Cohabitation law reform PDF

Preview

Summary

lecture notes and reading...

Description

Cohabitation law reform 1. Second largest family type- 3.3 million and growing. 2/3 of over 2000 believed in common law marriage. Growth and popularity coupled with misconceptions indicate need of reform. 2. Divorce has many routes option for a married couple s 23 MCA 1973 - court’s wide discretion, with first consideration going to children. S 25 (1). Cohabitation not different in way family operates and the intention behind such a relationship- why is their position so different. Stringent financial provisions to get an interest. And if you want to change ‘will be very unusual’. Confused, unclear, law of property and family mixed. 3. Cohabitees are encouraged to act in a legally rational way- complete opposite to married couples. They need to write, wills, allocate and decide. Nature of relationship this is difficult- Anne Barlow and Janet Smithson: if this is why the law for married couples operates with assumption that spouse/cp gets portion of estate on death. Financial relief for weaker party- all because intimate nature of relationship, legal rationality is hard, why not for cohabitation? -even if parties do want to contract the way breakdown of marriage-legal rationality, still requirements- Radmacher 4. Vulnerability of children. Approx. 30% of children born to cohabitees- aside from adults, they are left vulnerable too. Children in s 25 (1) to get first considerationwhat difference is there here. 5. Smart and Stevens: study of C breakdown- spectrum of commitment within cohabitation- contingently committed couples= very fragile and easily distinguished from stable marriages. Jane Lewis’s study: mutually committed couples whose behaviour mirrored most commonly identified as married Anne Barlow and Janet Smithson’s range of cohabitation relationships- Ideologues, romantics, uneven and pragmatists. Protection for uneven couples most needed- most vulnerable- one totally committed other as long as suits them. Skewed in favour of more financially stronger. Financially/economically commitment different- law role to protect and have failed this. 6. Lack of commitment is not a reason to not protect cohabitees, it is more of a reasonmore vulnerable and more susceptible to harm- children in this scenario! 7. Ideologues- don’t like notion of ‘marriage’ and connotations that come with itdoesn’t mean don’t operate like a married couple with same interests for children and same intimate lifestyle. Romantics see marriage as ultimate step and want to be perfect before then- often have children before hand- left vulnerable up until the point of marriage which may not come. 8. Reform ideas: should take into account all diff types/needs/adopt pluralistic approach and balance with autonomy 9. Ideas from the Netherlands- CP for heterosexual couples help ideologues- we are taking steps to get this. French Pacte Civile de Solidarite- fewer rights than marriage but state endorsed. 10. Barlow and Smithson believe presumptive scheme giving cohabitants and children automatic rights- can opt out. Opt in scheme too- flexibility of terms- to help

romantics and ideologues not to put something against their belief system. Uneven and pragmatists- wider range of choice better for them! 11. Law commission recommendation for reform 2007, cohabitation bill 2016/17-Not to be same as married as haven’t made same commitment have lived between 2-5 years or have child- apply for financial relief -discretionary factors like s 25 -lump sum, transfer of prop if appropriate -have opt in/out for legal protection -consider whether c made qualifying contributions to their relationship or family welfare Lord Browne Wilkinson: Barclays Bank v O’Brien: now that unmarried cohabitation whether hetero or homo is widespread in society the law should recognise this -reform to focus on discretionary awards- more in line with family law flexible...