Despite the Family Law Act l996 the distinction remains you only get matrimonial home rights if you are married. Ruth could have made an application under PART IV FAMILY LAW ACT l996 for an occupation order in relation to the flat but this would not enable her to have the tenancy transferred to her merely the right to remain for up to 6 months which given the amicable nature of the relationship with Steven she could probably do anyway. (8) Public ignorance as to their rights and the legal lack of rights are serious issues which the government should take seriously.
If they did they could dispense with much suffering and genuinely promote a more caring society that placed the emphasis on loving happy homes for children rather than the sanctity of what is rapidly becoming an outmoded legal and religious ceremony. There is, perhaps a quite natural assumption that as a common law wife and mother you cannot just be turned out when your cohabitee tires of having you in his property CONCUBINES AND COHABITEES: A COMPARATIVE LOOK AT "LIVING TOGETHER" BY PHILIP GIRARD
In this article the author suggests that Quebec courts may be forced to borrow unthinkingly from the common law when attempting to distibute assets between cohabitees leading to confusion and doctrinal obscurity. Clearly from the above example (BURNS) our courts are not going to countenance this idea. In many jurisdictions there is clearly the problem of how to resolve cohabitee disputes without blessing the relationship thus putting on the same level as marriage. The policy behind wishing to preserve the sanctity of marriage can be understood, up to a point.
It clearly provides a stable home for children and the parties will obviously think twice before just giving up which cohabitees might be more inclined to do. Perhaps the best solution would be to enact a comprehensive Act dealing with disputes between cohabitees as to asset sharing, occupational rights and children of the relationship including of course step-children. If it is still perceived to be necessary to draw some distinction from marriage then the extent of those rights could be reduced for example the female's right to continuing maintenance and pension rights.
Clearly the law must now move with the times and provide a proper solution to what is essentially a family situation rather than forcing cohabitees to delve into complex property law or any other enactments to try and resolve their situation. More enlightened jurisdictions regard homosexual relationship as family and given their sexual orientation this is correct. The State should not be about telling people what constitutes a family. PETER TATCHELL – Outrage Queer Intelligence Service – New Rights for Unmarried Partners.
Mr Tatchell suggests the enactment of an Unmarried Partners Act for gay and straight couples. Couples would be free to decide the terms of the agreement and then seek registration. Application could also be made to de-register. He proposes this even for couples who are only in a casual relationship. His suggestions could possibly create more problems than they are meant to solve. English law clearly requires certainty and couples selecting their own rights and not choosing others would clearly create difficulties for judges seeking to fairly ajudicate on any agreement.
This type of system which would not adequately protect the weak and the vulnerable is clearly unworkable and amounts to little more than a cohabitation agreement which couples can use anyway, married or unmarried. Complex common law and equitable rules have been outmoded by the Matrimonial Causes Act in relation to married couples and the time must surely now have arrived when cohabitees get the same fair deal. In BURNS Fox LJ stated: '.. although she had lived with the Defendant for l9 years as man and wife, she had no rights against him, The unfairness of that was not a matter which the court could control.
It was a matter for parliament. ' This is a blunt and up to date judicial statement of the law and effectively confirms that the Law Lords do not intend to do parliament's job for them, but when equity will really prevail for cohabiting couples still seems some way off. FOOTNOTES (1) s 25(3) MATRIMONIAL CAUSES ACT l973 (2) BURNS V. BURNS (1984) FLR 216 (3) FAMILY LAW ACT l996 s. 30. NOTE s. 36 would give Ruth certain rights of occupation but on the facts she is not applying for them. (4) TANNER V. TANNER (1975) 1 WLR 1346
(5) GREASLEY V. COOK (1980) 1 WLR 1306 (6) See Part VII HOUSING ACT l996 for provisions on housing homeless/threatened homeless persons. (7) A Property Adjustment Order may be obtained transferring the tenancy under s 24 MATRIMONIAL CAUSES ACT l973. (8) SCHEDULE 7 FAMILY LAW ACT does propose transferring tenancies to certain cohabitees but has not yet been enacted. (9) SEE THE MYTH OF THE COMMON LAW WIFE AND COHABITANTS BEWARE WHO WILL GET THE HOUSE IF WE SPLIT UP? http://w. w. w. divorce. co. uk/hottopics/articles/cohabitants. htm