relationship Registration Schemes in Australia” (2011) 25 Australian Journal of Family Law 121Google Scholar.

170 Graycar, R. and Millbank, J., “From Functional Family to Spinster Sisters: Australia's Distinctive Path to Relationship Recognition” (2007) 24 Washington University Journal of Law and Policy 121Google Scholar, 149.

171 Ibid., at p. 153.

172 Ibid., at p. 150.

173 See, e.g., Law Commission of England & Wales, “Cohabitation: The Financial Consequences of Relationship Breakdown”, paras. [2.82]–[2.94]; J.M. Scherpe, ‘The Legal Status of Cohabitants –Requirements for Legal Recognition’ in K. Boele-Woelki (ed.), Common Core and Better Law in European Family Law (Antwerp 2005), pp. 283–294.

174 That said, the Burden sisters, who unsuccessfully challenged the exclusivity of the UK's inheritance tax exemption for spouses and civil partners, told the Grand Chamber that they would have become civil partners had the choice been open to them: Burden v. UK (Application no. 13378/05) [2008] 2 F.L.R. 787, at [53].

175 New South Wales Law Reform Commission, “Relationships”, para. [3.7].

176 [2008] NSWSC 467, at [47] per Macready As.J.

177 Working Group on Domestic Partnership, “Options Paper” (Dublin 2006), para. [9.01.5].

178 Aside from those cited elsewhere, see, e.g., Barker, N., “Sex and the Civil Partnership Act: The Future of (Non) Conjugality?” (2006) 14 Feminist Legal Studies 241CrossRefGoogle Scholar; Herring, J., “Sexless Family Law” (2010) 11 Lex Familiae, Revista Portugesa de Direito da Familia 3Google Scholar. Cf. S. Cretney, “Comment – Sex is Important” [2004] Family Law 777 and N. Bala and R.J. Bromwich, “Context and inclusivity in Canada's evolving definition of the family” [2002] International Journal of Law, Policy and the Family 145.

179 S. Wong, “Caring and Sharing: Interdependence as a Basis for Property Redistribution” in A. Bottomley and S. Wong (eds.), Changing Contours of Domestic Life, Family and Law: Caring and Sharing (Oxford 2009), p. 54.

180 R. Deech, “Sisters Sisters – and Other Family Members” [2010] Family Law 375, 377.

181 Choudhry and Herring, European Human Rights and Family Law, p. 426.

182 See, e.g., B. Sloan, “The Benefits of Conjugality and the Burdens of Consanguinity” [2008] C.L.J. 484.

183 M.A. Fineman, The Autonomy Myth: A Theory of Dependency (New York 2004), p. xvii.

184 Ibid., pp. 35–36.

185 Eichner, M., “Dependency and the Liberal Polity: on Martha Fineman's The Autonomy Myth” (2005) 93 California Law Review 1285Google Scholar, 1291.

186 Choudhury and Herring, European Human Rights and Family Law, p. 426.

187 See, e.g., J. Herring, “Where are the Carers in Healthcare Law and Ethics?”, pp. 72–73 on the difficulty of distinguishing the carer and the care recipient.

188 This phrase is taken from Law Commission of Canada, “Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships” (2001). See Glennon, “Displacing the Conjugal Family in Legal Policy – A Progressive Move?”, pp. 152–156 for discussion and criticism of that report.

189 See, e.g., Diduck, A., “Shifting Familiarity” (2005) 58 Current Legal Problems 235CrossRefGoogle Scholar, 238.

190 M.A. Fineman, The Neutered Mother, the Sexual Family and other Twentieth Century Tragedies (New York 1995), p. 143.

191 A lack of consummation renders a marriage voidable at worst: Matrimonial Causes Act 1973, s. 12(a)–(b). Non-consummation is not a ground of nullity for civil partners: Civil Partnership Act 2004, s. 50.

192 G. Douglas et al, “Inheritance and the Family: Public Attitudes” [2010] Family Law 1308 report a focus on those with blood or conjugal ties to the deceased within public views on succession law.

