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FAMILY: MARRIAGE ETC > LEGAL POSITION SPOUSES V COHABITANTS > Flashcards

LEGAL POSITION SPOUSES V COHABITANTS Flashcards

1
Q

What are the 5 main areas of difference in law between spouses and unmarried cohabitants?

A

1) Formalities at start/end of relationships
2) Financial support
3) Children
4) Inheritance/Succession
5) Criminal Law

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2
Q

Are there formalities at the start/end of unmarried relationships?

A

No, nor do they have to be registered publically

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3
Q

Are there any restrictions on who may/may not enter into a cohabiting relationship?

A

No

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4
Q

Why is the practical importance of having formalities at start/end of marriage relationship easy to overestimate?

A
  • > They are easy to comply with

- > Non-legal elements in breakdown of relationships take up more time/money/effort

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5
Q

Examples of non-legal elements of marriage breakdown being more important/time consuming

A
  • > Splitting up joint bank accounts
  • > Changing living arrangements
  • > Dealing with any court orders surrounding children
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6
Q

Can unmarried couples seek maintenance payments from one another?

A

NO

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7
Q

Why is the inability to seek maintenance if unmarried not that significant?

A
  • > Most divorcing couples don’t anyway, as it is a difficult process and rewards are often low
  • > Only really used in divorce cases where there is £££
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8
Q

Does the court have the power to redistribute property in unmarried relationship breakdown?

A

NO

-> This is far more significant than being able to seek maintenance payments

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9
Q

What can the court do in relation to property of unmarried couples?

A

Decide who owns what, cannot order redistribution

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10
Q

3 significant factors of difference in dealing with property of un/married couples

A

1) Often CA 1989 and CHILD SUPPORT ACT 1991 cover any child maintenance, applies equally to both
2) Once children dealt with, often isn’t enough money left for any other maintenance - less than 50% of divorce proceedings deal with financial resources of parties (BARTON 2000)
3) Courts often apply equitable doctrines (trusts etc) to unmarried couples’ property – wide discretion and result is often same as if couple had been married

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11
Q

Which academic pointed out that after child provisions less than 50% of divorces involve parties’ finances?

A

Barton (2000)

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12
Q

How else can cohabiting unmarried couples regulate property on separation?

A

They can enter into binding cohabitation contracts, decided themselves, spouses may not

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13
Q

Case that demonstrates how carefully attention is payed to the wording of cohabitation contracts?

A

SUTTON v MISCHON DE REYA 2004

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14
Q

SUTTON v MISCHON DE REYA 2004

A
  • C asked solicitor for draft cohabitation contract detailing a master/slave relationship
  • Wanted contract to confirm his absolute power and that any property would be transferred to him
  • Held: contract only for sexual relations = not legally enforceable, a genuine cohabitation contract would’ve been fine
  • ‘Even a moron in a hurry’ could tell this was entirely to do with sex
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15
Q

What are the two main differences of un/married couples involving children?

A

1) Illegitimacy

2) The position of fathers

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16
Q

Why is illegitimacy no longer important?

A
  • > Previously affected status of children in relation to property and parental rights over the child
  • > Status abolished by FAMILY LAW REFORM ACT 1987 = now of no consequence
17
Q

What status did the FAMILY LAW REFORM ACT 1987 abolish?

A

A child being ‘illegitimate’

18
Q

How does the position of unmarried fathers differ from married ones?

A
  • > Only married fathers automatically get parental responsibility
  • > Unmarried fathers must gain PR in one of 3 ways under s4 CA 1989
19
Q

3 ways unmarried father gains PR under s4 (1) CA 1989

A

a) Name on the birth certificate, only applies if child born after Dec 2003
b) Legal agreement with mother
c) Court order

20
Q

Why is the issue of fathers and parental responsibility not as significant as it seems?

A

1) Courts are very willing to grant PR, as it gives children legal protection
2) In daily life PR is reasonably unimportant, only relevant when major decisions are made concerning child’s health/life

21
Q

What is the difference in inheritance/succession between un/married couples in absence of a will?

A
  • > Spouses and civil partners will automatically inherent some of the estate
  • > Unmarried couples have to apply for a court order under INHERITANCE ACT 1975
22
Q

What does the INHERITANCE ACT 1975 say unmarried couples must do in the absence of a will?

A

Apply for a court order to grant them some of their partners estate

23
Q

What are 3 main differences between un/married couples in criminal law?

A

1) Rape - abolished 1991
2) ABH and GBH
3) Theft

24
Q

Before abolition in 1991, what was the justification for not criminalising rape of a spouse?

A
  • > Idea of unity of spouses, they were one in the eyes of the law - impossible to rape your self
  • > My getting married, a spouse has implied irrevocable consent to sex at any given time
25
Q

Case in which the HofL abolished marital exceptions to rape

A

R v R 1991

26
Q

When did Parliament confirm R v R decision and abolish marital exception to rape in statute?

A

CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994

27
Q

What did the CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 do?

A

Abolish marital exceptions to rape

28
Q

How does criminal law on ABH/GBH differ depending on un/married status?

A
  • > Area of confusion within the law

- > Seems that married couples who consent to it are allowed to

29
Q

2 conflicting cases surrounding GBH in un/married couples?

A

R v BROWN 1993

R v WILSON 1996

30
Q

Decision in R v BROWN 1993

A
  • Unmarried consenting homosexual sadomasochists were held guilty of GBH against one another
31
Q

Decision in R v WILSON 1996

A
  • Conviction of GBH for branding his wife with her consent

- Overturned in the CoA

32
Q

Reason for difference between BROWN 1993 and WILSON 1996?

A
  • > Cynical view

- > Argued that it is discrimination against homosexuals vs heterosexual spouses

33
Q

How does theft differ for married couples?

A

Spouse can only be prosecuted for theft if Director of Public Prosecutions consents
s30 THEFT ACT 1969

34
Q

What does s30 THEFT ACT 1969 say?

A

A spouse can only be prosecuted for theft if the Director of Public Prosecutions consents

FAMILY: MARRIAGE ETC (8 decks)

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