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The rights of cohabitees- time for a change?

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Introduction

The rights of cohabitees- time for a change? Presently in Ireland legislation1 empowers the court to redistribute the property of a married couple on separation. When assessing redistribution the court is entitled to look at a number of factors including 'any contribution made.... by looking after the home or caring for the family'2. The effect of this legislation is that a spouse who is divorced after 20 years working in the family home and bringing up children will have provision on separation. However if the person in question never got married they will get nothing, unless they have made some financial contribution during the relationship. Whilst equity may alleviate some of the injustices arising when cohabitees separate it will not provide a remedy in all situations where fairness requires one. The purpose of this essay is to show that legislative reform is needed3 with respect to cohabitation and that this would not undermine the institution of marriage. I will look at legislation and proposals for reform in other jurisdictions and then suggest a possible model for Irish reform. Inadequacies of Irish law The equitable doctrine of the resulting trust4 was applied to matrimonial property disputes5 in C v C6. Kenny J held that if a wife has made direct financial contributions to the purchase price of a house or its mortgage repayments, then the husband becomes a trustee for her of a share in the house proportionate to the size of such contributions. A non-owning cohabitee today who has made direct financial contributions to the purchase or mortgage of a house could rely on this case to obtain a beneficial interest in the property on separation. The ambit of the resulting trust was expanded in McC v McC7 when the Supreme Court held that if a wife makes financial contributions to a 'general family fund', in the absence of any express or implied agreement to the contrary, the court will infer a resulting trust in her favour. ...read more.

Middle

The court is entitled to make maintenance orders taking into account factors which include childcare and work in the home, but is not entitled to redistribute property rights. * Scotland The Scottish Law Commission33 has recommended that a cohabitee should be able to apply to court for financial provision based on section 9(1)(b) Family Law (Scotland) Act 1985: that fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of any child of the family. This would include where one party has given up a good pensionable career to look after the children of the relationship. The Commission did not recommend maintenance obligations because there is no obligation of support during cohabitation. The Commission do not think it necessary for the court to redistribute property rights because an award of a capital sum ought to be sufficient to enable justice to be done. They recommend that a qualifying time period is 'not necessary or desirable' because their proposed legislation would be self-limiting in the sense that if cohabitation was short with little commitment there would be fewer qualifying contributions. They suggest claims should be made within one year of the end of cohabitation to discourage stale claims and let the parties know where they stand. * Northern Ireland The Northern Ireland Law Reform Advisory Committee34 recommends in the absence of any agreement to the contrary, the joint residence of 'qualifying cohabitees' acquired after the parties become qualifying cohabitees should be held as joint tenants in equity. If the residence has been acquired by one of the parties before cohabitation they recommend conferring on the court the power to determine the parties' beneficial interests taking into account contributions in money or money's worth, but not to redistribute property rights. The Committee recommends that the parties must have been living together 'effectively as husband and wife'35 in the same household for 2 years within the 3 years preceding the acquisition of the property, or have had a child by the relationship. ...read more.

Conclusion

21 Therefore whilst the Constitutional right to equality may arguably operate between cohabitees and spouses to provide a counterweight to the protection of marriage in 41.3.1, such would not need to be relied upon. 22 E.g. Domestic Violence Act 1996 23 England Law Society, (2002) Cohabitation The case for clear law. Proposals for reform. 24 Denmark: Registered Partnership Act 1989 allows same-sex partnerships to register, on foot of which the marital property regime will apply. 25 New South Wales: Property (Relationships) Act 1984 (formerly De Facto Relationships Act 1984); Northern Territory: De Facto Relationships Act 1991; Australian Capital Territory: Domestic Relationships Act 1994; South Australia: De Facto Relationships Act 1994. 26 s 20 27 s 27 Orders for future maintenance are only available in limited circumstances for 3 years. 28 The 2 year qualification period is also recommended by the British Columbia Law Institute Report on Recognition of Spousal and Family Status Report No. 5 29 Property (Relationships) Act 1976 (with effect from 1st February 2002) 30 s 51(1) 31 Factors are fully specified in ss. 57(3) and 53 32 s 39 33 (1992) Report on Family Law, Scotland Law Commission No 135 Part XVI 34 Northern Ireland Law Reform Advisory Committee Report No. 10 (LRAC No.8, 2000) Matrimonial Property 35 The Law Society similarly proposes a relationship 'analogous to that of husband and wife'. 36 The 1995 Act provides a suitable template for the proposed legislation because it lists the factors the court should take into account including work in the home. s. 16(2) 37 Shatter (1997) Family Law p. 1009 38 2 years is also the preferred period of the Northern Ireland Law Reform Advisory Committee and the Solicitors Family Law Association (2003) 'Civil Partnership must be the first step towards wide-ranging reform for cohabiting couples' www.sfla.org.uk/mediadisplay 39 Owusu 'Unions other than marriage under the Barbados Family Law Act 1981' 1992 Anglo-American Law Review 21 449 40 The Law Society similarly proposes a relationship 'analogous to that of husband and wife'. 41(2002) The English Law Commission, Sharing Homes A Discussion Paper No 278 p 68 Law Reform Competition 1 Julia Kidd ...read more.

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