Family Law Has Evolved to Suit Modern Society - Essay Example

?Essay Topic: Family Law Has Evolved to Suit Modern Society. However it Still has Further to Evolve. Family law has continued to evolve in England and Wales with significant changes introduced in 2005.1 The Civil Partnership Act 2004 came into force in December 2005 as well as the Adoption and Children Act 2002. The Amendments of the Children Act 1989 also came into force in 2005 as well as the Gender Recognition Act 2004.2 Each of these additions to Family law are indications that legislators are intending to improve the institution of family so that it is consistent with modern society. However, the Law Commission’s paper recommending reformations that would govern the distribution of property between cohabitants upon the breakup of the relationship3 demonstrates that Family Law in England and Wales has still further to evolve before it can be consistent with modern society. The Law Commission’s paper identifies a crucial inconsistency between British Family law and modern society. The reality is families are formed without the benefit of a solemnized marriage in modern society, particularly between same sex partners. These families start out like any other family intending to make their lives together indefinitely and by making this commitment they raise children together and purchase property together. In other words, in modern society the structure of the family has changed dramatically.4 The introduction of the Civil Partnership Act 2004 grants same sex couples with the facilities to establish a partnership that is similar to a civil partnership and confers upon the partners specific rights and responsibilities that are commonly granted to married couples.5 However, there is no right to claim financial/spousal support upon the breakdown on a civil partnership.6 Beyond the 2004 Act, unmarried couples remain at a disadvantage in terms of settling property once the relationship comes to an end. This reality has led the Law Commission to refer to the concept of common law marriage as a “myth”.7 As Baroness Ruth Deech explains, the idea that there is a family institution in England and Wales referred to as “common law marriage” is “erroneous”.8 The judiciary does not have the authority to settle property or the rights of couples who have lived together for any period of time and have decided to end their relationship. The only recourse of cohabiting couples ending a relationship is to seek civil remedies relative to claiming property through litigation.9 For unwed couples who live together all questions relative to finances and property must be resolved by reference to the applicable property and trusts laws.10 It is unfortunate that unmarried couples are denied the opportunity to resolve the financial issues arising out of the breakdown of their cohabitation when modern society demands that they do. Samantha Singer explains that public opinion is on the side of granting unmarried cohabitees the same property rights as married couples. For instance, British Social Attitudes Survey conducted in 2006 revealed that most members of the public are of the view that “cohabitants should have access to financial relief on relationship breakdown”.11 A more recent study on unmarried cohabitees in 2007/2008 revealed that 74% of the respondents supported the idea of unmarried couples having access to marital property settlement laws upon the breakdown of their relationship.12 The consequences of the denial of matrimonial property settlement laws are particularly difficult for the cohabitee who depended on the financial support of the other cohabitee. The Family law applicable to married couples certainly recognizes the potential for hardship on the dependent spouse. For instance, Section 25A(2) of the Matrimonial and Family Proceedings Act 1984 provides that the court is required to determine whether or not an order for spousal support is necessary and in doing so, the court must determine: Whether it would be appropriate to require those payments to be made…for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.13 It must be noted however, that Section 24A(2) of the Matrimonial and Family Proceedings Act 1984 is a marked improvement over the Matrimonial Causes Act 1973. Under the Matrimonial Causes Act 1973, spousal support could only persist until such time as the wife either remarried or cohabited with another man.14 Thus spousal support was of limited duration. Now, pursuant to the Matrimonial and Family Proceedings Act 1984, spousal support is for the lifetime of either of the spouses and is particularly granted where there are children of the marriage. It therefore follows that while Family law has made significant strides in adopting to the realities of modern life in terms of settling the breakdown of the marriage, it has not kept pace with social and modern realities relative to cohabitating couples. The cohabitee that depends on the other cohabitee for financial support during the cohabitation is just as vulnerable to hardship as a married spouse who depends on his/her spouse for support during the marriage. It is hardly fair that the laws would recognize the welfare of spouses and ignore the welfare of cohabitees. A similar injustice and inconsistency with the reality of modern society can be observed in the relation to the rights of unmarried parents following the breakdown of a relationship. Where a child is involved, the rights of parents and the duty to provide financial support is provided for by the Children Act 1989 (as amended). It must be noted however, the Children Act 1989is not focused on the idea of preserving and protecting parental rights and as such it is entirely unsuitable for assessing parental rights to financial support in respect of a child. Gordon and Paul remind that the Children Act 1989 was implemented “at a time of considerable tension in the relationships between the state, the family and the individual”.15 A number of child neglect reports over the years influenced the implementation of the Children Act 1989 and welfare was prioritized in a way that undermined the social, welfare and economic conditions of the time. What emerged instead was a “coercive child protective” regime at the expense of parental rights.16 Pursuant to the Schedule 1 of the Children Act 1989 an unwed parent granted actual custody of the child or children of the union, may have possession of the previously shared residence. However, once the child attains the age of majority the property is returned to the owner and if sold, the funds paid for the property are distributed according to the actual beneficial interests of the cohabitees. Pursuant to Schedule 