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GAZETTE
DECEMBER 1978
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
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.
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