David Simmons considers the effects of the introduction of same-sex marriage and some recent caselaw on cohabitation.
Marriage between members of the same sex (‘same-sex marriage’) was legalised in England and Wales with effect from 29 March 2014.1 The Marriage (Same Sex Couples) Act 2013
Similar legislation has been enacted in Scotland and is expected to take effect from some time in the autumn of 2014.2 The Marriage and Civil Partnership (Scotland) Act 2014
Until then, same-sex couples married in England and Wales are treated as civil partners in Scotland.3 The Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014 (article 5)
Changes to means-tested benefits
The definition of a ‘couple’ for income support, income-based jobseeker’s allowance, income-related employment and support allowance, pension credit, housing benefit, universal credit, social fund and council tax support in England and Wales changed from 13 March 2014 to:
•two people who are married to, or civil partners of, each other and are members of the same household; or
two people who are not married to, or civil partners of, each other but are living together as a married couple.4 Ibid; The Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014
Changes to non-means-tested benefits The same definition applies to non means-tested benefits in England and Wales, for the purposes of entitlement to bereavement and widow’s benefits (including the rules precluding payment to cohabiting claimants) and state retirement pension (entitlement to a category B pension on the basis of marriage to a same sex partner).5 The Marriage (Same Sex Couples) Act 2013
The above changes will not apply in Scotland until same sex marriage takes effect (see above). Until then, the current definitions of couple apply – ie, a husband and wife or civil partners living in the same household, or two people living together on the same basis as husband and wife (this test also applies to same sex partners).6 See, for example, reg 2(1) Income Support (General) Regulations 1987 – definition of couple prior to the above amendments.
HMRC has decided not to change the current definition of a couple for tax credits purposes, which therefore remains:
•a married man and woman or civil partners who are not separated under a court order or in circumstances likely to be permanent;
•an unmarried man or woman living together as husband and wife;
two people of the same sex who are not civil partners but are living together as if they were civil partners.7 s3(5A) Tax Credits Act 2002
Same sex married couples are presumably categorised under the last bullet point. This could cause difficulties as they are subject to different rules to opposite-sex married couples (the prescribed separation provisions would not apply and technically, same-sex married couples would also need to show, rather oddly, that they are living together as if they were civil partners, rather than a married couple). Whether this will cause any difficulties in practical terms remains to be seen, as HMRC is likely to assess the status of married and unmarried couples of either sex on the same basis (but see below for further consideration).
The meaning of ‘couple’ (particularly in the case of unmarried partners) has been the subject of decades of social security caselaw. One of the ‘landmark’ decisions was Crake & Butterworth v SBC
 1 All ER 498 which approved a list of criteria produced by the Supplementary Benefits Commission back in 1979 used to determine whether unmarried partners are ‘living together as husband and wife’. These were whether the partners were members of the same household; the stability of their relationship; financial support arrangements; presence of a sexual relationship; children; and public acknowledgment of the relationship. These ‘signposts’ are still regularly referred to in appeals and have been the subject of further scrutiny and interpretation in subsequent caselaw (see pp206–208 of CPAG’s Welfare Benefits and Tax Credits Handbook
Recent caselaw has focussed on updating the concepts of cohabitation and marriage to bring them more in line with modern realities.
PP v Basildon District Council (HB)8  UKUT 505 (AAC) 12 October 2013
In this case (see Bulletin 238, p14
), Judge Jacobs held that the guidelines approved in Crake & Butterworth
remain relevant, but are often difficult to apply in practice being individually and collectively ‘nearly always equivocal
’, with ‘little, however apparently damning, for which an explanation cannot be provided by a wily claimant, or for that matter an honest one
The judge highlighted three particular problems.
•The evidence is often limited, and the parties may have an interest in concealing their true relationship.
•People share accommodation under a wide variety of arrangements which may owe as much to convenience or chance as the nature of the relationship between the parties.
•The law requires a comparison with how a husband and wife would arrange their affairs, but such arrangements could vary widely. ‘Some marriages may be very stable, others volatile with parties splitting up and coming back together. The nature of a couple’s work may mean they are separated for long periods; some even maintain their own homes. Some have large families; others are childless...There is an infinite variety of financial arrangements that are possible. Even public acknowledgment of their union may be limited with the couple maintaining their own separate identities for professional or personal reasons.’
