Principles of Cohabitation - Essay Example

The consultation paper Cohabitation: The Financial Consequences of Relationship Breakdown, published in May 2006 by the Law Commission, examined whether cohabiting couples were justified in claiming monetary easement and recommended the establishment of better remedies for couples with children, who wished to separate. Some of the remedies suggested were the transfer of property, periodical payments, lump sum payments and pension sharing that the courts had to award on a discretionary basis. Moreover, it scrutinized the entitlement and circumstances under which some cohabitants, without children, were eligible to apply for financial relief1. The contention of this paper was that the principles of need and partnership were incongruous for cohabitant couples. Most of the instances of such couples with children involve limited assets. Therefore, the court had to assess the extent of the economic requirements of the children and then divide the assets. After taking into account the recommendations of various legal luminaries, eminent jurists, sociologists and other experts a final report will be published in the year 2007. Its recommendations are expected to substantially benefit separating cohabitees2. If a divorce ensues, then the court can issue pension adjustment orders. However, the Law Commission opined that this facility should not be extended to a cohabitation relation that breaks down, because it does not accord the same importance to cohabitation that it does to marriage3. It is an onerous task to consider the legal treatment of cohabitants as it involves important questions of social policy. Its complexity can be attributed to the laws and its social impact. The larger problems posed by this phenomenon have been dealt with in Parliament and the Law Commission has restricted its endeavours to the establishment of technical deficiencies in the law and to recommending the procedure to be adopted in order to ensure that reform takes place4. In October 1999, the Law Society made several proposals to the Courts to pass such orders as would ensure payment of capital and maintenance on separation. The Law Commissioner, Charles Harpum, opined that the law in respect of home sharing was biased, ambiguous and irrational. In addition, the Office for National Statistics had disclosed that the number of cohabiting couples was on the increase. The rights of cohabitants are far fewer in comparison to the rights of married couples. Further, it would be incorrect to maintain that this situation is ideal as only married couples should have rights. The United Kingdom lags behind Australia and France, which had passed legislation that had bestowed rights on cohabitants. The hesitancy of the authorities to address this problem is in large measure responsible for the injustices being faced by cohabitants5. A woman involved in a cohabitation relation does not have a spontaneous right to reside in their home with her children. Such a right exists only if the woman had either paid for the property or was a share holder in that property. Moreover, property rights are unaffected by activities like housekeeping and caring for the family, assisting in business or sacrificing one’s career for the sake of the family. On the death of a partner in the cohabitation relation, the survivor does not inherit the property, unless there is a contract to that effect. All said and done mutual safety can be ensured only by drawing up a will6. The Law Commission had put forward several proposals that could bestow on British cohabitants, the same rights that have been made available to married couples and gay couples in civil partnerships. The expectation was that these proposals would permit cohabitants to claim maintenance, lump – sum payments and a share in property and pension. However, these measures would not be as extensive as the divorce laws7. In Bernard v Josephs8 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.” The rights of cohabitant couples are not defended by the law as in the case of married couples. In order to obtain a share in the property it is essential for cohabitant couples to enter into contracts that specify the relevant terms regarding the quantum of the share in respect of fixed and movable assets, which each cohabitant is to receive. A contract that spells out exactly the amount of property to be transferred if the cohabitants are to separate is not only preferable but also advisable. Such contracts are often construed to be Separation Deeds or Cohabitation Contracts and these deeds are generally prepared by solicitors9. In the case of unmarried couples, they are free to enter into any contract which will be enforceable subject to the condition that there is an intention to create legal relations. For example, they may enter into a contract to permit continued occupation of the family home10. The legality of the conditions and other terms in a cohabitation contract had not yet been established or tested and as a matter of fact such contracts are rare11. A Discussion Paper on Sharing Homes was published by the Law Commission in July 2002. This Discussion Paper was the result of a detailed examination of the property rights of individuals who live in a shared residence. A variety of such persons like friends, relatives and married and unmarried couples were examined12. The goal of this Sharing Homes project was to determine and quantify property rights in shared homes in a manner that would simplify operations and make results more definite than what the extant system did. However, this aim proved to be futile and the Commission had to accept that a process dependent on evaluation of the contributions of the cohabiting partners was impossible due to the complexity of the existing domestic circumstances13. One of the recommendations of the Commission was that cohabiting couples should thoroughly examine their legal status; in addition they should make their intentions towards each other crystal clear by having in place relevant written agreements. A considerable amount of difficulty is encountered by cohabitants in entering such agreements due to the lack of understanding by the public. Further, a significant number of cohabiting couples harbour the misapprehension that after the expiry of a certain time period they obtain rights that are akin to what married couples enjoy14. During this process the Law Commission recommended that the law had to enact legislation that would consider extra – marital personal relationships in a manner that was similar to France, Australia and New Zealand15. With the enactment of the new proposals, cohabiting couples will be eligible for monetary benefits like a share in the home in which they had lived together, maintenance allowance, a portion of their partner’s pension if they separate, etc. The existing law was unfavourable towards cohabiting couples whose rights, in comparison to married couples were negligible, even if they had cohabited for a long time and even if children had been born to them as a result of such cohabitation. These recommendations will be applicable only to England and Wales, because Scotland already has such legislation in place16. On the basis of the foregoing discussion it can be concluded that the law that applies to cohabitants is unacceptably complex and gives rise to results that many people would consider to be unfair. Hence, it is essential to implement the recommendations of the Law Commission’s Discussion Paper on Sharing Homes. References 1. Cohabitation: the financial consequences of relationship breakdown: a consultation paper By Great Britain: Law Commission, Great Britain. Contributor Roger Toulson. 2006. The Stationery Office. ISBN: 0117302651. P. 18. 2. Harper, Mark. "Living together legally." The Times. © Copyright Times Newspapers Ltd, 2000. 24 October 2000. 3. Millar, Frank. "New law may extend rights of cohabitants." The Irish Times. © 2006, The Irish Times. 1 June 2006: 12. 4. Sharing Homes: A Discussion Paper (2002) Law Com No 278. 5. Stuart Bridge. Money, Marriage and Cohabitation. Retrieved March 21, 2007 from http://www.lawcom.gov.uk/docs/Cohabitation_FamLaw_082006.pdf 6. The Law Reform Commission. Consultation Paper on the Rights and Duties of Cohabitees. April 2004. The Law Reform Commission. Retrieved 19 March 2007 from http://www.lawreform.ie/files/Cohabitees%20CP%20%20April%202004.pdf 7. The Law Commission Consultation Paper No 179. COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN. 4 May 2006. The Law Commission. Retrieved 19 March 2007 from http://www.lawcom.gov.uk/docs/cp179.pdf 8. "United Kingdom. Legal Rules Regarding Patrimonial Interests, Suggestion and Duties of Couples Living Together But Not Being Married." Retrieved 18 March 2007 from http://www.iaj-uim.org/2006/2-UK.html 9. Vivien Hardy. Cohabitation rights and you. November 7, 2006. BBC NEWS. Retrieved March 24, 2007 from http://news.bbc.co.uk/1/hi/business/6124182.stm List of Cases 1. Bernard v Josephs (1982) 3 All ER 162 at 163. 2. Tanner v Tanner [1975] 1 WLR 1346. Read More