Family Law - Case Study Example

Running Head: FAMILY LAW Family Law – Cohabitation [Institute’s Harminder and Imran had been cohabiting for five years in a three bedroom dwelling. A child Neera who is four years of age was born to them. In addition, Imran has a child, Sukdip, who is eight years old, from a previous marriage that ended in divorce six years ago. The current status of their relationship is that Imran harbours unfounded suspicions regarding Harminder and is convinced, though wrongly, that she is having an affair. He had accused her in this regard several times and had also followed her on many occasions. Since, the past two weeks Imran increased his aggressive behaviour towards Harminder and the latest violence that he indulged in against her resulted in one of her ribs getting fractured. Harminder kept an appointment with the Accident and Emergency Department and then went to her friend’s one bedroom flat along with her daughter Neera. Imran is residing in the same house with Sukdip. In order to advise Harminder in respect of the remedies available to her one has to examine the various provisions of the Family Law Act, Domestic Violence, Crime and Prevention Act, Property Law and the law applicable to cohabitees in the United Kingdom. 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). Cohabitation rights are covered by general property law in England, Wales and Northern Ireland. Title to property is mainly determined by who had either purchased the property or legitimately obtained it. In the event of the breakdown of a cohabitation relationship, there exist certain principles of law that take care of moveable property. Constructive trusts, resulting trusts and proprietary estoppel are 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 on the basis of such reliance (United Kingdom). In Scotland if a cohabitation relation breaks down, the partner who neither owns nor tenants the cohabitation house can approach the court under the Matrimonial Homes Act, in order to obtain occupancy rights (MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981). The court may permit such a partner to occupy the house for six months, which may be extended by another such equivalent period. The courts resort to the Family Law Act, in order to bestow the same occupancy period in England and Wales (Family Law Act 1996, 1996). The Family Homes and Domestic Violence Order provides for the grant of occupancy periods that are twice as long in Northern Ireland (The Family Homes and Domestic Violence (Northern Ireland) Order 1998, 1998). With regard to occupational rights, she can approach the family court for redressal. The family court will take the duration of cohabitation into consideration, while assessing her property rights in their erstwhile common dwelling. Since, the house is owned jointly by her and Imran; she need not produce any further proof to claim residential rights. Harminder is a joint owner of the property; hence she has every right that a joint property owner possesses. Therefore, she can obtain such orders from the court as will enable her to reside in that house. Since, Neera was born to them; Imran has to make arrangements for her maintenance. Moreover, she can obtain an injunction from the court, which would restrain Imran from entering the house as he indulges in violent behaviour towards her on a continuous basis. Moreover, cohabitants in a discontinued relationship can claim maintenance for children born in that relationship. The Child Support Agency’s objective is to guarantee that parents contribute towards the maintenance of the child (About Us). Payments regarding maintenance can be obtained from the Child Support Agency as per the provisions of the Child Support Act, which is applicable to England, Wales and Scotland (Child Support Act 1991 (c.48), 1991), or in Northern Ireland (The Child Support (Northern Ireland) Order 1991 (Consequential Amendments) Order (Northern Ireland) 1993 , 1993) it can be obtained from the Child Support Order (United Kingdom). Hence, Harminder can claim these benefits for her child Neera. The Domestic Violence, Crime and Victims Act 2004 takes cognizance of the fact that the continuum of the Criminal Justice System often failed to render justice to victims whose cases were brought to court with the result that domestic violence cases have extraordinarily high attrition rates. The Domestic Violence Crime and Victims Act 2004, seeks to redress this sorry situation by introducing a series of new measures which will improve the effectiveness of the protection offered to victims and will give the Police powers to arrest perpetrators. The Police are also taking a more practical approach to prosecution, even where the victim does not want to press charges. The Domestic Violence, Crime and Victims Act 2004, provides legal protection and assistance to victims of domestic violence. Victims of domestic violence may be frightened that if they seek help the violence will get worse. The Family Law Act 1996 provides protection for victims of domestic violence and their children. Everyone has the right to be protected and live in a safe environment with their children. There is no specific offence of domestic violence, because not every activity that falls within this definition amounts to a criminal offence. Nevertheless, incidents like threatening behaviour, violence or abuse between adults who are or have been in a relationship together, or between family members, regardless of gender or sexuality are deemed to be acts of domestic violence (Home Office, 2007). 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). One of the main differences between marriage and cohabitation come to fore in respect of financial provisions 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 a separation of cohabiting couples (United Kingdom). 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 addition to these provisions of property law cohabitants can avail themselves of many legal remedies on separation. The court is empowered under the provisions of the Family Law Act 1996, to issue occupation orders in relation to the house where the cohabitants dwell. Harminder can approach the police authorities, in order to lodge a complaint in respect of domestic violence leading to grievous injury. Moreover, she can approach the Crown Prosecution Service and describe her grievance by submitting a written complaint. Further, she can make a complaint to the Criminal Injuries Compensation Authority outlining the harm done to her (Home Office, 2005). This is the procedure to be adopted by Harminder in the context of the domestic violence that she had been subjected to by Imran. References About Us. (n.d.). Retrieved April 26, 2007, from Child Support Agency: http://www.csa.gov.uk/new/about/ Bernard v. Josephs, 3 All ER 162 at 163 (1982). Child Support Act 1991 (c.48). (1991). United Kingdom. England and Wales: © Crown Copyright 1991. 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 Family Law Act 1996. (1996). © Crown copyright 1996. Home Office. (2007, March 14). Domestic violence. Retrieved April 26, 2007, from Keeping crime down: http://www.homeoffice.gov.uk/crime-victims/reducing-crime/domestic-violence/?version=2 Home Office. (2005, October). The Code of Practice for Victims of Crime. Retrieved April 26, 2007, from Criminal Justice System: http://www.homeoffice.gov.uk/documents/victims-code-of-practice?view=Binary MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981. (n.d.). © Crown Copyright 2006 . The Child Support (Northern Ireland) Order 1991 (Consequential Amendments) Order (Northern Ireland) 1993 . (1993). Statutory Rule 1993 No. 157 . Northern Ireland: © Crown Copyright 1993. The Family Homes and Domestic Violence (Northern Ireland) Order 1998. (1998). Statutory Instrument 1998 No. 1071 (N.I. 6) . © Crown Copyright . United Kingdom. (n.d.). Retrieved April 23, 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