Rights and Duties of Cohabitees - Essay Example

Family Law One of the main differences between marriage and cohabitation comes to the fore in respect of financial provisions to be made, subsequent to the occurrence of separation. In general, men contribute financially to a marriage, whereas women’s contributions are usually restricted to areas like housekeeping and other domestic duties. However, at the time of divorce, these contributions are deemed to be of equal value. Such provisions do not exist in respect of separating cohabitees. The courts have acknowledged that unmarried heterosexual couples and married couples should be treated similarly in property disputes. This is borne out by the judgment in Bernard v Josephs, wherein Lord Denning opined that while determining individual shares, it was necessary for the court to apply the same rules to cohabiting and married couples (Bernard v. Josephs, 1982). In England, Wales and Northern Ireland cohabitation rights come under the purview of general property law. Hence, the right to property primarily depends on who had purchased the property or acquired it legally. Certain legal mechanisms deal with moveable property in cases where a cohabitation relationship breaks down. Constructive trusts, resulting trusts and proprietary estoppel are the mechanisms that depend on the ability of the claimant to establish that there was an agreement or common intention for joint ownership and that the claimant had functioned based on such reliance (United Kingdom ). A cohabitant can claim an interest in the property even though he is not a joint owner of the property provided he is able to establish that a tangible contribution had been made in favour of the property. For instance, the cohabitant should have spent the money for improving the property, invested the money as a deposit or should have made mortgage repayments (United Kingdom ). Under the extant law, after the collapse of a marriage the court is empowered to issue pension adjustment orders. However, the Law Commission subscribes to the view that these benefits should not be granted when a cohabitation relation breaks down. The Commission had reached this conclusion because it did not accord the same importance to cohabitation that it did to marriage (Consultation Paper on the Rights and Duties of Cohabitees, 2004). Cohabitants are singularly inept when it comes to adopting legal measures that would afford them or their partners protection on separation, moreover they do not resort to protective measures like marriage or entering into specific agreements (Toulson, 2006). Accordingly, the Government has initiated moves to bring in legislation that would provide some rights to cohabitants in the UK. According to Harriet Harman, the family justice minister, this would allow cohabitees to claim lump sums, share in the property, maintenance payments, etc. Although the Labour Government has not specifically stated so, the fact remains that it is not in favour of according these rights to childless cohabitees. The Church of England also held a similar opinion (Clare, 2006). When a cohabiting couple separate, then the assets belonging to a partner are retained by that partner. This is unlike a divorce in which there is some sort of sharing of assets. Moreover, the monetary and non – financial inputs made by the other partner were not usually taken cognizance of and there was generally no equal division. In addition, if a partner had been monetarily dependant on the other during the cohabitation, such dependency was not accorded recognition at the time of separation. These are some of the drawbacks in the existing law that disadvantage childless cohabitants (Tennant, Taylor, & Lewis, 2006). In the context of state benefits, the law accords the same treatment to married and heterosexual unmarried couples. For instance, a cohabiting couple will be accorded the status of a married couple only under certain circumstances, in respect of benefits (Section 78(6). Social Security Administration Act 1992(c.5), 1992). The objective of these provisions is not the elimination of bias between married and unmarried couples but to make certain that the benefits available to persons staying on their own are not claimed by unmarried couples (Douglas, 2001). The Inheritance Act (Inheritance (Provision for Family and Dependants) Act 1975) permits a cohabitant to apply for family provision if that person had cohabited with the deceased, in a manner akin to that of a married couple, for a minimum period of two years prior to death (Section 1A. Law Reform (Succession) Act 1995 (c.41), 1995). Moreover, maintenance applications can be preferred only by an individual who was being maintained by the deceased immediately before death (Law Reform (Succession) Act 1995 (c. 41)). Section 28, empowers a cohabitee to claim financial provision on separation. Cohabitant partners who desire to proceed in accordance with the law of trusts have to issue proceedings for declaration under the TOLATA (Trusts of Land and Appointment of Trustees Act 1996). Uncertainty to a significant extent was generated due to the seeming cessation of constructive trust by the court of Appeal; this transpired in Oxley v Hiscock (Oxley v Hiscock, 2004). The Civil Partnership Act 2004 was enacted through Royal Assent on 18th November, 2004. Under this act persons of the same sex can from a relationship that is legally not much different from marriage. Several amendments have transpired and it is no longer essential for civil partners to establish that they subsist as a married couple. It is merely sufficient to demonstrate that they live as civil partners (Schedule 8. Paragraph 13(3). Civil Partnership Act 2004). The objective of the legislation is to ensure that marriage and civil partnership are accorded a similar social and legal status, in order to bestow equality upon couples who are of the same gender. Marriage is a ceremonial event that is celebrated in society. The Marriage Act 1949 had been amended by the Gender Recognition Act 2004. Under this act, the clergyman need not solemnize the marriage of a person whose gender had been surrogated for the purpose of the marriage and thereby becomes the acquired gender under the Gender Recognition Act. As such there is a need to change certain principles of the substantive law because the legislation controls the marriage system from a negative perspective. Under the current legislation the marriage would become null and void if certain requirements were not satisfied. The law never recognises a void marriage that took place. However, a voidable marriage can be valid till such time as a court annuls it. Married couples, divorced couples, present and former civil partners, present and former cohabitants, persons who had agreed to marry one another and persons who had entered into a civil partnership will be deemed to be associated persons for the purposes of Part IV of the