The Gazette 1978

GAZETTE

DECEMBER 1978

accordance with a philosophy of support for family life based on marriage. But the very absence of divorce facilities has contributed to the growing phenomenon of co-habitation outside legal marriage. In many cases the co-habiting partners would, if they were located in a divorce jurisdiction, be married to one another. This situation adds weight to the case for introducing at least protective legislation to prevent abuse and exploitation of dependant co-habitees. If it is true (as is alleged) that the legal regulation of co-habitation will weaken respect for marriage, then indirectly the prohibition on divorce would bear part of the responsibility. Conclusion Of the four possible responses outlined above, the first two are subject to major objections, the third, that of improving the civil law of nullity, is feasible and probably desirable, and appears at the moment to be the only response under active consideration. But the law of annulment, if it is confined to its proper role, can provide a solution in only a very small minority of cases. If an attempt is made to use civil annulment as a remedy for broken marriages (and arguably the Canon law has begun in effect to use it for this purpose), then its role is distorted and it becomes in operation damaging, artificial and unfair. In the absence of facilities for full divorce in this country, the fourth response — the legal regulation of permanent relationships not based on formal marriage — seems the most likely method of securing widespread protection for dependant persons in the invalid re- marriage situation. This discussion has concentrated on the options open to the civil authorities. The private regulation of permanent relationships outside marriage, for instance by means of co-habitation agreements, raises a host of problems which require separate treatment.* •See e.g. S. Poulter, "Cohabitation Contracts and Public Policy" (1974) 124 New L.J. 999. INVESTIGATIONS Full Photographic and Surveillance Equipment available for all assignments.

estic Violence and Matrimonial Proceedings Act, 1976, which makes available in the case of a man and woman living together "as husband and wife" the same protective injunctions as are available to a married couple (See s. 1(2).). A number of other recent English decisions indicate a similar willingness to accept that legal consequences can flow from co-habitation in relation to ownership of family assets and tenancy and occupation rights (see, e.g., Dyson Holdings Ltd. v Fox [1975] 3 All E.R. 1030; Cooke v Head [1972] 2 All E.R. 38; Eves v Eves [1975] 3 All E.R. 768). In this process the legal definition of "family", which in the older cases (e.g. Gammans v Elkins [1950] 2 All E.R. 140) was strictly limited to groupings based on marriage, has undergone modification. Also the Inheritance (Provision for Family and Dependants) Act, 1975, allows any de facto dependant, which might include a co-habitee, the right to apply for provision out of the estate of a deceased person (s. 1(1).) England is by no means in the vanguard in these matters. For some years now in Sweden the policy has been accepted of legislative neutrality towards the forms of co-habitation chosen by men and women, to such an extent that a co-habiting couple can, for example, agree on joint custodyof their children. While Irish legislation has refrained from creating a legal framework for co-habiting partners, it has nonetheless accepted that in limited areas the children of unmarried parents should be given rights broadly similar to those of married parents. This was implicit in the reforms in affiliation procedures which were introduced by amendment into the Family Law Act, 1976, and in the introduction of a social welfare allowance for single mothers broadly similar to the allowance for deserted wives. This process of equalising the rights of illegitimate children still has a considerable distance to run. The principle of equality has not yet been accepted inter alia in succession matters, nor in the rules for the establishment of paternity. The development of the principle of equality in other countries (e.g. New Zealand and the U.S.A. and in the international sphere (see, for example, the European Convention on the Rights of Children Born Out of Wedlock 1975) has already received some publicity in this country. Whatever be the arguments for and against extending rights to cohabitees, there is no oubt, in the present writer's mind, of the need to extend to their children protections equal to those given to the children of married parents. One factor which opposed legislative recognition of relationships based on co-habitation is the Constitution which in Article 41 speaks of marriage as the foundation of the family and pledges the State to guard the institution of marriage with special care and to protect it against attack. The argument is that any legislation which bolsters relationships not based on marriage poses a threat to the institution of marriage and may therefore offend the Constitution. This is an issue that has not been addressed in any detail by the courts. It is recognised that it raises a fundamental problem of social policy, but it is a problem to which the legislature will very soon have to set its mind. It is not within the scope of this article to review in detail the complex issues of policy that surround the legal recognition of 'de facto' relationships. May the writer nevertheless be permitted one comment on the irony of the situation? Divorce was prohibited by Article 41 in

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