Family Law Case Study Example | Topics and Well Written Essays - 1250 words

Family Law - Case Study Example At the outset, Derek needs to realise that cohabiting does not have certain legal rights the way marriage or civil partnerships do. Thus, Saadya death implies that Derek will not just inherit anything automatically, but only those assets the two owned jointly (Herring, 2011, p. 80). S. 2(2) of Law Reform (Succession) Act 1995 allows claims by the surviving cohabiting partner, if the cohabitation has lasted for an uninterrupted period of no less than two years prior to the other cohabitant death. Additionally, cohabitants do not possess rights when it comes to intestacy based on Administration of Estates Act 1925, and as such, when one partner dies and leaving a will behind, then that partner property will pass on, in accord with the stipulations on the will. In this case, the will still remains valid since Sadya and Derek did not enter into a marriage or a civil partnership so as to revoke the will. However, Derek can still apply for consideration in the estate of his deceased cohabitant. Nonetheless, Derek rights are next to nil, as he will not automatically accede to everything. The law states that everything will be executed according to the valid will, and as such, most of Sadya assets will go to her estate and siblings, instead of Derek automatically. Moreover, Derek cannot be able to apply as an overseer of Sadya estate as he is not considered a relative (Probert & Blanpain, 2011, p. 109). Likewise, the surviving cohabiting partner is to a lesser degree well positioned than a marriage spouse, in claiming beneficial interest, when it comes to property which is registered in the sole name of his partner, as reiterated in James v Thomas [2007] EWCA Civ 1212. When it comes to the house, it is considered as typical rule of contract, pas sage, equity and trusts, and does not make a variation between married and unmarried couples, as stated in court cases Pettit v Pettit [1970] AC 777, and that of Gissing v Gissing [1971] AC 886. Accordingly, since the house is under a tenant in common ownership, Derek and Sadya do not have equal rights to that home. That is why the 75% house ownership will pass to Sadya estate as stated in the will (Burton, 2012, p. 198). The fact that Sadya transferred the house into their joint names holding as tenants in common, with Sadya owning 75% and Derek owning 25%, this fulfils the condition of conveyance towards joint names of cohabiting couple, with clear declaration of their individual beneficial interests (Stack v Dowden [2007] 1 FLR 1858). However, given that they have a son, Derek can ask the court based on s.30 of Family Law Act 1996, to transfer the property into his name under occupancy rights. But, the court will allow this only when it observes that, it will be in the best inter ests of Kane. Anything else registered under Sadya sole name, implies that Derek will not claim any beneficial interest in that property. The law is clear that when an unmarried cohabiting partner dies, the other partner will not just simply inherit their partner assets, acquire a portion of their partner finances, or even pension automatically without a will. Therefore, even though Derek has an unlimited access to money in their joint savings accounts, in which both of them contributed money under their joint names, he has no right to access money in Sadya separate bank accounts. Furthermore, the balance in such accounts will be the property of Sadya estate, and which cannot be accessed until the estate is fully settled. Nevertheless, a percentage of the savings will be considered when calculating the value of the estate. Any savings from housekeeping money will belong to the person who provided the money (Burton, 2012, p. 200). When it comes to provisions of occupational plus pers onal pensions for Derek and his son, this will depend on the regulations of Sadya scheme. This is because a cohabitant partner cannot depend upon his or her deceased partner contributions, for the intentions of