The Protection of Unmarried Cohabitants - Essay Example

Should legislation be introduced to assist and protect unmarried cohabitants when the relationship breaks down? One of the most basic human rights is the right to marry and to found a family.1 It is likewise a fundamental human right to choose a way of life in pursuit of happiness.2 Based on these fundamental human rights, it is recognized that marriage and family are the basic social institutions3 however the State cannot impose its will on individuals for them to marry when they prefer to cohabit without the benefit of marriage or civil partnership.4 The freedom to decide on matters affecting their private lives is addressed to the sound discretion of the individuals concerned. The right to respect for private and family life5 is not absolute but is subject to proportionate and lawful restrictions.6 Couples who marry or enter into civil partnership are guaranteed equal rights and State protection such as but not limited to mutual support and duty of care, possession of joint property without need of an agreement; any pre-nuptial agreement may be set aside by the courts to divide their property in case of separation; wills executed prior to marriage or constitution of civil partnership are automatically revoked except when the will is executed in consideration of the marriage or civil partnership; the surviving spouse or civil partner is not liable to pay inheritance tax on an estate inherited when they are domiciled in the United Kingdom (UK), the surviving spouse or civil partner shall inherit part or all of the estate of a spouse who dies intestate or without a will depending on the domicile of the deceased; the surviving spouse is paid a proportion of their deceased spouses pension and other rights and interests recognized by the UK. On the other hand, unmarried cohabitants are not conferred the same rights and protection thus the clamour for legislation to accord them equal treatment and protection. This writer submits that legislation is not necessary to protect unmarried cohabitants since their union remains a private relationship where the State was not involved or asked to participate in. A legislative pronouncement to define the relationship of unmarried cohabitants would curtail their right to choose not to mention their right to privacy since the State would now dictate the tenor of their relationship. It would cohabitation within the purview of the State. In many instances couples choose not to be bound by the restrictions of marriage or civil partnership and the responsibility that comes with marriage or civil partnership. State interference cannot likewise be justified to invoke protection since the couples knowingly choose a more liberal form of relationship not saddled or burdened with legal responsibilities of marriage or civil partnership. The unmarried cohabitants’ freedom to choose comes with legal consequences where marital rights and privileges conferred upon married and civil partners are withheld. The intention or reason of unmarried cohabitants in choosing not to marry or enter civil partnership is of no moment. They should not be rewarded with the same marital rights and privileges when they chose expediency over the basic institutions. Indeed, the State cannot interfere with personal choices but these individuals should not likewise demand protection or assistance. There is likewise no necessity for legislative pronouncements considering that there are ordinary legislations regulating cohabitation relationship such as property rights, contracts, agreements, wills and inheritance, custody and support of children and other related laws which may be applicable should the couple decide to separate. The unmarried cohabitants are not precluded from executing agreements, contracts or instruments to regulate their property regime. In the absence of any agreement, the property shall be divided in accordance with their monetary contributions in the purchase of the property. In Stack v Dowden,7 it was ruled that the net proceeds of the sale of their home should be divided 65 per cent to Dowden and 35 per cent to Stack since the cohabitants maintained financial independence throughout their 18 years of relationship. Although the property was jointly registered under their names, the contribution of each party in the acquisition of the property should be taken into account. Although the capital was paid off by the cohabitants, it was established that the bulk of the money used to purchase was from the sale of Dowden’s exclusive property and savings while Stack paid for the mortgage interest and endowment premiums then it was only proper that the division of the proceeds is 65% to 35%. In Jones v Kernott,8 the Court ruled that the 90% award in favour of Jones is proper since she shouldered all the financial cost and household expenses without the help of Kernott. However, it likewise recognized the right of Kernott to get 10% of the value of the family home since he has stopped contributing to the household expenses imputing his entitlement to the property which shows that they did not share common intentions. In James v Thomas,9 the Court ruled Thomas as the sole owner of the property since James failed to adduce evidence to prove her claim. Culled from the facts, the property was inherited by Thomas from his parents. James alleged that in 1989 she contributed 5,000 pounds to pay taxes. From the time of their cohabitation the couple joined hands in the business of Thomas as an agricultural building and drainage contractor. A series of renovations and improvements were made by the couple in the house funded by the business of Thomas. James claims that she is entitled to a part of the property since she gave a hand in the financial provisioning for the propertys improvements however the courts found her claims lacking in evidence. The unmarried cohabitants are not prohibited from inheriting from each other