Family law Essay

Ruth faces two basic problems on the breakdown of her cohabitating relationship with Steven. How is she to manage financially when Steven has been voluntarily maintaining her and Tania? There is no statutory compulsion for him to continue to do so as there would be if she were a wife or if Tania were his natural child. Secondly, where are she and Tania to live given that the tenancy is in Steven's sole name? Again, because she is a cohabitee rather than a wife and also because Tania is not Steven's natural child there is no statutory compulsion for him to transfer the tenancy to her.

Both of these issues will be addressed in more detail below. Maintenance for children is now dealt with by the Child Support Agency rather than the Court. The amount the 'absent parent' must pay is determined by a rather complex formula based upon both the parties incomes and housing costs. Despite the fact that Steven has maintained Tania for almost all of her life, rather than her natural father, there would be no legal responsibility for him to continue to do so.

The CHILD SUPPORT ACT l991 only provides for child support to be sought by the Agency from the biological father, even though, as in this case he has not had anything to do with Tania. Ruth has always been maintained by Steven and so it is likely that she will wish to claim state benefits when she separates from Steven. Should she do so she is compelled to co-operate with the Agency unless she can show that Tania's father was extremely violent which is not apparent from the facts.

In addition with the exception of some 15 all of the Child Support that Tania's father would have to pay, assuming he is working and can be traced, will be offset against Ruth's benefits. Therefore unless she obtains fairly well-paid work that takes her out of the benefit situation she will be hardly any better off even if Tania's father does pay Child Support. It is clearly possible that Steven will wish to have a continuing relationship with Tania and may offer to voluntarily pay some maintenance to Ruth for her but as he is only a step-parent who is not recognised unless the parties were married (1) he cannot be compelled to pay.

The tenancy of the flat is in Steven's sole name, and again due to the fact that Ruth has only a cohabiting relationship, albeit a lengthy one, she does not acquire any rights to the property by virtue of the cohabitation itself BURNS V. BURNS (2). Cohabitees do not have matrimonial homes rights of occupation (3). They must use either Landlord and Tenant Law (as in Ruth's cases) or general property law and Trust to try and establish they have a beneficial interest. The othe way that cohabitees whether in rented or owner occupied property have been allowed to stay is by use of the Contractual or Equitable Licence.

However , these are mainly the product of a sympathetic and creative Lord Denning In TANNER V. TANNER (4) it was held that she should have been allowed an irrevocable contractual licence to occupy the property which the man had provided for her and the parties' twin babies. The 'contract' was found to exist as she had acted to her detriment by giving up a secure tenancy. It is more likely that a continuing right to occupy the property now would be based upon proprietary estoppel GREASLEY V. COOK (5) where the man is effectively prevented from going back on his word to provide accommodation for the female and children, if there are any..

In both cases the claimants were found to have acted to their detriment by for example give up a secure tenancy (Tanner) which from the facts Ruth has not. It is likely therefore that she would be found to be a 'bare licensee' that is she has been given permission by Steven, the legal tenant to occupy but has provided no consideration to support a finding of a contractual licence. This is assumed because she has not worked and could not therefore have been paying the rent, or acted to her detriment as in Tanner by giving up a secure tenancy.

However, even bare licensees are entitled to reasonable notice to quit and injunctive relief is available if this is not given, particularly, as in Ruth's case where children are involved. No doubt an injunction would be unnecessary on the facts. It would be helpful for Steven to give Ruth written notice to quit because she can then produce this to the Local Authority who would be bound to treat her as homeless and re-house her because she has a dependant child under 16. If she voluntarily leaves the flat there is a real risk that she could be considered 'intentionally homeless' and refused accommodation.

(6) The only feasible way that Ruth could acquire the tenancy is if Steven agrees to assign it to her. Tenancies granted by Housing Associations and Local Authorities are secure tenancies governed by the HOUSING ACT l996 Under s 131 Ruth could succeed to the tenancy because she has been a member of the tenant's (Steven's) family for more than 12 months. By virtue of this the Housing Association would have to agree to an assignment (s. 134). Steven may not of course wish to assign the tenancy to Ruth even though they are on amicable terms.

Apart from the obvious fact that he would lose his home he would also lose his 'right to buy' which is a valuable asset to secure tenants. He cannot be compelled to assign as a husband could (7) SECTION B Despite the change of government in l997 It remains 'politically correct' to continue to treat wives far more favourably than cohabitees. The current labour government are considering further reform but fear the political backlash whipped up by the conservative press of what they dub a mistresses charter.

Much of the rhetoric on the sanctity of marriage and that it should be preserved at all costs has been formulated by bishops in the House of Lords and aristocratic peers whose opinions can hardly be said to be representative of Society in general. The Family Law Act l996 constitutes major reform of family law but, significantly, the major part on divorce reform has not been enacted because it is unworkable and unrepresentative of the needs of the public in general.

The real need is not to amend very comprehensive legislation for married couples but to provide proper statutory regulation on a similar basis for cohabitees. The Children Act l989 states that its basic premise is the parmountcy principle of the welfare of the child but there are no provisions within it that would positively promote the welfare of Tania in the above case. She is a step-child who has been brought up, no doubt in a loving relationship by Steven and her mother since she was just two years of age.

She does not even know her father but it is he who can obtain parental responsibility. and he who must pay child support. The Child Support Agency has received extensive criticism, women have been left without any support for up to two years because the Agency could not cope with he workload. This kind of backlog was unheard of when maintenance was dealt with by the Magistrates or the County Court. The main reason the Child Support Agency was created was to cut welfare benefits by tracking down non-paying absent fathers but in this and in many other respects it has been a dismal failure.

A return to the Courts would enable them to look at maintenance for all children in all situations and do justice to the case rather than applying a srict legal formula which often produces unfair results purely to biological parents. The CHILD SUPPORT ACT l995 still only applies to biological parents and therefore would not help Ruth to obtain payments from Steven. She may not wish to have any contact with the biological father or may not know of his whereabouts and is therefore impractical.

In a modern Society with a very high level of cohabiting couples and re-married couples the lack of any provision for the step-children of these relationships seems a far cry from the paramountcy of the welfare of the child enshrined in the CHILDREN ACT l989. Steven could obtain a Contact Order under S. 8 of that Act which does recognise the needs of children to maintain contact with other close family other than biological parents. Children of the family are recognised in the Matrimonial Causes Act and can be also be awarded maintenance.

Why can't step-children of a cohabiting couple be awarded maintenance? The current law deprives children of their right to happiness with the only parent they have ever known if they are unfortunate enough to be step-children involved in a cohabiting relationship. The law, as it relates to children particularly, ought to be streamlined so that it does not discriminate against them when they come from a cohabiting relationship. There is no moral or logical reason why Steven should not be ordered to continue to maintain Tania as he has clearly been happy to do.

Step-parents in Steven's situation ought to have their legal responsibilities toward that child elevated to encourage them to wish to have a continuing role in that child's life. The rewards to our many step-children on the breakdown of relationships would clearly be immense. The same kinds of discrimination are apparent in relation to housing issues which again can adversely affect a child if they have to leave home. Had Tania been Steven's biological child he could have been ordered the transfer the tenancy for her benefit under the CHILDREN ACT l989.