Family Law

Sadya is a senior manager and earns a salary of £75,000 a year. She owns her own home, mortgage free. Five years ago she met and fell in love with Derek, when his catering business provided catering for a function at her workplace.
After six months Derek moved into Sadya’s house with her. Three years ago Sadya gave birth to a baby boy, Kane. Derek and Sadya agreed that after Sadya’s maternity leave she would return to work and Derek would stay at home and care for Kane full time. Derek sold his catering business for £50,000. Sadya transferred the house into their joint names holding as tenants in common with Sadya owning 75% and Derek owning 25% as they both agreed that the relationship was a stable and committed one. Derek placed the proceeds of the sale of his business into a savings account in their joint names.
Tragically, Sadya was killed in a road traffic accident last month. Derek thinks Sadya did not leave a will but she leaves substantial assets which are the house, now worth £250,000, shares worth £50,000, a life insurance policy worth £60,000 which she took out when Kane was born and a pension which pays out £300,000 on death.Sadya’s family, who never liked Derek, have produced a validly executed will that Sadya made 10 years ago which leaves everything to her siblings. They also tell Derek that he has no rights in respect of Kane as he and Sadya were not married. Derek wants to know what will happen to the house and Sadya’s assets, he is worried about his financial position and he is concerned about whether Sadya’s family are right about Kane. He is also worried that if something were to happen to him that Kane would have to live with Sadya’s family and he does not want this. He would like his family to care for Kane should anything happen to him

part A
(i) Explain what advice you would give to Derek in respect of the concerns he has
(ii) Discuss how the position would be different if Sadya and Derek had been married.

Part B
In light of the issues discussed in Part A, do you think the law is fair as far as it relates to the treatment of spouses and cohabitants (and their children), where their partner dies? Please note that you are not required to consider or discuss the Inheritance (Provision for Family and Dependants) Act 1975 in Part A or Part B.

This question relates to what happens on the death of a partner and requires you to consider the position of cohabitants and spouses.
You should set out your answer logically. At each stage, you should clearly state any propositions of law you rely on, and cite any relevant case or legislation which is authority for them.
In answering eTMA 01 we would like you to consider the following:
• the question asks you to advise Derek. Have you identified the issues about which he is concerned ?
• in order to answer Part A you need to compare and contrast the position of cohabitants and spouses when one of them dies. Have you done so?
• have you considered the arguments for or against treating cohabitants differently to spouses or civil partners in your answer?
• the question requires you to give a reasoned opinion; have you done so?
• have you made sure that your answer follows the guidelines given earlier in this Assessment Guide?

Demonstrate that you have met the assessment criteria in the following ways:
• Knowledge and understanding
In Part A, identify the principles of law that relate to cohabitants and spouses when a partner dies. Make sure you consider all the relevant issues that the question raises. In Part B, show that you understand the policy arguments for and against the current law relating to cohabitants.
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