The Gazette 1985

GAZETTE

APRIL 1985

"dwelling in which a spouse whose protection is in

issue ordinarily resides or, if that spouse has left the

other spouse, ordinarily resided before so leaving."

Again allowing the extension of "spouse", the

central question resolves itself into what degree of

"protection" must be necessary before a former

non-owning cohabitant can claim a right to

withhold consent to a disposition of property.

Arguably the only "protection" so required is for an

equitable interest arising under a constructive trust,

which, in certain instances, the rules of equity

already safeguard.

(ii) Even if a right to withhold consent to a disposition

of property is permitted a non-owning cohabitant

under limited circumstances, then, by corollary

with section 4 of the 1976 Act, the owning

cohabitant could seek a court order dispensing with

the other's consent where it was being unreasonably

withheld. Demonstrably this would be the case if

such interest as the non-owning cohabitant had

acquired could be otherwise protected, or the non-

owning cohabitant had been the one opting to

decamp.

(iii) Section 5 — as indeed are most of the sections — of

the Family Law Act 1981 is limited in its scope to

parties to an agreement to marry that has been

terminated. In this jurisdiction it appears still to be

the case that engaged couples rarely live together so

that, in the classic situation to which section 5 is

designed to apply there can scarcely ever be, by

definition, a family home.

(iv) Even so, were engaged couples to cohabit it would

still be inconsistent with section 2 of the 1981 Act,

which denies to an agreement to marry any

contractual status, if section 5 of that Act were to

attract all the revolutionary rights inherent in the

Family Home Protection Act 1976. Furthermore,

there is also the danger that such construction

would run foul of Article 41 of the Constitution,

which recognises as pre-eminent, and vouches to

safeguard, the institution of marriage.

Hence, it is submitted that whatever application the

Family Home Protection Act 1976 may have under

section 5 of the Family Law Act 1981 must be limited to

cases involving formerly engaged couples who have lived

together, and where the non-owning party had some

interest in the property requiring protection.

The Succession Act 1965

The consequences of the application of the Succession

Act 1965 need little elaboration. Manifestly the most

relevant sections are those which treat of the surviving

spouse's legal right share (section 111), the surviving

spouse's right of intestate succession (section 67) and the

surviving spouse's right under certain circumstances to

require the deceased spouse's personal representative to

transfer to him or her the principal family residence in

part or total satisfaction of the legal right share (section

56). The arguments against incorporating the Succession

Act are straightforward.

(i) It would be an extraordinary result if the mere fact

of engagement were to attract the reciprocal rights

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