Family Law - Case Study Example

?Family Law By Family Law: Cohabitation Part A Question At the outset, Derek needs to realise that cohabiting does not have certain legal rights the way marriage or civil partnerships do. Thus, Saadya death implies that Derek will not just inherit anything automatically, but only those assets the two owned jointly (Herring, 2011, p. 80). S. 2(2) of Law Reform (Succession) Act 1995 allows claims by the surviving cohabiting partner, if the cohabitation has lasted for an uninterrupted period of no less than two years prior to the other cohabitant death. Additionally, cohabitants do not possess rights when it comes to intestacy based on Administration of Estates Act 1925, and as such, when one partner dies and leaving a will behind, then that partner property will pass on, in accord with the stipulations on the will. In this case, the will still remains valid since Sadya and Derek did not enter into a marriage or a civil partnership so as to revoke the will. However, Derek can still apply for consideration in the estate of his deceased cohabitant. Nonetheless, Derek rights are next to nil, as he will not automatically accede to everything. The law states that everything will be executed according to the valid will, and as such, most of Sadya assets will go to her estate and siblings, instead of Derek automatically. Moreover, Derek cannot be able to apply as an overseer of Sadya estate as he is not considered a relative (Probert & Blanpain, 2011, p. 109). Likewise, the surviving cohabiting partner is to a lesser degree well positioned than a marriage spouse, in claiming beneficial interest, when it comes to property which is registered in the sole name of his partner, as reiterated in James v Thomas [2007] EWCA Civ 1212. When it comes to the house, it is considered as typical rule of contract, passage, equity and trusts, and does not make a variation between married and unmarried couples, as stated in court cases Pettit v Pettit [1970] AC 777, and that of Gissing v Gissing [1971] AC 886. Accordingly, since the house is under a tenant in common ownership, Derek and Sadya do not have equal rights to that home. That is why the 75% house ownership will pass to Sadya estate as stated in the will (Burton, 2012, p. 198). The fact that Sadya transferred the house into their joint names holding as tenants in common, with Sadya owning 75% and Derek owning 25%, this fulfils the condition of conveyance towards joint names of cohabiting couple, with clear declaration of their individual beneficial interests (Stack v Dowden [2007] 1 FLR 1858). However, given that they have a son, Derek can ask the court based on s.30 of Family Law Act 1996, to transfer the property into his name under occupancy rights. But, the court will allow this only when it observes that, it will be in the best interests of Kane. Anything else registered under Sadya sole name, implies that Derek will not claim any beneficial interest in that property. The law is clear that when an unmarried cohabiting partner dies, the other partner will not just simply inherit their partner assets, acquire a portion of their partner finances, or even pension automatically without a will. Therefore, even though Derek has an unlimited access to money in their joint savings accounts, in which both of them contributed money under their joint names, he has no right to access money in Sadya separate bank accounts. Furthermore, the balance in such accounts will be the property of Sadya estate, and which cannot be accessed until the estate is fully settled. Nevertheless, a percentage of the savings will be considered when calculating the value of the estate. Any savings from housekeeping money will belong to the person who provided the money (Burton, 2012, p. 200). When it comes to provisions of occupational plus personal pensions for Derek and his son, this will depend on the regulations of Sadya scheme. This is because a cohabitant partner cannot depend upon his or her deceased partner contributions, for the intentions of state retirement pensions unlike married or civil partnership couples can do. However, if it was a benefit that provided benefits to Derek and his son, then Derek has the right to access it, since individuals pensions can be set to cover whomever Sadya wanted during her completion of 'expression of wishes' form (Pension Service, August 2009, p. 50). Based on s. 111 of Adoption & Children Act 2002, Sadya as the mother of Kane had the sole responsibility for registering Kane birth, and if Derek was not present during registration, then his name will not be present on Kane birth certificate. Hence, Derek will not have responsibility for Kane. However, if Sadya and Derek had followed procedures for getting Derek name on Kane birth certificate, then he will have responsibility as a father. Although, the Child Support Act 1991 necessitates every parent of the qualifying children to keep them whether married or unmarried, Derek is considered as an unmarried father, and he is not automatically assumed to be Kane father (Burton, 2012, p. 202). Even so, Derek can obtain legal