The Law Commissions Proposals for the Reform of the Law - Case Study Example

Family Law Task 1. She has never taken any steps to obtain a divorce from Michael. Are there any grounds on which she can do so Lucy entered into marriage commitment with Michael on her own will under harmonious conditions with full faith and honesty. She also used her gift money from her grandparents to invest in a home. But over the years she has a reason to believe that her husband is dishonest with her, she has proof of his illicit affairs with a woman named Vicky and she has lived separately from her husband for almost two years, partly with friends , on her own and partly with a with a man named Oliver. She came back and made an effort for reconciliation in her marriage by coming back to live with Michael after three months separation, after a strong dispute and quarrel, when she moved out to stay with friend.. And within this period was confirmed about the disharmony in their marriage with mutual verbal abuse and bickering. She moved out again in February 2006, and began to live with another man named Oliver since December, 2007. She has lived separately from her husband Michael for almost two years. She also does not have a child in concern for emotional bond. Under the circumstances, Lucy is very right in considering that she should file for divorce under the protection of Law for her sanity and life. Under the Family Law Act 1996, she has three grounds for filing a petition for divorce from Michael and achieve to get fair share in the division of property which has been established in the White v White [2001] 1 AC 596 your Lordships' House sought to assist judges who have the difficult task of exercising the wide discretionary powers conferred on the court by Part II of the Matrimonial Causes Act 1973.1 In particular the House emphasized that in seeking a fair outcome there is no place for discrimination between a husband and wife and their respective roles. Her first ground for divorce is adultery, in which she has e-mail proof of Michael being in relationship with another man, and thus morally violating his vow of marriage and social norm. She has personal proof of unreasonable behaviour and where she can submit petition which can contain a series of allegations against her husband's unreasonable behaviour. This would be evaluated and considered by the judge as the basis of annulment of her marriage. She has been forced to move out of her home for a length of time on mutual consent and live with friends. She did make an attempt to come back and reconcile. Even after that, she had to finally decide to move in and live with another man Oliver and had lived with for almost two years. This proves that on deteriorating domestic circumstances she has been forced to live away from home, husband and marriage. She is right in considering legal divorce by petition from her husband so that she can take charge of her life and finances to support herself.2 2. She has no income or capital. Michael is still living in the former matrimonial home, which is now worth 250,000 pounds. he is earning around 50,000 pounds pa. Michael bought some shares in his employer's company whilst he and Lucy were still together. They have shot up in value and are now worth 100,000 pounds. Advise Lucy about the likely outcome of her application for ancillary relief on divorce. Lucy should take pro-active measure once she has decided to get divorce from Michael on the financial issues and getting a fair share of her asset from her matrimonial home in which her investment for the payment has been the primary source of the mortgage and the investment has doubled. This should be based on the principal of 'equal sharing' in marriage which is considered the partnership of equals. This 'equal sharing' principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. In 1992 Lord Keith of Kinkel approved Lord Emslie's observation that 'husband and wife are now for all practical purposes equal partners in marriage': R v R [1992] 1 AC 599, 617. This is now recognised widely, if not universally. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But the emphasis is on the qualifying phrase: 'unless there is good reason to the contrary'. The yardstick of equality is to be applied as an aid, not a rule. This principle is applicable as much to short marriages as to long marriages: as seen in Foster v Foster [2003] EWCA Civ 565; [2003] 2 FLR 299, 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership.3 She has every right and claim in her matrimonial home as she has been the primary investor in the property. Under the new rulings which have been implemented since June 2000 the procedure for a couple on divorce, judicial separation or nullity of marriage making an application for ancillary relief should have fewer delays for settlement and lower costs. Michael is financially sound and enjoying the stability of home, freedom with his extra-marital affairs and no obligation towards his dependant wife. Lucy should take help from the court which under the Family Proceedings Act 1999, will also give court greater control over the conduct and proceedings of the divorce. The procedure to resolve matters of money or property do not have to occur at the same time as the divorce petition, judicial separation or nullity and will often be resolved after granting of the decree or decree absolute in the case of divorce. The division of the assets or payment of maintenance can be achieved by applying for a financial order. Different orders can be applied to the matrimonial home by the court depending on the circumstances of the parties. The new rules as shown by the Family Proceedings Rules 1991 will involve three stages starting with the first appointment, followed by the financial dispute resolution (FDR) appointment and if no agreement is reached between the parties the final hearing. During divorce procedures the court will divide the matrimonial assets based on the rules as set out in section 25 of the Matrimonial Causes Act 1973 (MCA 73). These rules consider for each party the matters of income, property, financial needs, obligations, standards of living, age of the parties and may other factors. Some of the choices which she may have under the law could be to Transfer the sole ownership or Deferred Interest Order granted by the Court or she can also opt to get Mesher Order granted by the court in which case wife is allowed to remain in the property rent free, and the sale of matrimonial home is postponed until children are 17 years of age(which is not the case with Lucy as she doe not have any children)and finally the last option is the Martin Order granted by court under which the wife and husband remains in the property for remainder of their life or until a "trigger' event occurs such as remarriage or a voluntary decision to leave the property. These are some of the options in case of Lucy's circumstances as both Lucy and Michael are joint owners of the matrimonial home which has appreciated over time and the relationship between them has deteriorated over time. 4 3. How, if at all, can Lucy establish a right to continue living in Oliver's house and protect herself from violence or threats by Oliver and Josh.