How do the courts determine what cohabitation is?
Generally, a judge will look at the lifestyle of the parties in a common law relationship. The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors: 1. Shelter – did the unmarried parties share accommodation; 2. Sexual and Personal Behaviour – did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others; 3. Services – did the common law couple share the traditional functions of a family; 4. Social – did the unmarried couple portray themselves as a couple to the outside world; 5. Societal – how were the common law partners treated by their community; 6. Economic Support – were the unmarried parties economically interdependent; and 7. Children – did the unmarried couple see children as part of their home and interact parentally with each others’ children.
