American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of Rights and Remedies of property accumulated by man and woman living together in illicit relations or under void marriage, which reads as under:
Although the courts have recognized the property rights of persons cohabiting without benefit of marriage, these rights are not based on the equitable distribution provisions of the marriage and divorce laws because the judicial recognition of mutual property rights between unmarried cohabitants would violate the policy of the state to strengthen and preserve the integrity of marriage, as demonstrated by its abolition of common-law marriage.
As far as the position of law with respect to live-in relationships in India is concerned.
In Indra Sarma v. V.K.V Sarma, [MANU/SC/1230/2013], the Apex court while differentiating between live-in relationship and marriage observed that:
Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.(Para 2)
Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest, etc. even if they are not sharing a shared household, being based on law. But live-in relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in relationship determines that he/she does not wish to live in such a relationship, that comes to an end. (Para 36)
In the (Para 55) the Apex Court laid down some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage”. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
- Duration of period of relationship: It means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
- Shared household: Who live or have at any point of time lived in a shared household.
- Pooling of Resources and Financial Arrangements: Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
- Domestic Arrangements: Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.
- Sexual Relationship: Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.
- Children: Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
- Socialization in Public: Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
- Intention and conduct of the parties: Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.
In S.P.S. Balasubramanyam v. Suruttayan @ Andali Padayachi and Ors. (AIR 1992 SC 756) the Hon’ble Supreme Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.
In the case of S. Khushboo v. Kanniammal and Ors. [MANU/SC/0310/2010], the 3 Judge bench of former Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S Chauhan enunciated:
(Para 21) While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, (with the exception of ‘adultery’) as defined under Section 497 IPC.