Property Disputes and Ensuring Equitable Treatment

Question 1

Cohabitants do not have the status as a “common law spouse” and do not have same rights as married couples and civil partners. This has led to some calls for reforms in the law because with the increase in the rate of cohabitation in the UK due to decline in social stigma associated with cohabitation and fear of divorce, there is also a need to reconsider the legal rights of cohabitees. Cohabiting couples do not have a legal status, which puts them at risk with regard to their rights, including rights in shared property and family homes. Indeed, one of the most common disputes among cohabitants upon separation is distribution of property and financial resources and due to lack of legal framework, cohabitees’ interest in the property is assessed on the basis of equitable doctrines of proprietary estoppel, and implied trust. Courts have tried to ascertain the rights of the cohabitees in family home on the basis of these doctrines. For instance, in Stack v Dowden, beneficial ownership was held to presumptively mirror legal ownership to help ascertain the proportion of interest in the property. In Lloyds Bank v Rosset , equity was used to impose a trust. However, as conditions between cohabitees could change, this could also reflect on their share of interest in the property as noted in Jones v Kernott, in which case it was held that couples should be aware that changing living arrangements could lead to readjusting the original shares of the parties, irrespective of what is written in the co-ownership documents. This puts cohabitees at risk when they separate and also shows how cohabitees do not share the same rights as married couples.

Calls for reform in the law is based on the argument that being the dominant family type in the UK, the rights of cohabitees should be protected by the law especially in the context of property rights. One of the efforts in this direction was Lord Lester’s Cohabitation Rights Bill [HL] 2017-19, but this did not materialise. The Law Commission in its report, Cohabitation: the financial consequences of relationship breakdown, has also suggested reforms on the basis that the current trust law is illogical, uncertain and can lead to unfair outcomes. The UK Supreme Court has suggested in Gow v Grant, that English law on cohabitees’ rights may be reformed in line with the Scottish reform which was reformed by Family Law (Scotland) Act 2006, and certain rights of cohabitees were finally recognised. In England and Wales, the rights of cohabitees are protected in piecemeal approach, which is the reason why the Law Commission considers the law to be uncertain and illogical. Thus, in cases where children are involved, the Section 3(1) of Children Act 1989 provides that the parent may apply to court for the parental support the child. The Inheritance (provision for family and dependents) Act 1975 allows cohabitants ‘reasonable financial provision’ under the inheritance provision for family dependents in case of end of relationship due to death of one partner. The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) allows cohabitants to use ss.14 and 15 to receive an equitable portion of the family home upon separation.

Objections to such reforms are based on the argument that extension of rights to cohabitees can affect the sanctity of marriage. This argument is based on religious belief which holds marriage between man and woman to be sacred. Other arguments are made against reform on the basis of feminism; for instance, Baroness Deech states that such reform retards the emancipation of woman and takes away choice. Another argument made against reform is that if the cohabiting couples wish to have similar rights to married couples, then they can get married and have the access to the same rights.

Question 2

In non-emergency medical situations, consent to treatment for a child (under 16 years of age) or young person (between 17 and 18 years of age) must be obtained from the child or young person (if deemed competent to make that decision) , someone with parental; or the Court. Considering that the area of consent of children without parental authority can be difficult to navigate, this brief essay critically discusses whether a correct balance has been struck between protecting children and upholding their rights.

In re C, the test of competency was laid down for giving consent for medical procedure, which is that the person understands the nature, purpose and likely effects of the proposed treatment, comprehend information about the procedure or treatment, and believe it and weigh it with the balancing of risks and needs, before arriving at a choice. With respect to children, the test becomes difficult to apply because children may not have the characteristics of such competency. In Gillick v West Norfolk and Wisbech Area Health Authority, the court first recognised the principle that children of sufficient age, understanding and maturity can make medical decisions without parental interference.

The difficulty with the application of the concept of consent to children is that all children under 16 years of age would not have the same level of maturity and understanding. In terms of balancing the protection of children (in cases where children’s decisions are not in their best interests) and upholding the right of the children to make their decisions, the courts are generally unwilling to find child competent if the decision is not considered to be in the best interests of the child. Thus, where the child under 16 years of age refuses treatment which is in the best interest of the child; in such cases, the parental right to consent can override the refusal of the child as held in Re W (a minor: medical treatment). This is different to how adults would be treated if they refused consent for medical treatment. The difference comes from the best interest principle that is provided in the Children’s Act 1989. Therefore, there is clearly an effort made to distinguish decisions of children even when they are thought to have a level of maturity to make such decisions but are not in the best interest of the children, and decisions that are made in the best interest of the children.

The courts do rely on the Gillick test as recently demonstrated by D (A Child) [2017]. However, it is not in every case that courts will apply the test to allow a child under 16 years of age to give consent or withhold consent for a medical procedure. As Re W (a minor: medical treatment) demonstrates that the court will not allow the child’s decision to withhold treatment if it is going to be contrary to best interests of the child in which case the parental decision can override that of the child. Similarly, parental consent or consent of guardian can be used to even allow consent for a deprivation of the child's liberty for the purpose of medical treatment (Re D (A Child: Deprivation of Liberty) (2015)). This is also in accordance with the best interests principle.

The approach can be seen to balancing the protection of child with the upholding of the child’s rights because while giving the child the right to make decisions if having the competence to make them, the law ensures that the child does not make decisions that can be against their own best interests. The arbiter of this is the court. This is supported in the Code of Practice to the Mental Health Act 1983 which now states that it would be inadvisable for practitioners to rely on the consent of a person with parental responsibility to treat a young capacitated person who has refused the treatment without approaching the court.

Question 3

For a marriage to be valid, the requirements are that both parties should have the capacity to enter into a marriage and it does not breach Section 11 of the MCA 1973. In case of breach of Section 11, the marriage would be considered to be void. Under this provision, marriage is void if it is within prohibited degrees of relationship, under 16 years of age, in breach of certain formalities, bigamous, or polygamous. In this case, none of these grounds apply so the marriage cannot be said to be void.

A marriage can be considered to be a non-marriage if the formation of the marriage flawed to an extent that it cannot even be considered void (El Gamal v Al Maktoum [2011]).

A marriage can be voidable under Section 12 MCA 1973 on grounds of, inter alia, non-consummation (not same sex marriages), lack of consent, and gender recognition as a ground of nullity. The first ground is applicable in this case. Section 12(b) MCA 1973 allows marriage to be voidable non-consummation due to the wilful refusal of one spouse and without just excuse (Horton v Horton [1947]). Lack of consent may be relevant under Section 12(c) MCA 1973. Gender recognition is another ground which may be used to consider the marriage to be voidable as the status of the marriage becomes suspect if the gender reassignment of the partner is not captured in the marriage certificate (P (Transgender Applicant for Declaration of Valid Marriage).

In this case, Janet and Martin had a relationship which culminated into marriage in a registry office ceremony with Martin not being aware that Janet was a man called John who completed full gender reassignment just before meeting Martin. After the wedding, the marriage is not consummated because Janet refuses to have sexual relations with Martin until she is ready for it. This can be used as a ground for annulment of the marriage on the basis that it is voidable under Section 12. An annulment means that the marriage status would be considered to never have existed and Janet and Martin would be treated as never having been married to each other. Take a deeper dive into Family Law with our additional resources.