Judge Jacobs stresses the importance of the emotional aspects of a marriage, including a stable, loving and caring relationship, drawing on caselaw in other areas of law (see, for example, Fitzpatrick v Sterling HA  Ch304 and  1AC 27). The Crake & Butterworth guidelines remained relevant (but were not exhaustive) for what they show in themselves, and about the nature and degree of the emotional attachment between the parties, which was nearly always a matter for inference, rather than direct evidence.
‘Ultimately, every “living together” case depends on an analysis of the evidence in the particular case. It is time that that analysis recognised the importance of the emotional aspect of a marriage. This does not replace the other aspects of marriage; rather it adds a perspective and depth to the analysis.’
JP v SSWP (IS)9  UKUT 17 (AAC) 17 January 2014
This case (see Bulletin 239, p13
), which held that two women who lived in a jointly owned property were not living together as a couple, accepted the analysis in PP v Basildon District Council (HB)
, but added:
‘However, the very fact that a party denies that there is an emotional relationship in itself severely undermines the notion that there is such a relationship and in my opinion it would require very strong evidence indeed (and more than just disbelieving the claimant or witness) to displace that denial.’
The judge then went on, with reference to a family case Baynes v Hedger and Others  EWCH 1587 (Ch), to also stress the importance of the public acknowledgment of a committed, loving relationship, holding that:
‘an unacknowledged relationship cannot be the equivalent of marriage or a registered civil partnership which are, in their very nature, public acknowledgment of an emotional relationship....It is for those alleging that two people are a couple...to prove that there is a publicly acknowledged committed emotional loving relationship.’
He also questioned whether some of the traditional signposts of marriage were of less relevance in the case of same sex couples – eg, there are less likely to be children and non-consummation may be a less important issue. This raises the issue of whether the ‘cohabitation’ test will involve consideration of different factors now that same-sex marriage has been legalised.
DG v HMRC (TC)10  UKUT 631 (AAC) 13 December 2013
This case (see p15 of this Bulletin
) highlighted the difference between the definitions of married couple for tax credits and other social security benefits. In particular, the former is based on non-separation, whereas the latter is based on the existence of a household. The judge accepted that living in the same household could be a good indicator as to whether a married couple’s separation was likely to be permanent, but this was not always the case, and neither was living in a separate household a necessary precondition to establishing that a separation was likely to be permanent. The judge disagreed with HMRC v TD (TC)
 UKUT 230 (AAC) to the extent that it suggested that whether a married couple shared a household was determinative of whether they were separated. The test of separation was primarily concerned with the relationship between the parties, rather than their living arrangements and a married couple could be separated while living in the same household (whether or not they had a court order), or not separated while living in different households.
The illustrations cited by the judge in his analysis refer to modern trends in married life.
‘For example, “living apart together” is a well-recognised modern social phenomenon, in which a married (or indeed unmarried) couple share an intimate relationship but live at separate addresses...They are not “separated’ in the sense envisaged by the statute. So where a married couple operate out of two households, it does not automatically follow that either of them can claim tax credits as a single person. Conversely, and logically, where a married couple operate as a single household, it does not automatically follow that one of them cannot claim tax credits as a single person. The question is not whether they share a common household but rather whether they are separated within the terms of the legislation’.
It is unclear how this analysis affects the position of partners who are not married or civil partners. The definition of ‘couple’ which applies to them also does not refer to a ‘household’ or ‘separation’, but does require them to be ‘living together as husband and wife’ or ‘as if they were civil partners’. This presumably means that they would not count as a couple in the first illustration above (maintaining an intimate relationship while living at separate addresses), unless they could argue that ‘living together’ on the same basis as a married couple or civil partners is a wider concept than physically living together. They should, however, be able to argue that they do not count as a couple while living separately under the same roof (see TD), but may also be able to argue that this could apply even if they are still sharing a household, but their relationship has broken down (which was the situation in DG, albeit in relation to a married couple). HMRC’s decision not to amend the definition of couple to take account of same sex marriage means that these considerations may also apply to same sex married couples, who must technically establish that they are living together as if they are civil partners.
It remains to be seen how changes to the definition of couple for social security purposes consequent on the introduction of same-sex marriage will affect decision-making and caselaw. In particular, the fact that the ‘cohabitation test’ for couples who are not married nor civil partners now requires a comparison with the living arrangements of married couples, could result in different ‘signposts’ being taken into account, to reflect the modern realities of married life. In the meantime, caselaw is continuing to reflect those realities by highlighting the myriad living arrangements which can apply to married life, and supplementing the traditional Crake & Butterworth ‘signposts’ of cohabitation by, for example, stressing the significance of the emotional aspects and public acknowledgment of a relationship.
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