Family Law Act (Section 62(3)). The Family Law Act has recognized a wide range of personal relationships. In the case of personal protection this recognition could be of much help. The Family Law is implemented in England in a phased manner but not at once. This is because of the reasons that concern the recognition of personal relationships. Hetero sexual couples in cohabitation who do not wish to marry also have some rights under the legislation. However, cohabiting same sex couples are deprived of these rights if they fail to register their relationship. People living together as companions or carers will not have rights. In the case of Fitzpatrick case the court had decided that cohabiting same sex partner could be considered as a member of the deceased tenant’s family as a successor (Fitzpatrick v. Sterling Housing Association). In the case of Corbett v. Corbett it was held that the gender of a person, for legal purposes, would be that which it had been at birth (Corbett v. Corbett, 1971). At that point of time a marriage was considered legal only if it took place between a man and a woman. The scientific knowledge extant at that point of time left much to be desired and the surgical techniques that had been developed in respect of gender reassignment were vastly inferior in comparison to the techniques available at the present moment. In addition, the legal position was that only a marriage between a man and woman was considered to be valid (Section 11(c). Matrimonial Causes Act 1973). Subsequently, measures were adopted, in order to diminish the discomfiture experienced by transsexual people by reissuing driving licences, passports, and National Insurance cards, which incorporated their new names and by making available gender reassignment procedures on the NHS. However, the narrow and bigoted thinking that had been engendered by the judgement in the Corbett case was predominant and this led to a denial of social recognition to transsexual individuals. This legal position was untenable and in the 1980s and 1990s it was subjected to sustained challenges in the European Court of Human Rights. Two major drawbacks of the legal position were placed before the European Court of Human Rights, namely the obdurate stance of the government in refusing to alter birth certificates in respect of gender and the state’s unwillingness to acknowledge the altered gender of a transsexual for matrimonial purposes. The contention was that the state had violated Articles 8, 12, and 14 ( Rees v UK). This unjust situation in English law brought about an increased isolation and finally, the European Court in 2002, declared that the position adopted by the United Kingdom was untenable in respect of the legal position that had been established by the European Convention. Subsequently, the UK legal stance was defeated in Christine Goodwin, in which a male-to-female gender operation transsexual person, who had undergone several acts of discrimination and humiliating experiences in the context of employment, pension entitlements, loan, etc, due to the status of her gender and because of her birth certificate, which was not altered by the UK Authorities. Further, the UK law did not permit her to marry her male partner, but the European Court held that Goodwin was well within her rights to marry her male partner (Goodwin v UK). In order to conform to these trends, the Gender Recognition Act 2004 was introduced in the United Kingdom (Gender Recognition Act 2004). It permits any transsexual individual, above the age of eighteen years, to procure a gender recognition certificate that allows such a person to obtain complete legal recognition for the altered gender (Section 1(2). The Gender Recognition Act 2004). With this act transsexual people can marry a person whose gender is opposite to their acquired gender or enter a civil partnership with a person of the same sex. The law provides spouses with several rights on separation. These rights include property rights, matrimonial home rights, lump sum payments, periodical payments and pension rights. A married couple have to seek the intervention of the court if they desire to bring their marriage to an end formally. After separation, each of the spouses is duty bound to support the other financially. On the other hand cohabitating partners are not legally bound to support each other monetarily on the termination of their relationship. As such it can be concluded that the law has granted a number of rights to the spouses, in order to protect the sanctity of marriage. Cohabitants have not been accorded the same status and rights as married couples, because many persons, institutions and organizations are of the opinion that cohabitants do not have any significant amount of commitment towards their relationship. However, same – sex couples and transsexual couples have been accorded better rights than what has been bestowed upon cohabitant couples. References Rees v UK, (2/1985/88/135) [1987] 2 FLR 111. Bernard v. Josephs, 3 All ER 162 at 163 (1982). Clare, D. (2006, October 31). New ‘divorce’ rights for unmarried couples. Retrieved April 23, 2007, from The Guardian: http://www.guardian.co.uk/frontpage/story/0,,1935575,00.html Consultation Paper on the Rights and Duties of Cohabitees. (2004, April). Retrieved April 25, 2007, from The Law Reform Commission: http://www.lawreform.ie/files/Cohabitees%20CP%20%20April%202004.pdf Corbett v. Corbett, P 83, 104, 105, 106. (1971). Douglas, G. (2001). An Introduction to Family Law. Oxford University Press. ISBN: 019876541X. P. 67. Fitzpatrick v. Sterling Housing Association, No. 4 All ER 705. (1994.). Gender Recognition Act 2004. (n.d.). Crown copyright. Goodwin v UK, (App No 28957/95) [2002] 2 FLR 487 (ECtHR).. Inheritance (Provision for Family and Dependants) Act 1975. (n.d.). Law Reform (Succession) Act 1995 (c. 41). (n.d.). Oxley v Hiscock, EWCA Civ. 546, (2005) Fam. 211 (2004). Schedule 8. Paragraph 13(3). Civil Partnership Act 2004. (n.d.). Section 1(2). The Gender Recognition Act 2004. (n.d.). Section 11(c). Matrimonial Causes Act 1973. (n.d.). Section 1A. Law Reform (Succession) Act 1995 (c.41). (1995, November 8). Crown copyright 1995. Section 62(3). (n.d.). Family Law Act 1996. Crown copyright. Section 78(6). Social Security Administration Act 1992(c.5). (1992). Crown copyright 1992. Tennant, R., Taylor, J., & Lewis, J. O. ( 2006, October). Separating from cohabitation: making arrangements for finances and parenting. Retrieved April 23, 2007, from http://www.natcen.ac.uk/natcen/pages/publications/research_summaries/NC16 Toulson, R. (2006). Great Britain: Law Commission, Great Britain. The Stationery Office. Trusts of Land and Appointment of Trustees Act 1996. (n.d.). United Kingdom . (n.d.). Retrieved April 24, 2007, from Legal Rules Regarding Patrimonial Interests, Suggestion and Duties of Couples Living Together But Not Being Married: http://www.iaj-uim.org/2006/2-UK.html Read More