193 See Kerridge, Parry and Kerridge: The Law of Succession, para. [8–31] for discussion. In the Irish Supreme Court case of EB v. SS, for example, Keane J. opined that “the clearly expressed wish of the testatrix in this case to treat all her children equally, although not a decisive factor, is not entirely irrelevant” ([1998] 2 I.L.R.M. 141, at [29]).

194 N. Peart, “De Facto Relationships (or Maybe Not) in New Zealand” [2008] International Family Law 130.

195 [2006] N.Z.F.L.R. 1076.

196 This was said of the couple in Horsfield v Giltrap [2001] NZCA 179, at [7] per Blanchard J.

197 Scragg v Scott [2006] N.Z.F.L.R. 1076, at [37] (judgment of the court), applying the Property (Relationships) Act 1976 (NZ) as amended. The same definition of “de facto partner” is used for the purposes of family provision claims from an estate: Family Protection Act 1955, s. 2(1) (NZ).

198 See, e.g., Ministry of Justice, “Response to Paper on Cohabitation and Relationship Breakdown” (6 March 2008) <http://www.justice.gov.uk/news/announcement060308a.htm>.

199 HC Deb. vol. 265, col 199 (31 October 1995).

200 Cf., e.g., Children Act 1989, sch. 1, using which a court can make provision for the children of such couples.

201 See, e.g., Law Commission of England & Wales, ‘Cohabitation: The Financial Consequences of Relationship Breakdown. A Consultation Paper’ (Consultation Paper 179, London 2006), paras. (4.56)–(4.58).

202 A. Borkowski, Textbook on Succession, 2nd edn. (Oxford 2002), p. 258.

203 N. Peart, “The Direction of the Family Protection Act 1955” [1994] New Zealand Recent Law Review 193, 210.

204 Peart, Cf. N., “New Zealand's Succession Law: Subverting Reasonable Expectations” (2008) 37 Common Law World Review 356CrossRefGoogle Scholar.

205 See, e.g., Probert, R., “Cohabitation in Twentieth Century England and Wales: Law and Policy” (2004) 26 Law & Policy 13CrossRefGoogle Scholar, 28.

206 J. Eekelaar, Family Law and Personal Life (Oxford 2006), p. 48; see also pp. 49–51 on “friendship plus”, where Eekelaar acknowledges that that any compensatory obligation owed between those who share a common life plan should not require a sexual relationship.

207 J. Mee, “A Critique of the Law Reform Commission's Consultation Paper on the Rights and Duties of Cohabitees” [2004] Irish Jurist 74, 80. It is unclear whether he would regard a family provision claim primarily as a right that “accrue[s] on the termination of the relationship between the parties”, for which more restrictive criteria would be appropriate in his view, or a right “of a more facilitative nature”, which he is more content to grant to non-conjugal couples.

208 Property (Relationships) Act, 1984, s. 5(1) (NSW).

209 New South Wales Law Reform Commission, “Relationships”, para. [3.22].

210 See, e.g., Jurd v. Public Trustee [2001] NSWSC 632; Hughes v. Charlton [2008] NSWSC 467; Woodland v. Rodriguez [2004] NSWSC 1167; Richardson v. Kidd [2002] NSWSC 306; Bogan v. Macorig [2004] NSWSC 993.

211 Working Group on Domestic Partnership, “Options Paper” (Dublin 2006), ch. 9. In a reference to the name of the Working Group's Chairperson, the paper is often referred to as the “Colley Report”.

212 Law Reform Commission of Ireland, “Consultation Paper on the Rights and Duties of Cohabitees”, para. [1.07]. See also Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, paras. [1.02)–(1.04]. Mee was not fully convinced by this stance: see Mee, “A Critique of the Law Reform Commission's Consultation Paper on the Rights and Duties of Cohabitees”, pp. 80–82.

213 Law Commission of England & Wales, “Sharing Homes: A Discussion Paper” (Law Com. No. 278, London 2002), p. 85.

214 Law Reform Commission of Ireland, “Report: Rights and Duties of Cohabitants”, para. [1.02].