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Title Comparative analysis on cohabitation regulation: placing Scotland, South Africa and France on the autonomy/protection continuum A comparative analysis on cohabitation regulation: placing Scotland, South Africa and France on the autonomy/protection continuum
Full text https://hdl.handle.net/1842/42647
Date 2023
Author(s) Vorster, Helga
Contributor(s) Braun, Alexandra
Abstract The purpose of this dissertation is not to propose that cohabitation relationships be placed on an equal footing as marriage. However, I believe that it is necessary to acknowledge that in both relationships there is a chance of vulnerability arising from caring for one another as well as a need to clarify the position after ending a relationship 'predicated on the commitment of sharing'.18 In this regard, it can be concluded that a partner may face adversity in the absence of a right to claim from a deceased partner's intestate estate,19 and/or socio-economic vulnerability without a remedy to claim a property share when the relationship ends through dissolution.20 Intestate succession in particular is a core theme to address the deficiencies in this context, as it unrealistic to assume that 'thinking and executing wills comes to people's minds'21. In limiting the scope of the discussion to financial issues, in itself the autonomy of the parties is respected by only discussing matters which may exacerbate or mitigate the position of the parties ' i.e., where legal intervention at the cost of autonomy is justified. The analysis will be conducted in three parts. In Part One, preliminary issues regarding the subject of cohabitation in general will be addressed. The starting point in considering the autonomy/protection continuum is setting out the two poles and addressing the nuances of choice and the reality of interdependence and labour division in relationships. When it comes to a broad overview of regulatory approaches generally utilised in the cohabitation context, there is often a trade-off that occurs between preferring certainty in the form of a comprehensive legislative framework and taking a broader approach in the interests of flexibility. The French opt-in system of registration with a core in contract law, the South African piecemeal approach with its heavy reliance on judicial discretion and the statutory framework of the FLSA will inform the discussion regarding this trade-off in the cohabitation context. The threshold criteria concerning access to each jurisdiction's cohabitation regime will conclude Part One, as it is necessary to inquire what factors the relevant jurisdiction regards weighing in favour of eligibility. In Part Two, I will consider each jurisdiction's response to relationship termination through the lens of the continuum. In the first instance, the discussion regarding financial remedies upon the dissolution of the relationship will be informed by sections 26 to 28 of the FLSA; South Africa's use of universal partnerships; and the relevant provisions of the French Code Civil. In the second instance, the topic of intestate succession will be addressed with reference to the discretionary approach followed in section 29 of the FLSA; the piecemeal recognition by the Constitutional Court in terms of the Intestate Succession Act22 and the Maintenance of Surviving Spouses Act23 and the limited approach in France. It should be noted that in each jurisdiction,24 the financial remedy of unjustified enrichment is available to either party. However, given the complexity of the remedy25 and its inability to recognise non-financial domestic contributions,26 it will not be discussed for purposes of this dissertation. In the last instance, Part Three will serve as a platform for determining where the jurisdictions lie on the continuum. Additionally, it will be considered whether each approach is justified in the relevant jurisdiction. This will be done by investigating the characteristics and practical realities of the beneficiaries of each regime and concluding whether each jurisdiction's approach adequately meets the needs of such beneficiaries.
Subject(s) Cohabitation Regulation; Scotland; South Africa; France; Autonomy/Protection Continuum
Language en
Publisher The University of Edinburgh
Type of publication Thesis or Dissertation; Masters; LLM Master of Laws
Format application/pdf
Repository Edinburgh - University of Edinburgh
Added to C-A: 2024-11-18;08:42:12