Institution of the Marriage - Essay Example

Marriage is the most preferred that plays a key role in child rearing. The majority of the people subscribe to the opinion that marriage is of great importance and that those couples who are desirous of having children should get married. Even though support for marriage is on the higher side, the other life style of cohabitation is increasingly seen as a tolerable alternative to marriage. Although marriage is seen as the preferable relationship for child rearing, cohabitants cannot be considered to be inferior in parenting matters. All the same, married couples have been considered to be better parents than unmarried ones1. The central idea involved in this phenomenon is the individualism in personal relationships and selfishness which demeans the commitment of the male and female towards each other. The increase in such type of selfish individualism in relationships ships however shows a gradual decline in the rate of divorce and extra marital child births. The tendency of cohabitation is rising even though the system itself is unstable in comparison with the institution of marriage. The commitment towards each other may differ among married couples and cohabitants2. This variety in family reality has slowly but surely found its way into the customs of legal regulation. The hub of family law has exhibited considerable variation. The alterations that have taken place during the past twenty to thirty years in the field of family law have depicted a diminution in the focus placed on the tribulations of married couples. This diminution has been offset by an overpowering occupation with the troubles faced by people in other domestic relationships chiefly those being faced by unmarried heterosexual couples3. The changing stance of society in respect of unmarried heterosexual couples, families in which only one parent is present and families in which both the parents were of the same sex needed a response that would meaningfully attend to the real and parallel problems created by these associations. Although some experts are of the opinion that there has been a transformation of family law into domestic relations law4 it would be unnecessary to modify the rubric recounting this part of the law if the contention that the very concept of what constitutes a family is itself changing5. The adoption of such a broader ethic in no way requires society to curtail the importance that had been attached to the marriage state and what is being emphasized is that there should be a recognition by the law with regard to the requirements and existence of other types of families. Several ad hoc legal developments have taken place in this respect in the past few years6. The courts have conceded the similarities between unmarried heterosexual couples and marriage in respect of property disputes. In Bernard v Josephs7 Lord Denning opined that “In my opinion in ascertaining the respective shares, the court should normally apply the same considerations to couples living together (as if married) as they do to couples who are truly married.” Nevertheless, subsequent to the Denning epoch the courts have withdrawn from this tolerant position notwithstanding the fact that the number of the unmarried cohabitants is on the increase. Whereas they had been prepared to imply resulting and constructive trusts to achieve fairer settlements of disputes, they began to adhere to a stricter application of property law. They would only use their equitable jurisdiction to allow cohabitants to assert rights in the property of their partners where a common intention could be inferred that each party should have an interest in the property. This inconsistency led to the Law Commissions current review of the property rights of cohabitants8. The fact that cohabitants with no right as a matter of property law to occupy the family home would be able to obtain occupation orders excluding their partners in whom the legal right to occupy vested, motivated the debate which resulted in the withdrawal of the 1995 Bill. That this was already a possibility under the same exceptional or domestic violence context under section 1(1)(c) DVMPA 1976 as had been confirmed some fifteen years earlier in the leading case of Davis v Johnson9 did nothing to prevent those opposing the Bill from claiming that this amounted to a new and unacceptable assault on marriage and property rights10. Notwithstanding this, Part III of the 1996 Bill has retained the majority of these reforms completely intact, whilst attempting to satisfy its conservative critics by focusing the courts attention when deciding whether to make an occupation order on the fact that the parties have not shown the same commitment as married couples11. While the bill treats heterosexual cohabitants on an almost equal footing with spouses, it distinguishes them from homosexual cohabitants who are only able to apply for an occupation order if they can show their own legal entitlement to occupy the property12. There is no provision for registered partnerships. Some public thinking has however resulted in steps being taken in this direction. In 2001 the Greater London Authority introduced measures allowing persons to register same-sex partnerships. Although such registration will have no legal effect, the hope was that it would be recognized by public bodies and be used in disputes over wills, property and succession rights13. A Private Members’ Civil Partnership Bill has been introduced into the House of Lords. This would allow all cohabiting couples to have the same legal rights and obligations as married couples. It is unlikely that this Bill will be enacted as it is not being supported by the Government. Unmarried