Cohabitants Flashcards
Args against protection for cohabitants
Law should not protect them where thy ignore the law of marriage (Napoleon) analogy to freeriders (economic delicts)
You should get married if you want the status that marriage has
You can still protect them in a will. If they didn’t consider you in making will, maybe not considered!
Might undermine sanctity of marriage if cohabitation is the same
What kind of approach does the legal practicioners’ report suggest?
Not same level of protection as spouses but middle ground!
Problems with current law under FLSA
Only on intestacy - inadequate protection
Discretionary - award not guaranteed & uncertain
No guidance as to purpose of the award, what you are aiming to do
Public opinion favours fixed share - should have opt out option for those not interested
List leads to box ticking
Why does s29 only operate on intestacy?
Don’t want cohabitants to get more than spouse
If they wanted them to get something, should have put them in will
What do SLC recommend?
Restate as well as intestate estates
Can’t get more than would have had you been a spouse
Factors in s25 only considered in determining whether they are a cohabitants rather than determining payment
Dearth of case law means no certainty as to which factors to be taken into account
Replacement by new statutory scheme
Recommended scheme
1) Recognition as deceased’s cohabitant - parties of same household, sexual relationship, children, appear to be a family, must cohabit immediately before death
2) Fixing percentage - length of cohabitation, interdependence, what cohabitants contributed to their life together
Chebotereva v King’s Ex
Cohabitant was failed asylum seeker. Lived together for 4 years before death in 2006. Had to be habitual residence. Clearly cohabitants, but not domiciled in Scotland.
Savage v Purches
Cohabitants for 3 years. Deceased made majority of financial contributions, paid mortgage, bought him dogs. Deceased had good relationship with half-sister, saw her often. But cohabitant tried to paint her in a bad light, judge sensed whiff of avarice. Also already benefitting from pension
Windram v Giopazzi’s Ex
Cohabitants had been together for 27 years, 2 kids. He worked and she ran household. Looked after each other while he was ill. Shared finances
Satchwell v McIntosh
S sought return of money paid to furnish home. She thought they were getting married. Necessary to show that there had been a mutual understanding as to the basis of which sums had been paid
English position
Consider internal relationship
Would person regard them as a couple? (Re Watson)
Not appropriate to apply objective standards, can give more to those with higher standard of living (Negus v Barhouse)
Must have had testamentary capacity when compiled will (Baker v Baker)
New Zealand position
Nothing at the moment but recommended
Args for protection to cohabitants?
No longer fringe activity, number of couples steadily increasing
People won’t even think about these arrangements - too late. Why let all other relationships claim where will is not made but not cohabitants?
Much more socially acceptable for unmarried couples to live together.
Functionally very similar to marriage
