Land Law: Property rules governing the Claims of Cohabitants - Essay Example

Land Law: Property rules governing the Claims of Cohabitants of the Submitted to Word Count 2,506 (excluding bibliography, foot s and first page) 2,736 (excluding foot notes and first page but including bibliography) 1. Introduction Land law regarding property rules that govern the claims of the cohabitants are very complex. According to views of Law commission if government gives all the benefits of the cohabitants without having reasonable definition for it the very purpose of the marriage system will be damaged.1 So the law must be in a position to extend the benefits of the cohabitants under certain conditions. Those conditions should strengthen family and marriage systems. When this happen the litigations regarding the claims of the cohabitants can be minimised. It is the fundamental opinion of the law commission that the benefits for the cohabitants must emanate from the marriage or family system. Some of the respondents in the survey conducted by law commission felt that the law must uphold the Christian principles and moral values. The law commission rejected the proposition that the cohabitants who seek financial benefit due to separation must be registered legally in a separate manner. This means that the benefits due to separation must not be different from the basic principles of the law. If the basic principle is not clear, the above proposition can be introduced. So, according to law commission the definition of the cohabitant and the law regarding the benefits of the cohabitants must be clear and must be according to up lift of the morality in the public life. 2. The Financial Consequences of Relationship Breakdown When we study about the experience of United Kingdom we have to study it from three law commissions’ point of view. The UK has three law commissions for Scotland, England and Wales. The reviews of Law commissions are respectively concerned with systematic development and reform. These developments and reforms include codifications of laws and eliminations of anomalies if any. These changes amount to modernisation of the law. This is regarding the cohabitation within the marriage. The cohabitation outside the marriage has no systematic developments or modernisation. It is difficult to over come the confusions in the law regarding the cohabitation outside the marriage. There is a reason for the above confusion. The laws regarding these things were framed in the period when the marriage system was so strong and the litigations outside the marriage were very rare or none. At the time of framing of the laws divorce rate was low and fertility rates were healthy. Families used to have enough children to replace the decrease in population and those children used to take birth within the purview of the marriage. The situation now is different. The people are marrying late in life. Even the late marriages are resulting in divorces. There are number of cases of the couples living together outside the marriage system.2 According to a survey in Great Britain in 2004, 25 percent of non married men and women of all ages were living together without marriage. These changes in the social system have taken cohabitation from the purview of the marriage to the preferred form of first partnership. Majority of the couples living together outside the marriage may not have children. This does not mean that there are no children who born outside the marriage system. The number of children born outside the marriage depends on the number of couples living outside the marriage. According to the details of the survey in 2004; 42 percent of the births were outside the marriage. Out of these 60 percent of the parents may marry but as a whole 17 percent of the total children taking birth are remaining outside the purview of the marriage. Before going in to the details of rights of the cohabitants and the law required for the children and couples who are outside the marriage, it is important to consider the present law about civil partnership 2.1 Present law regarding the civil partnership There is a fear in the minds of the lawmakers and the respondents that bringing the cohabitation outside the marriage in to the purview of the law may weaken the system of the marriage. This fear might be a cause for the confusion in law regarding the cohabitation outside the marriage system. So, by not taking the sexual relationships between same sex people the cohabitation outside the marriage was taken into consideration by law commissions in England and Wales. This resulted in The Civil Partnership Act 2004 to come into force on 5th December 2005 throughout the United Kingdom. This law is applicable to all areas and regions in UK.3 According to this act couples living outside the marriage must register their names and they will get the recognition as civil partners and their relationship is known as Civil Partnership Act 2004. This registration will give the couple a status in the world irrespective of actually living together. The difference between marriage and civil partnership is that the marriage is between opposite sex only and the civil partnership is extended to same sex partners. The breakdown of this partnership can be made by court and the rules are same as divorce. The consequences of the death of the partner also were same as the marriage. This includes the exemption of inheritance tax for the benefits obtained by death of a partner. If a heterosexual couple living together have a child using a donor sperm, the husband of the mother will be recognised as the father of the child and the same is with her unmarried partner. This is not applicable for the men who are living together and got a child by a surrogate mother. The donor can be a father but his partner cannot be a parent to the child born in the period of partnership. Similar is the case with the females living together. The partner of the mother cannot be a parent born to her by sperm of an outsider. The husband of the mother will be recognised as father. This means that though the act is