provided that the decedent cohabitant had executed a will naming the surviving cohabitant as the heir. Under the Law Reform (Succession) Act 1995, the surviving cohabitee may apply for provisions from the estate of the deceased cohabitee and qualify when it is shown that he or she had lived with the deceased during the whole of the period of two years ending immediately before the date when the deceased died provided further that they lived in the same household as the deceased as the husband or wife of the deceased. In Kotke v Saffarine,10 the Court rejected the application under the Fatal Accidents Act 1976 since the parties had each their own properties. Although they have lived together and maintained one household upon his death in March 2000, in July 1998, the couple had two households. Based on this, the Court ruled that they had not lived together for two years at the date of the deceaseds death. Furthermore, apart from physical presence there had been a degree of reticence from both in respect of their future commitment. This case demonstrates that whilst it is possible for a couple to retain individual properties, they must create one common household. The two-year requirement is necessary to establish that the cohabitants had lived together as man and wife and had duty of care towards each other. It is likewise incumbent upon the surviving cohabitee that the relationship was an enduring one and was not contrived or concocted simply to qualify for the estate’s provisions. Under the Children Act 1989, an unmarried mother has the sole parental responsibility over her children however this was amended under the Adoption and Children Act 2002 where parental responsibility shall be acquired by the father if he is registered as the child’s father; there is a parental responsibility agreement; or when the court orders that he shall have parental authority upon his application. The legislative pronouncement protecting cohabitation may be used by couples who are proscribed by law to marry by reason of legal impediment or public policy to circumvent the law. A case in point is B & L v the United Kingdom11 where a parent-in-law is prohibited from marrying their child-in-law unless both had reached aged 21 and both their respective spouses had died. B was L’s father-in-law, and they wished to marry. L’s son treated his grandfather, B, as ‘Dad’. However, upon application to the European Court of Human Rights (ECHR), it was ruled that the prohibition violates the right to marry notwithstanding its laudable and legitimate aim of protecting the family and any children of the couple. The prohibition was based primarily on tradition and considering the same situation, no legal prohibition exists when the couple would engage in an extra-marital relationship. In fine, there are enough laws to protect the interest of unmarried cohabitants. They must only be vigilant in protecting their rights and interests so that they may not be unduly deprived of their rights and interests. Any legislation that would be enacted would put the cohabitation relationship at par with marriage and civil partnership is a mockery to the institutions. It would further erode marriage and civil partnership and from the growing number of couples choosing to cohabit without the benefit of marriage or civil partnership, it is marriage and civil partnership that need protection. Unmarried cohabitation should be left alone to give the parties freedom to choose but they cannot invoke protection as this is a direct assault to the institutions of marriage and civil partnership. It is the obligation of the state to promote the stability of marriage and civil partnership thus it must resist any move or attempt to promote cohabitation as a matter of policy. References: Books: Mack, E. & Meadowcroft, J., John Locke, Volume 2 of Major Conservative and Libertarian Thinkers, Continuum International Publishing Group, 2009 Primary Legislation: United Kingdom. Adoption and Children Act 2002. 2002 c. 38. Accessed from http://www.legislation.gov.uk/ukpga/2002/38/contents. Accessed on 25 March 2012. United Kingdom. Children Act 2004. 2004 c. 31. Accessed from http://www.legislation.gov.uk/ukpga/2004/31/contents. Accessed on 25 March 2012. United Kingdom. Children Act 1989.1989 c. 41. Accessed from http://www.legislation.gov.uk/ukpga/1989/41/contents. Accessed on 25 March 2012. United Kingdom. The Civil Partnership Act 2004. 2004 c. 33. Accessed from http://www.legislation.gov.uk/ukpga/2004/33/contents. Accessed on 25 March 2012. United Kingdom. The Equality Act 2010. 2010 c. 15. Accessed from http://www.legislation.gov.uk/ukpga/2010/15/contents. Accessed on 25 March 2012. United Kingdom. The Human Rights Act 1998. 1998 c. 42. Accessed from http://www.legislation.gov.uk/ukpga/1998/42/contents. Accessed on 25 March 2012. United Kingdom. Law Reform (Succession) Act 1995 United Kingdom. Marriage Act 1994. 1994 c. 34. Accessed from http://www.legislation.gov.uk/ukpga/1994/34/contents. Accessed on 25 March 2012. United Nations. The Universal Declaration Of Human Rights. Accessed from http://www.un.org/en/documents/udhr/. Accessed on 25 March 2012. Cases: B & L v the United Kingdom. ECHR Application No: 36536/02.13 September 2005. Accessed from http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/37273e1abf82f99cc125707700448475?OpenDocument. Accessed on 25 March 2012. James v Thomas. [2007] EWCA Civ 1212. Accessed from http://www.familylawweek.co.uk/site.aspx?i=ed1113. Accessed on 26 March 2012. Jones v Kernott. [2009] EWHC 1713; [2010] EWHC Civ; [2011] UKSC 53. Accessed from http://www.familylawweek.co.uk/site.aspx?i=ed89312. Accessed on 26 March 2012. Kotke v Saffarine. [2005] EWCA 221 / [2005] 2 FLR 517. Accessed from http://www.bailii.org/ew/cases/EWCA/Civ/2005/221.html. Accessed on 25 March 2012. Stack v Dowden. [2007] UKHL 17. Accessed from http://www.familylawweek.co.uk/site.aspx?i=ed749. Accessed on 25 March 2012. Read More