The Court of Appeal has ruled that a person seeking relief as a qualified cohabitant with dependent children must have lived as a couple with the other person throughout the two years immediately before the relationship ended.
The ruling came in a consultative case stated from the High Court in an appeal by D.C. against a Circuit Court decision in favour of M.W. The Court of Appeal answered the legal questions referred to it. It did not decide whether M.W. met the statutory test, or determine the disputed facts about the couple’s time apart.
M.W. and D.C., who were never married, have two children who were dependent at the time of the High Court hearing. Their relationship dated from 1996. The Circuit Court had found M.W. was a qualified cohabitant under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and made orders in her favour. D.C. appealed to the High Court.
The dispute relevant to the referral concerned February 2010 to February 2011. D.C. said the relationship ended in February 2010, when M.W. left their shared property and stayed first in a women’s refuge and then in rented accommodation until June. M.W. said she lived separately from D.C. for four weeks, from May to June 2010. The parties resumed living at the same residence in June 2010 and continued until February 2011, according to the judgment. The length and significance of the separation had not been finally determined.
The court interpreted section 172(5) of the 2010 Act as requiring one continuous two-year period immediately before the relationship relied on for the claim ended. It rejected the argument that separate periods could be added together to meet the threshold. The judgment said the court deciding the facts must determine whether the applicant was a cohabitant under section 172 throughout that entire period.
However, living as a couple does not necessarily require both people to be physically present in the same home at all times. A court may find they continued to live together as a couple despite living in different places, depending on all the relevant facts.
The Act permits applications only in respect of a cohabitation relationship that ended after 1 January 2011, when the relevant provisions came into force. Earlier time living as a couple may count toward the two-year period, provided the relationship relied on ended after that date.
The Court of Appeal’s answers did not resolve whether M.W. and D.C. were cohabitants throughout the two years before the claimed February 2011 end date. That factual determination remained for the High Court judge.