Page 460 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

In Canada, cohabitants are referred to as “common law partners.” They are
legally entitled to spousal support, but not property distribution, upon termination of

their relationships, as well as to benefits under federal law, such as social security and
tax benefits. This is really just a half measure, one that was politically feasible.

By contrast, many Australian states have enacted “de facto relationships acts” that give
cohabitants remedies under family law based on status; they are also covered by a wide
range of protections under federal law, such as tax, social security, pensions, workers’

compensation, and immigration. New Zealand also gives generous protections to
cohabitants.

England and Wales approach the United States in their negative treatment of
cohabitants, although even they have offered some protections for quite a while.

Cohabitants may succeed to a leased tenancy and apply for reasonable maintenance
upon the death of a partner. Moreover, the Civil Partnership Act has recently been
opened to opposite-sex cohabitants. It provides that partners be treated as though married

with respect to property and support rights, inheritance tax, social security and pensions,
life insurance, tenancies, parental responsibility, and next-of-kin status in hospitals.
Again, however, it requires registration, which most cohabiting couples won’t do.

Otherwise, they are, for example, required to bring lawsuits based on the equitable
theory of constructive trust to recover property at the end of their relationships, which

is both complicated and expensive. This paucity of remedies flies in the face of opinion
polls that show that cohabitants and others believe cohabitants should be entitled to
the legal rights of married couples — or even believe they already are. 29

Although the models described above offer some indications of what is desirable,

none of them is perfect or readily exportable to other countries. Many are clearly
inadequate in their coverage. Others, as in France and the Netherlands, require
registration, and the vulnerable parties who most need the law’s protection are also

the least likely to register. Moreover, in Sweden, France, and the Netherlands, cohabitants
can count on protection by a comprehensive social welfare system that does not exist

29 In what has been called “the common law myth,” many cohabitants in England believe that they are
entitled to the rights of marriage without doing anything more than cohabiting for some period of time, although

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