couples are free to enter into any contract which will be enforceable provided the courts are satisfied there is an intention to create legal relations. For instance, they may enter into a contract to permit continued occupation of the family home14. Whether courts would uphold other terms in a cohabitation contract have not been tested. Apparently, such contracts are rare15. Cohabitation does not have any legal right over the property owned by the parties but the normal rules of property law will be applicable to the cohabitants similarly as the married couples. This means that the law overlooked the legal and equitable interests in a home and other property. There are no matrimonial home rights to unmarried couples. Nevertheless, a cohabitant can approach the court for an occupation order where the criterion for consideration is entirely different from that of married people. Specifically the court has to take into cognizance the nature of parties’ relationships16 and the period of their cohabitation17. Moreover, the court will consider the aspect of the absence of commitment among each other18. With regard to occupation order also the cohabitants have been discriminated, because, occupation order will be granted for only six months and then will be renewed once in a six-month period19. Unmarried cohabitants cannot avail themselves of the various special provisions in respect of bankruptcy and pension rights that are restricted to married couples. Further, there is no provision for unmarried cohabitants to obtain maintenance from each other. Nonetheless, the most important aspect in which married and unmarried persons differ in the fact that on the termination of the association between unmarried persons the courts are singularly bereft of the capacity to either allocate property or to make financial provisions. In the event of the extinction of an association among either married or unmarried couples, the maintenance of the children of such couples assumes paramount importance. Such problems come under the purview of the Children Act 1989 and the Child Support Act 1991. These acts are applicable to unmarried as well as married parents. 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 for “the purpose of claiming means-tested benefits20.” 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 couples21. When a separation takes place between the members then their property is affected and in such cases the rules that are relevant in ownership of the property are applicable. Moreover, the court’s power is limited to deciding as to which property is owned by whom and it cannot make any attempt at distributing the assets. Further, there is an absence of the rights to maintenance and pension and life insurance cannot be claimed. As far as the surviving member of such a partnership is concerned, since cohabitation does not per se engender property rights recourse has to be made to the normal rules of succession. If one of the partners dies intestate then the surviving cohabitant does not possess the right to automatically claim a portion of the deceased’s estate. Nevertheless, it is permissible for a surviving cohabitant to prefer a claim for family provision. In the event of testate succession, since English law confers total freedom of testation it is possible for individuals to will away either a portion or the entire to a cohabitant. Howbeit, such right is conditioned by the entitlement of a spouse to claim family provision. Analogously, a disinherited surviving cohabitant can claim family provision, though such a person has been deprived of the right to a share of the deceased’s estate. The Inheritance (Provision for Family and Dependants) Act 1975 as amended in 199522 permits a cohabitant to apply for family provision if that person had cohabited with the deceased in a manner akin to that of a husband and wife for a minimum period of two years just prior to the death of one of them23. However, in marked contrast to married couples, an unmarried cohabitant can only obtain financial provision for maintenance that is reasonable under all the circumstances. Moreover, maintenance applications can be preferred by an individual who ‘immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased’24. Further, a partner belonging to the same-sex as the deceased is entitled to apply as per this provision in the event of that person having been maintained by the deceased. In respect of statutory succession to tenancies, “spouses, cohabitants who have lived as husband and wife of the deceased person and members of the tenant’s family are entitled to succeed to statutory and certain other protected tenancies25.” In Fitzpatrick v Sterling Housing Association26 it was decided that a same-sex cohabitant could “succeed as a member of the deceased tenant’s family27.” In Burns v Burns28 an unmarried couple commenced to live together, in the year 1961. The next year they had a child. In 1963, they shifted their residence to a house which had been purchased in the name of Mr Burns and in that a second child was born to them. Although, Mrs. Burns took on her partner’s name and they introduced themselves as a married couple to their circle of friends and acquaintances, they did not marry. At the time when the children were young, Mrs. Burns was chiefly accountable for routine rearing and she assumed all the domestic duties of their home. With the children getting older, Mrs. Burns obtained training to perform as an instructor in flower arrangement after that she obtained training to become a driving instructor. By the year 1975, she was earning a significant amount of money. At this point of time their relationship was destroyed and this led to their separation