Cohabitation is when two people live together without actually married to each other.
In Malaysia, couples resorting to cohabitation is on the rise in terms of percentage. To cohabitants, the benefits of marriage were simply not enough to counter the potential psychological and financial pain of divorce or other marriage problems.
However, the legal authorities in terms of the rights of cohabitants in Malaysia are scarce, thus we may resort to the persuasive English common law principles in this respect, arguably under Section 5 of the Civil Laws Act 1956.
- Property Rights of Cohabitants
In Malaysia, a cohabitant who is not an owner to a property does not actually have a right to the property in the event of separation. Hence, a cohabitant’s right to a property, such as for occupation, shall only arise as an owner or a licensee.
However, as seen in some English cases, there are some legal tools to be resorted in order to confer cohabitant an interest in the property. Such legal tools includes:
(1) constructive trust where a cohabitant had contributed much in terms of physical labour on the property though not holding legal property right; (2) resulting trust, although holding legal property right, but a cohabitant pays nothing for it; then he/she is implied to have held the property for benefit of another cohabitant;
(3) contractual license is arguable in a situation when the cohabitants have children, though out wedlock; whereas
(4) proprietory estoppel is arguable whenever there is a promise to transfer the property made to induce another into cohabitation.
As contrary to a property owned by a married couple, the court will have the inherent power to order property division based on the needs of the children and whether the assets were acquired jointly or through single effort.
- Financial Provision for Cohabitants
A cohabitant basically has not right in this respect unless through the death of another cohabitant, that is by way of testamentary disposition under a will.
Such right of cohabitant to be provided could perhaps be met under the nominations procedures pursuant to specific laws such as Employee Provident Fund Act 1951 and Financial Services Act 2013 (replaces Insurance Act 1963), which shall not be challenged under any other laws of inheritance.
- Rights of Children to Cohabitant
A child born to cohabitants will be illegitimate simply because they are borne out of wedlock.
However, while both the cohabitants are still alive, the Adoption Act has the effect of legitimised an illegitimate child via adoption by the cohabitants.
The purported issue arose in the event of separation or death. Nevertheless, kudos to Justice Syed Ahmad Idid in Lim Suk Fang (F) v. Lim Kim Heng [1993] 1 LNS 35 who held that a single mother shall have custody of her 2 sons borne out of wedlock premised on the principal that Court shall have “regard the welfare of the infant as the first and paramount consideration” [to use the words of s. 1 of the Guardianship of Infants Act 1925, as extended to illegitimate infant by s. 3(1) of the Legitimacy Act 1959].
About the author:
This article was written by Chia Swee Yik, Partner of this Firm.
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