'Til death do us part

When entering into a marriage it is not often the uppermost thought in a person's mind about whether or not the marriage is a valid one. In some cases, the modern culture shift in British society to more informal 'living together' relationships has completely removed the need to think about formalising the union at all. There is no better example of this cultural shift than the Law Commission proposals that are out for consultation which suggests cohabitants who have been living together for more than five years could be given the same intestate rights as married couples.

In the field of social security law, the issue about whether or not a claimant is single or part of a couple, whether married or not, is crucial to benefit entitlement as it affects not only eligibility but also the amount of benefit paid. It is an area of considerable argument before First-tier Tribunals on appeal from a decision by the Department for Work and Pensions (DWP) on the findings made about private relationships and the effect on benefit.

The issue of entitlement to social security benefits in certain circumstances '“ particularly in respect of bereavement benefits and state retirement pensions '“ still rests on establishing a valid marriage (or registered civil partnership). In England and Wales even a long-term partnership is insufficient to meet the required formal legal requirements and there is no presumption of marriage.

This is in marked contrast to other areas of the law where the need for such formality has disappeared and to other areas of social security law itself where the issue is usually a factual rather than a legal one.

'Admirable signposts'

For example, the provisions for compensation under the Fatal Accidents Act 1976 specifically takes account of partners who had been living together as husband and wife for two years under the same roof. Such a partner qualifies as a dependent for whose benefit the action under this Act is being taken. In Kotke v Saffarini [2005] EWCA Civ 221 the Court of Appeal applied a broad test, considering such matters as the sexual and financial relationship of the parties, stability, children and public acknowledgement. These are the very familiar 'admirable signposts' set out in the judgment made in the days of the Supplementary Benefits Commission in Crake v SBC; Butterworth v SBC [1982] 1 All ER 498).

All those versed in social security law are aware that these are considerations that apply when determining whether a couple live together as husband and wife.

However, where a couple are husband and wife, the only issue is whether or not they are living in the same household. This can, in itself, be a difficult issue to assess.

These 'signposts' do not help a claimant in those situations where the law requires a couple to be husband and wife to be entitled to benefit.

Determining whether or not a couple are living together as husband and wife is a regular feature of First-tier Tribunals' hearing appeals. A finding that this is the position often leads to a further decision that there has been recoverable overpaid benefit. It is one of the areas of decision making in the social security system that is fraught with emotion and is still burdened by the history of operation of the old 'cohabitation rule'.

It is usually the case that submissions on behalf of the DWP deal with the circumstances surrounding each of the signposts in turn. Such cases fall into one of two broad categories '“ do the arrangements between the couple actually amount to living together or is the issue that of the credibility of the evidence? While the signposts are useful in the former category they are unlikely to be of much help in cases where the tribunal is in effect deciding whether or not the position is one of deliberate fraud.

A modern variation on the living together as husband and wife theme is the 'live-out partner' where there is evidence of a stable relationship and some financial commitment, and who may be acknowledged as a couple but do not in fact live together. In such cases, the question is 'whether in the opinion of a reasonable person... it could be said that the two people were living together as husband and wife but, when considering that question, one should not ignore the multifarious nature of marital relationships' (Re: Estate of John Watson (Deceased) (1999) 1 FLR 878 '“ a case decided in the Chancery Division under the Inheritance (Provision for Family and Dependants) Act 1975).

From 5 December 2005 under the Civil Partnership Act 2004, same-sex couples have been able to register their civil partnership and, thereafter, such registration means that similar consequences pertain in respect of eligibility for social security benefits as for marriage. It follows that it is possible for couples of the same sex to be found to be living together as civil partners and for the 'admirable signposts' to be considered (with suitable modifications) when deciding on living together in these circumstances.

Cultural differences

For social security purposes, the decision to be made when marriage is in issue is usually in relation to proving that a marriage has taken place and/or the validity of the marriage. In both of these instances, the difficulties are most acute where account has to be taken of a different culture. It is, for example, contrary to English law to recognise a talaq divorce in England as it does not meet the provisions of section 44 of the Family Law Act 1986 which requires proceedings for divorce to have been instituted in a court of law. There are particular evidential problems where there are issues of fact that are dependent on proof of events in a foreign country where the culture and system is not based on the Western norms that the legal system in England and Wales takes for granted.

Marriages solemnised after 31 July 1971 need to comply with the provisions of the Marriage Act 1949 and 1970 in order to be valid. These Acts set out various formalities that need to be observed. The terms of section 11 of the Matrimonial Causes Act 1973 are that where a second or further marriage has been entered into outside of England and Wales, and where one of the parties is domiciled in England and Wales at the time of the further marriage, that further marriage is void. 'Domicile' is a legal term of art and it needs to be carefully scrutinised in relation to the circumstances where the issue arises.

The case studies in the box below illustrate some of the problems in this area of the law and the not uncommon overlap with issues raised by a different culture.

Judgments in these circumstances are often difficult when mindful of the cultural differences prevailing. The judgment by Commissioner Jacobs (as he then was) in CP/4062/2004 is instructive when considering the evidence in these types of cases. He raises the problem of what he describes as lack of DWP coordination in making the initial assessments and expresses concerns about the quality of the questioning. There is a long section in the judgment relating to the assessment of evidence involving claims from widows living in Pakistan, Bangladesh, Yemen, India and Jamaica.

The particular areas of concern raised are the lack of contemporaneous documentation and the fact that evidence is often given years after the event. It indicates that where the case, wholly or in part, depends on the claimant's own words it is appropriate to treat as more reliable evidence given as a result of direct questioning. It also indicates that it is a mistake to assume that British records are always comprehensive.

It was pointed out by a decision of the Upper Tribunal in CP/891/2008 that an inevitable feature of such cases '“ inevitable because there is no reliable system of registration of life events such as birth, marriage or death '“ is the paucity of contemporaneous documentary evidence. This does a disservice to all claimants including the genuine ones because its lack hampers their case. A further problem for a judge in these matters is determining what weight to give to the oral evidence. An (almost certainly) illiterate woman from a different culture, who does not necessarily operate on a Western time frame where recording events by given dates is axiomatic, is likely to have difficulties establishing matters to the required standard of proof as judged in an English judicial setting.

In adjudicating on these matters, it is necessary for a tribunal to be aware of the additional constraints on appellants, especially where the outcome depends substantially on credibility.

It is obvious that social security law provisions in respect of entitlement to benefit where there are issues about either a marriage or a 'living together' arrangement are not straightforward. While it is necessary to administer justice within the legal framework provided, in some instances there is no judicial discretion because the law simply has to be applied and in some instances it is down to the judge to determine what weight is to be ascribed to both oral and documentary evidence presented. That evidence is likely to be clouded by a range of emotional and cultural factors, both Western and non-Western, and it needs to be gathered with some sensitivity but analysed objectively. It is perhaps inevitable that on occasion errors on understanding or analysis result.