recognising the partnership between same sex people, it internally gave importance to the marriage regarding the parentage. Therefore the civil partnership law was an act for a class of cohabitants those who are not allowed to marry. The provisions in the act have remedies on death and protection against domestic violence. Even the transfer of social housing tenancy is included in the act. This act allowed the unmarried parents to have same relationship with their children as the married parents. This relationship with children will not demand cohabitation. Regarding intestacy there are no succession rights. A survivor of the partnership registration can claim his/her right on wife’s or husband’s property. If that partner is cohabiting with the intestate person from a minimum period of two years and the cohabitation was established, he/she can claim right on his land/house. Mostly in social housing sector, if the partner/partners are living with the deceased tenant as his wife or husband or civil partner he/she can succeed some residential tenancy. This is under the fatal accidents act 1976. The cohabitants regardless of their marriage and former cohabitants of opposite or same sex can claim right to occupation orders under part IV of the family law act 1996. Law commission’s 1992 report on domestic violence and occupation of the family home resulted in this act. Though this was termed by many as an act that subverts family values, this was made in keeping in view a number of cohabitants that are living outside the marriage system. The courts of England and Wales have a power with the above mentioned act to redistribute the property, capital or income between the cohabiting partners when they part with each other. Before this act the partners used to solve the differences with the help of ordinary principles of contact. Not supporting the wide spread opinion that the consideration cohabitation contracts are contrary to public policy, a chancery division judge stated that there is nothing contrary in that. The public policy in a cohabitation agreement that governs the property relationship between adults intending to cohabit or who are cohabiting for the purposes of enjoying a sexual relationship will come under the purview of this act.4 All the above conditions, according to law commission’s emphasis add up a powerful case for reform. According to the need of the hour intentional decision to opt for a legal commitment for a life time must be taken into count by the administration and law. According to that the following provisions were incorporated in the act. The courts should have power to redistribute the assets of cohabiting couples at the time of separation. These powers can be used for certain cohabitation couples who qualify for those rights according to act. The payments, settlements of property and pension sharing must be with the cohabitants also when they separate. The distribution will be the same, but the principles governing the distribution of the property is different from that of the divorce. In some contexts the separating cohabitants will have more independence that that of divorced ones. In case divorce the court will consider the topics like financial resources, requirements, equality and minor children.5 In white v white (2001) 1 AC 596 the House of Lords declared that the standard against awards should be judged on the basis of equality. The financial contributions will be according to the needs generated during the marriage, which was established in the case of Miller v Miller; Mc Farlane v Mc Farlane (2006) UKHL 24; (2006) 2 WLR 1283 by identifying the rationales. In case of cohabitants the couples need not undertake to care for one another in sickness and in health. They can also reject the idea of remedies available on the basis of equal sharing of assets of partnership. The relationships are not forced in to the moulds of marital partnership. The commission treats all the cohabitants and children under partnership principles. This depends on the contribution made by each partner on household. This gives responsibility to the cohabitant in the case of distribution due to separation. The partners registered under the civil partnership will have to face same legal consequences regarding the public and private law and parental responsibilities. The rights and responsibilities are same as the marriage. The main difference is that they don’t have constitutional protection like that of marriage. 2.2 A context that stresses the need of a law regarding the cohabitation A case regarding Frank and Susan can focus on the reform proposals of the act. Frank got a job at the age of 24. He bought a house with some financial help from his parents. He rented rooms to two of his friends, Susan and Oliver. After some time Oliver moved out. Susan and Frank lived for six years in that house. Frank paid for mortgages and worked hard. Susan reduced her working hours and looked after home and home needs. This was like the understanding in the marriage but no marriage and civil partnership was done or registered. Now Frank wants Susan out of the house and Susan wants compensation that she made for the betterment of the house and their living. Commission’s proposals were made keeping the cases like that of Susan in mind. In good times people will not keep any records. So, the proof of cohabitation must make them entitled for the compensation, which was included in the law. 2.3 Answer for the misconception that the claim for property of the cohabitants is against the institution of marriage In the above example Susan is rightful tenant or partner to live in that house. According to marriage or partnership law there is no proof for her to prove her contributions. A simple common sense is that no partner will allow another one to live with him without any reasonable contribution from him/her. The six years of cohabitation cannot be done if Susan contributed nothing to Frank and his home. She hoped that she can be married to him and she will have the legal right to his house and life. For this cohabitation, she lost her career and income. She spent most of her income on frank and his house believing that she will be his wife. This type of cohabitants can be rescued and can be given right on the property under the new law. Being an epicentre of family law the legal harmonisation in Europe is promoted and the best ways to regulate the changes are a need and necessity for different sex cohabiting couples. 