in the year 1980. Mr. and Mrs. Burns had been together in this fashion for a period of nine teen years and they had reared two children. Nevertheless, a claim preferred by Mrs. Burns subsequent to their separation made her discover that legally her position was very weak and that the only claim she could make was that in respect of the house. The reality was that this property as a matter of law was the property of Mr. Burns who was the legal owner. Mrs. Burns’ contention that she was entitled to a share in the house under an “implied trust” that is, she claimed that she was entitled to a share of the value of the property even though she did not have her name on the deeds. She further asserted that the her contributions to the home by way of domestic work and rearing their children had to be quantified and that this should be displayed by allotting her a share in the ownership of the house. The Court of Appeal did not countenance her argument. It was of the opinion that if a house had been acquired in such a manner that only one party was named as the owner then the only thing which would result in a share was monetary contribution in respect of the purchase price, like payment in respect of deposit or mortgage installments. In this context the Lord Justice May opined that “over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union”. Howbeit, this did not accord Mrs. Burns with a share of the house. Despite the lapse of quite some years, there has been no significant change to the law “and it is likely that if Mrs. Burns’ case were heard today, the result would be exactly the same as it was in 198429.” In Thomas v. Fuller – Brown it was held at the court of appeal that despite the fact that a man had lived with the female owner of a house, he could not acquire an interest in that house even though he had made quite substantial improvements to it. Further, it held that such acts had in no say assisted in the acquisition of the property30. However, in Midland Bank v Cooke the court of appeal held that Mrs. Cooke was entitled to receive half of the matrimonial home despite the fact that she had not made any direct contribution to the purchase price of the house and further, there had been no explicit and meaningful dialogue31. Under current law, subsequent to the collapse of a marriage the court is empowered to make pension adjustment orders. Moreover, the Commission is of the view that these provisions are not to be replicated when the relation of cohabitation breaks down. The Commission had reached this conclusion owing to the fact that first, since the Commission considered cohabitation and marriage to be different the provisions relating to the ancillary relief provisions relating to pensions are too deep a right to accord to qualified “property adjustment orders in exceptional cases where it considers it just and equitable to do so. The Commission is of the view that this provides qualified cohabitees with adequate relief at the end of the relationship32.” It is an onerous task to consider the legal treatment of cohabitants as it involves important questions of social policy and engenders strong responses. Its complexity can be attributed to the laws and social impact. The larger questions in respect of social policy are dealt with in Parliament. The Law Commission as a reform body functions at its very best when it is made to establish technical deficiencies in the law and to recommend the procedure to be adopted in order to ensure that reform takes place33. Bibliography 1. Bernard v Josephs (1982) 3 All ER 162 at 163. 2. Burns v Burns (1984) Ch 317. 3. Clarkson, Chris. Hill, Jonathan. Thomson, Mark, 2001, Study on Matrimonial Property Regimes and the Property of Unmarried Couples in private International Law and International Law. National Report: United Kingdom, England. Retrieved January 13, 2007 from http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc/regimes/england_report_en.pdf 4. Cohabitation: The Financial Consequences of Relationship Breakdown. The Law Commission. Consultation Paper No 179. October 12, 2006. retrieved from http://www.lawcom.gov.uk/cohabitation.htm 5. Consultation Paper on the Rights and Duties of Cohabitees. The Law Reform Commission. 2004. ISSN; 13933140. 6. Craig Lind and Anne Barlow. 1996. Family Redefinition under Part III of the Family Law Bill 1996. retrieved January 13, 2007 from http://webjcli.ncl.ac.uk/1996/issue2/lind2.html 7. Davis v Johnson (1979) AC 264. 8. Douglas, An Introduction to Family Law (2001, Oxford: Oxford University Press). 9. Family formation and dissolution: Trends and attitudes among the Scottish population, 2004. Retrieved January 13, 2007 from http://www.scotland.gov.uk/Publications/2004/03/19144/35014 10. Family Law Act 1996. 11. Fitzpatrick v Sterling Housing Association (1994) 4 All ER 705. 12. Thomas v. Fuller-Brown (1988) 1 FLR 237. (1988) Fam Law 53. 13. Harpum, C (1995) Cohabitation Consultation Family Law 657. 14. Jane Lewis, with Jessica Datta and Sophie Sarre, School of Sociology and Social Policy, University of Nottingham, 1999. Individualism And Commitment In Marriage And Cohabitation. Retrieved January 13, 2007 from http://www.dca.gov.uk/research/1999/899esfr.htm 15. Law Reform (Succession) Act 1995. 16. Midland Bank v Cooke (1995) 4 All ER 562, (1995) 2 FLR 915. 17. Social Security Administration Act 1992. 18. Tanner v Tanner [1975] 1 WLR 1346 19. The Law Commission, Consultation Paper No 179 (Overview). Cohabitation: The Financial Consequences of Relationship Breakdown. Retrieved January 13, 2007 from http://www.lawcom.gov.uk/docs/cp179.pdf 20. Wadlington, W (1994) Cases and Materials on Domestic Relations (3rd ed) (Westbury, NY: Foundation Press). Read More