(She only wants to stay there until she can get money from Michael and make other arrangements. Lucy does not have very strong support from English Law in the context of her rights while living as cohabitant with Oliver in her their home, but certainly she does have right to get protection on the issue of verbal abuse and domestic violence for the time she resides in the house with Oliver. English legislation remains firmly wedded to the marriage-model in defining cohabitation. This may be illustrated by two recent pieces of legislation. The Law Reform (Succession) Act 1995 and the Family Law Act 1996, both products of the recommendations of the Law Commission, adopted this model while implying that cohabitation was inferior to marriage. In the 1995 Act this was implied by the requirement that a cohabitant should have lived with the deceased as their spouse for at least two years before making a claim for reasonable financial provision: s 1(1)(ba). The definition of cohabitants in the Family Law Act 1996 s 62(1)(a) as 'a man and a woman who, although not married to each other, are living together as husband and wife' seems somewhat grudging, conveying the impression that they should be married to one another. Just in case this was not sufficiently clear, right-wing groups forced an amendment during the passage of the Act that would require judges to 'have regard to the fact that [cohabitants] have not given each other the commitment involved in marriage': s 41. The claims for protection from domestic violence or for reasonable financial provision on divorce are also de-sexualised. Under the Family Law Act, s 62(3)(c) any person who lives or has lived 'in the same household' is an associated person and as such entitled to claim a non-molestation order (s 42). However, only married couples, cohabitants, or those entitled to an interest in the house may make a claim for an occupation order (s 33) 5(Lind and Barlow 1995). Reasonable financial provision may be awarded to 'dependants' under the Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(e). In England, Part IV Family Law Act 1996, for example, gives all cohabitants the right to apply for non-molestation orders and all heterosexual and some same-sex cohabitants the right to apply for occupation orders in respect of the family home. Heterosexual cohabitants are now recognized as a formal category of applicant who may seek provision from the estate of their deceased partner and same-sex dependant cohabitants have a similar right. Nonetheless, cohabitants still lack a formal legal status. The Law Commission for England and Wales has, for the past seven years, been examining the property rights of all persons who share a home, including married couples, cohabitants, relations and friends (Law Commission 1993, Harpum 1995).6 Task 2 'The Law Commission's proposals for the reform of the law relating to cohabitants are inappropriate and should not be implemented'. Discuss The Law Commission's current proposal for the reform of the law relating to cohabitants are not much improved from their past status ten years back. The ruling is unfair and biased giving married couple more protection than cohabitants though they are faced with similar situations and threats within the relationship. They need equal protection and support from Law as those in formal married relationship. But English law still believes that "Marriage does provide a strong foundation for stability for the care of children. It also sets out rights and responsibilities for all concerned. It remains the choice of the majority of people in Britain. For all these reasons, it makes sense for the Government to do what it can to strengthen marriage."7 The current legal standards for cohabiting couples are "unclear and complicated" the Law Commission has said. A report published on the issue related to cohabiting couples considerably more legal protection, but still not as much as that enjoyed by married couples. This was truly discriminatory. Stuart Bridge, the commissioner leading the project, said: "More and more families involve couples who are living together but who have not married. The law that currently applies to resolve property disputes between such couples on separation is unclear and complicated, and it can produce unfair outcomes. This causes serious hardship not only to cohabitants themselves, but also to their children."8 The commission's report treads a fine line between the potential outrage of traditionalists, who are vigilant against any moves they perceive as undermining the institution of marriage, and progressives, who believe the discrepancy between legal standards for married and unmarried couples ignores the social changes of the last few decades. The scheme they are recommending, in the light of consultation, is distinct from that which applies between spouses on divorce. It would not apply to all cohabitants and where it did apply would only give rise to remedies relating to contributions made to the relationship. They do not accept the argument that such reform would undermine marriage. They believe consider that their scheme strikes the right balance between the need to alleviate hardship and the need to protect couples' freedom of choice. The Law Commission's proposals would cover any couple, heterosexual or homosexual, who have a child or have lived together for two years. Couples have the opportunity to opt-out of the system, however. The Law Commission of England and Wales concludes that, "There is a strong argument that the law should be reformed in order to bring about fairer outcomes for cohabitants on separation". 9 Work Cited Harpum, C Family Law 561(1995) Law Commission (1993) Twenty-Seventh Annual Report 1992 Law Com No 210. Lind and Barlow, 'Family Redefinition under Part III of the Family Law Bill' [1996] 2 Web Journal of Current Legal Issues . Pawlowski, M (1996) 'Cohabitation Contracts - are they legal' New Law Journal 1125 Cohabitation in Twentieth-Century England and Wales: Law and Policy' (2004) 26(1) Law and Policy 13-32. Cretney's Family Law (London: Sweet & Maxwell, 5th ed 2003). 'Family law and property law: competing spheres in the regulation of the family home' pp 37-52 in A. Hudson (ed) New Perspectives on Family Law, Human Rights and the Home (London: Cavendish Publishing, 2003). Wikipedia, "Divorce (conflict)." Available from http://en.wikipedia.org/wiki/Divorce_%28conflict%29. Internet; accessed 20 January 2008. "Ancillary relief." sharingpensions.uk. Available from http://www.sharingpensions.co.uk/marbreak3.htm#text4. Internet; accessed 20 January 2008. Manches, "THE LAW COMMISSION'S CONSULTATION PAPER: COHABITATION." Manches. Available from http://www.manches.com/news/news.phpid=76. Internet; accessed 20 January 2008. House of Lords, Judgments - Miller (Appellant) v. Miller (Respondent) and McFarlane (Appellant) v. McFarlane (Respondent) http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060524/mill-1.htm Read More