3. Property Law While considering the burdens and risks that are involved in enquiry of purchasing a land, the decisions in cases Ferrishurst Ltd v Wallcite Ltd [1999] 05 EG 161 (CA) Ashburn Anstalt v Arnold [1 89] Ch 1 (CA) Williams & Glyns Bank Plc v Boland[1981] AC 487 (HL) can be considered.6 The courts regarding overriding interests framed the following points. 1. the overriding interests in registered conveyancing is comparable to that of actual, constructive or imputed notice. The court recognised burdens on a purchaser to make enquiries were higher than before. 2. The rights of the person occupying the registered land are distinguished from the fact of the occupation. If the occupying person is a tenant, the right of purchasing the freehold reversion or vendor’s lien, which is unpaid is not considered. 3. For this the court ruled out the need of entire occupation of the land for a deal on small part of occupied land. Court relied on S (70 (1) (g) regarding the occupation. Though the enquiry on part of the purchaser is not ruled out it changed its voice. According to above arguments the rights of the people in actual occupation are protected under s70(1)(g). This insists that the purchaser should make enquiries of occupiers to ascertain the facts about their claims over the property. Here the rights of the occupier are distinguished from the occupation. The purchaser should ask that what rights the occupier claim regarding the property, but the description of the property was widened. The property mentioned in the above sentence is the property that is subject to the entire registered disposition. 7 3. Conclusion The reason for the cohabitation is due to the changes in patterns of intimate relationships outside the family. These relations are recognised by society and diverse family forms are emerging. This contributed to growth of cohabitation. The significance of this cohabitation is different from that of family form but still deserves some recognition. Some regions are witnessing this cohabitation as a majority practice alternative to the marriage and this resulted in number of victims who do not get protection from the law in the context of separation.8In some areas in Ireland the system of cohabitation has taken form of a system analogous to marriage. This is posing a danger to the future family system and life in some European countries mostly in UK and Ireland. As the prevailing practices cannot be undone overnight, the law makers have a responsibility of providing rights for the separating cohabitants and at the same time discouraging the cohabitation with respect to the family life. According to a survey the cohabitation increased by 125 percent between 1996 and 2002.9 The changes and reform in the law are necessary because the present system of the law do not reflect the system of cohabitation and do not provide any right in the distribution of the property. According to the consultation paper; Rights and Duties of cohabitants, any administration seeking the rights and duties of cohabitants must have some objectives that are to be met. The reforms must be done by giving respect and for autonomy of the individuals, the law should protect the vulnerable family members (like Susan). The law regarding the cohabitants must be in such a manner to protect the land and property rights of the vulnerable parties and must encourage the life time partnerships. To achieve the above objectives the broad spectrum of functional characteristics in different contexts and types of cohabitations must be considered. Bibliography The details of the books are given in the following format: Author, year, title, publisher, Place, page number The details of the journals and internet references are given in the following format: Author, year, title, publisher, edition information, type of media, date retrieved, website address If any information in the above format is not available, it is mentioned or a gap is left. 1. John S. Oakland, 1993, A Dictionary of British Institutions: Students Guide  Routlege (UK), Page no 44 2. Sanford N. Katz, John Eekelaar, Mavis, 2001, Maclean, Cross-Currents: Family Law Policy in the United States and England , Oxford University Press, Page no. 648 3. Nijole Vaicaitis Benokraitis, 1996, Marriages and Families: Changes, Choices, and Constraints, Prentice Hall International (UK), page no. 242. 4. The law commission, 2006, Cohabitation: The Financial Consequences of Relationship Breakdown, PUBLIC POLICY UNIT, ,electronic, 21-12-06, http://www.christianconcernforournation.co.uk/Latest/docs/final.doc 5. Brenda Hale of Richmond, 2006, Cohabitation: The United Kingdom experience, Irish Law reform commission, ,electronic, 21-12-06, http://72.14.203.104/search?q=cache:QMP0v5NLGRQJ:www.lawreform.ie/Annual%2520Conference%2520Papers%2520Cohabitants%25202006.pdf+cohabitation+the+financial+consequences+of+relationship+breakdown,+LCCP+179+2006&hl=en&gl=in&ct=clnk&cd=1 6. Anne Barlow, 2004, Regulation of Cohabitation, Changing Family Policies and Social Attitudes: A Discussion of Britain Within Europe, Blackwell-Synergy, ,electronic, 21-12-06, http://www.blackwell-synergy.com/doi/abs/10.1111/j.0265-8240.2004.00163.x?journalCode=lapo 7. Law reform commission, 2006, Report: Rights and duties of cohabitants, The law reform commission, ,electronic, 21-12-06, http://www.lawreform.ie/Cohabitants%20Report%20Dec%201st%202006.pdf 8. Janeen M Carruthers, 2006, Scots Rules of Private International Law Concerning Homosexual Couples, EJCL, Electronic, 21-12-06, http://www.ejcl.org/103/art103-5.doc 9. Simmons and Simmons, 2006, Registered land overriding interests, Legal 500.com, ,electronic, 16-1-07, http://www.legal500.com/devs/uk/cp/ukcp_099.htm Read More