1 of the Children Act 1989, if the primary caregiver does not have a beneficial interest in the property, he/she should not expect to receive either a part of the proceeds of sale or any form of capital conversion upon having to vacate the home.17 The consequences of Schedule 1 of the Children Act 1989 for the unwed cohabitees do not suit the realities of modern society. As previously noted, couples cohabit and in the course of doing so invest both financially and emotionally in the establishment of a life together. The reality is, they either give up work to raise the couple’s children and to take care of the family home or the work and inject funds into the family home even if their names are not included on the documents of title. As the Law Commission explained, the Children Act is not underused. The Law Commission noted that out of 1024 Schedule 1 applications, only 389 orders were made. The number of order actually made is “surprisingly small”.18 The Law Commission explored a number of possibilities for the underuse of Schedule 1 order applications, among the reasons were the unjust consequences for the cohabitee who does not have title to the family home and must eventually vacate the home without compensation for any contribution to the home during the relationship.19 Burns v Burns represents the kind of injustice that accompanies unmarried couples and the division of the family home. In this case the couple were not married and thus the provisions of the Matrimonial Causes Act 1973, Sections 24 and 25 could not apply, thus the case was resolved by reference to ordinary property laws. The plaintiff, Valerie Burns had cohabited with the respondent for 19 years and had spent 17 of those years in the home which was the subject of the law suit. The house was purchased by the respondent and his name alone appeared on the title deeds. 20 Although the plaintiff had not made any contributions to the purchase of the house and did not contribute to the mortgage payments, she did raise the couple’s two children, took care of the home and used her own income for household expenses. Amongst her contributions was the purchase of fixtures, appliances and she decorated the home. In her claim for a beneficial interest in the home, the court ruled that nothing short of a financial payment relative to the purchase of the property would suffice. In other words mortgage payments or some other form of expanses undertaken by the plaintiff that would have left the respondent’s income free to observe the mortgage would have sufficed to support a claim for a beneficial interest in the family home.21 Without recourse to the matrimonial causes legislation, unmarried couples relying on the common law property principles of resulting and constructive trusts will face uncertainties and in many cases an injustice. For example, the laws regulating constructive and resulting trusts typically determine that any property held in joint names and declaring a declaration of the beneficial interests of the property owners is strictly adhered to.22 Despite these consistent rulings a different result was arrived at in the case of Stack v Dowden by the House of Lords. In this case the property was in the names of both the plaintiff and the respondent and the declaration of ownership was one of joint beneficial interests. This meant that the couple owned the property equally. The House of Lords held however, that despite the joint legal and beneficial ownership, this title could be defeated by evidence proving a different reality. Ultimately, the court was satisfied that since the couple had maintained separate financial accounts and the female cohabitant had made more money than her male partner, she was entitled to a larger share of the property. Thus the property was divided 65% to the female cohabitee and 35% to the male cohabitee.23 The result of this outcome is entirely inconsistent with the realities of modern society. When married couples purchase property together it is generally assumed that their intentions to share property equally is manifested by things said and done at or just prior to the time of purchase. Moreover, the declaration of beneficial interests and the fact that both names appear on the title deeds would stand as irrefutable evidence that the couple intended that the property be divided equally among them. Unfortunately, for unmarried couples, this inferences do not appear to carry much weight. It would therefore appear, that although couples live as married couples they are not accorded the treatment that a married couple can expect in the settlement of their proprietary interests accumulated during cohabitation. In the final analysis, although couples living together mirror the same traits and trends of married couples, the law refuses to recognize this reality. Unmarried couples therefore continue to be marginalized by Family law, despite significant changes over the years. For the most part, Family law has recognized that modern society has changed the way that families are constructed and children are raised. The institution of marriage is no longer perceived as necessary for forming families and raising children. Yet, the Family law appears to take a punitive approach to unwed couples by denying them access to property settlements under marital laws. As a result, unwed couples are required to use general property law principles and the principles applicable to the law of equity and trust. These laws are replete with uncertainties. Moreover, it would appear that the courts in ordinary property and trusts laws treat married couples differently than they do unmarried couple. Bibliography Textbooks Standley, Kate. Family Law. (London, UK: Palgrave MacMillan, 2006). Articles/Journals Baroness Ruth Deech, ‘Cohabitation.’ (2010)39 Family Law,39-41. Gordon, Jack and Paul, Paul.‘The Children Act 1989 – Protection or Persecution? Family Support and Child Protection in the 1990s’, (Summer 1995) 15(1) Critical Social Policy, 26-39. Lewis, L. Debates and Issues Regarding Marriage and Cohabitation in the British and American Literature. (2001) 15(1) International Law Policy Family, 159-184. Singer, Samantha. ‘What Provision for Unmarried Couples Should the Law Make when Their Relationships Break Down? (2009) Family law, 234-241. Cases Burns v Burns [1984] 1 All ER 244. Huntingford [1993] I FLR 736. Springer v Defoe [1992] 2 FLR 388. Stack v Dowden [2007]UKHL 17. Walker v Hall [1984] FLR 126. Statutes Children Act 1989. Civil Partnership Act 2004. Matrimonial and Family Proceedings Act 1984. Matrimonial Causes Act 1973. Reports Cohabitation: The Financial Consequences of Relationship Breakdown, (2007) Law Com. No. 307. Read More