“… we share a property, we don’t share a life. We don’t cook for each other, we don’t wash for each other. I don’t have a keeper. I’m more or less independent and she is too”
“It is arguable that if two people of the same gender have not entered into a civil partnership and maintain that they are not living together as civil partners, it requires a high degree of proof to establish that they are so living together.”
“Further to the matters raised previously, it seems to me that the introduction of the concept of same sex marriage (whether or not, and in whatever form, the Bill currently before parliament passes into law) raises new difficulties. It seems that there is a legal difference between the concepts of marriage and of civil partnership (possibly including the relevance of consummation and of a sexual relationship generally). If that is so, it is difficult to see how the content of the regulations defining “living together as civil partners” can work unless the two people involved are in fact civil partners or are claiming to be such.”
“It is not immediately clear what the new concept of two people “living together as if they were civil partners entails. Centuries of case law has established what the nature of a marriage is with the result that there is some chance of being able to say when an unmarried heterosexual relationship resembles marriage. By contrast there is no established model of what is involved in a civil partnership. Any two people can register a civil partnership as long as they are of age, of the same sex, not within the prohibited degrees of relationship and not already married or in another civil partnership. There is no requirement that the relationship should be consummated (as there is for marriage). There is therefore a much wider variety of relationships that could be registered as civil partnerships and it is therefore more difficult to say whether any particular informal relationship resembles a civil partnership. … the definition is only concerned with … those relationships that in some way a heterosexual relationship or cohabitation [and] requires the decision maker … to conduct a thought experiment …”. “Living Together As Husband and Wife”
“18. As to the guidelines themselves, they focus on the concrete and observable facts like the parties’ financial arrangements and whether they have children. That may realistically reflect the evidence that will be available, especially in a context where at least one of the parties is receiving benefit and may wish to conceal the true nature of their living arrangements. Moreover, they are nearly always equivocal, individually and collectively. Experience shows that there is little, however apparently damning, for which an explanation cannot be provided by a wily claimant or, for that matter, an honest one. 19. Even when taken at face value, the significance of the evidence provided by these guidelines always has to be assessed by reference to the stage of development of the parties’ relationship – how and why they came to be where they were at the time in issue - as Woolf J acknowledged. More importantly, the guidelines have only ever been evidence of a relationship. And there is more to a relationship of husband and wife than what they show. 20. Coming now to the application of the guidelines, there are at least three problems in practice. The law requires a comparison with how a husband and wife would arrange their affairs. Those arrangements vary. Some marriages may be very stable, others volatile with parties splitting up and coming back together. The nature of the couple’s work may mean they are separated for long periods; some even maintain their own homes. Some have large families; others are childless, whether by choice or otherwise. There is an infinite variety of financial arrangements that are possible. Even public acknowledgement of their union may be limited with the couple maintaining their own separate identities for professional or personal reasons. 21. Add to this the wide variety of arrangements under which people may chose to share accommodation and the contrast between those who are married and those who are not becomes even more blurred. The particular form that the arrangements may take – who pays which bills, whether there is a joint account, who is shown on the utility bill – may owe as much to convenience or chance as to the nature of the underlying relationship between the parties. 22. Finally, there is the limited nature of the evidence. The parties may have an interest in concealing their true relationship. They may have organised their affairs, or tried to organise them, to present a different picture from reality. And they may fail to disclose or misrepresent the true facts when questioned. The tribunal is limited to making its decision on the information that the Department has been able to discover and the parties have disclosed.”
“The guidelines summarised by Woolf J remain relevant to that test, but they are not exhaustive. They are relevant both for what they show in themselves and for what they show of the nature and degree of the emotional attachment between the parties. This attachment must almost always be a matter for inference rather than direct evidence.”
“150 … But in any event the true nature of the relationship between Margot and Mary was unacknowledged, and indeed hidden. Some close members of the family knew of their relationship and other people guessed. But there were many people, including many who knew Mary well, who had no inkling. It seems to me that it is not possible to establish that two persons have lived together as civil partners unless their relationship is an acknowledged one …”