responsibility, referred to as parental responsibility, through re-registering or otherwise registering the birth of Kane together with the name of Sadya, or through obtaining a court order. However, he is now considered Kane guardian due after Sadya death. But, Kane with or without a will has the legal right to inherit from both his parents and even families of both Sadya and Derek parents. Moreover, every couple, whether married or cohabiting, are dealt with in a similar manner when they are evaluated for entitlement under Child Tax Credit. Hence, Derek income, savings as well as financial needs will be taken into consideration. Question 2 If Derek and Sadya had been married, then his position would be totally different compared to his current predicament. This is because as married couples, the two will be enjoying legal protection under common law marriage. Firstly, Derek will automatically have legal rights to any assets that are under Sadya name. In a marriage, when one spouse dies without leaving a will, intestate succession rules automatically states that a portion of the deceased property go automatically to the surviving spouse, unlike in the cohabiting relationship whereby the deceased assets are not passed automatically. In particular, when the assets were under joint tenancy type of ownership, including savings and possessions made out of their money. However, all properties under tenants in common form of ownership will imply that Derek interest concerning the property will not pass automatically to him. Such property would instead be determined in accordance with the wishes in the will or in accordance with intestacy rules, when there is no will. Notably, Derek will have full rights to stay in the house and get any rewards from its sale. Second, a spouse under a marriage or civil partnership is entitled to inherit the deceased spouse pension rights, depending on pension provider’s rules. This is unlike the cohabiting partner, who is restricted in acquiring the pension. Furthermore, if it was a marriage, Derek will be considered as the sole custodian of their son Kane, and as such, he will have complete legal responsibility for his care (Burton, 2012, p. 25). Part B The law is not fair as far as it relates to the treatment of cohabitants after the death of one of the spouse. This is because unlike their married couples, cohabitants do have fewer rights plus responsibilities. Particularly, cohabitation does not offer broad legal status compared to the marriage. Hence, the surviving cohabitant is only able to make limited claims in the event of death of one of the cohabiting partner. For instance, the surviving partner does not have entitlement under intestacy regulations, and they have to apply for family stipulation, by merit of their cohabiting relationship. Accordingly, the fact that such statutes are selective, they are inappropriate since the parties are judged to have rejected the accessories of marriage because of their decision not to get married (Burton, 2012, p. 200). The law ought to recognise that family functions, rather than the form ought to be acknowledged. As a result, this provision will shun injustices to the surviving cohabitant, especially those who have laboured and contributed to the family unit considerably. The surviving cohabiting partner is insensitively disadvantaged, by having their property rights established through usual laws of trusts. Hence, that is why in most cases, courts are rather more sympathetic to individuals who have lived with their partners for several years prior to death of one of them, compared to those whose cohabitation has been rather short with contribution being minimal as in Churchill v. Roach{2002} EWHC 3230 (ch). On can argue that even though a number of cohabitants are in relationships which can be considered as being akin to those of married couples, the wide variety of cohabiting relationships showing dissimilar levels of commitment, plus interdependence makes it hard to give the cohabitant’s distinctive legal consideration. This clearly shows that the law imposes upon cohabiting couples the rights of marriage, and does seek to remedy the gains, as well as losses, impacting such relationship. For instance, the unmarried partner is not even permitted to register the death of his or her cohabiting partner. Also, the courts have no power to override the property rights of such partners, except through restricted exceptions of general rules of property. In general, the law treats the surviving cohabitants this way, since cohabitation provisions oscillate between non-recognition of cohabitation, and almost equal comparison of cohabitation with marriage. This is despite the reality that both statuses are rather different in most and they are up to the two individual personal choices. List of References Burton, F. (2012). Family Law. Routledge. Herring, J. (2011). Family Law. Longman Publishing. Pension Service. (August 2009). A detailed guide to State Pensions for advisers and others. Probert, R., & Blanpain, R. (2011). Family Law in England and Wales. Kluwer Law International. Read More