Considering the rights of unmarried mothers to legal redress in claiming child support, the relevance of such legal recourse in today’s modern society and hence the importance of recognising these rights.
Over a cup of coffee, a friend related her predicament to me. She was married when she had met another man. Things were not going great in her marriage and her husband was openly having an affair. It was then that she met another man whom she thought was the sweetest man in the world.
Many things were said and amongst others, that he would marry her despite the fact she already had a daughter. The man, according to her was thoughtful, considerate, and very mature; and most importantly he loved her. They took the relationship further and as a result, she gave birth to a daughter and with the assurance of this man, she filed and got a divorce, thinking life would be finally good.
First, it was the excuse of his business not being stable enough for him to settle down. Then his visits became less frequent and questions of when they could register their marriage were met with silence and further excuses. One day, that supposedly sweet man just walked out and changed his phone number.
This friend is now left with two daughters, and without the promised marriage. The man never left her any money and she was forced to take on jobs just to fend for herself and her children. Many a night, she cried to sleep, heartbroken by the unfulfilled promises and disappointed by the fact she was let down by her own judgment.
She spoke to me about what her plans were and I was surprised that she had no intention to seek legal redress against the man.
“I thought I cannot sue him and I thought it was my fault too for being too trusting?”
I was completely taken aback with this statement when she was talking about the idea of getting the man to pay money to support his own daughter.
Marriage is a holy institution which is brought about by love and commitment. But in law, it is also a contract and in every sense, can be equated to a perfectly binding agreement between two consenting adults. If a man proposes to marry a woman, and the woman does an act in reliance of the man’s promise, the man can be said to have breached his promise to marry if he refuses to do so. This legal right of the woman is recognised by the law and Courts have in fact ruled on this issue.
I am mindful about the hotly debated point that a marriage should not be treated like any other commercial agreement and in cases involving married parties; that “promise to marry” being considered as an inducement to commit adultery and hence a whole array of “public policy and morality” issues. In fact sometimes in the seventies, England took the step to abolish cases involving claim for damages for breach of promise to marry through the Law Reform (Miscellaneous Provisions) Act 1970.
The Courts in Malaysia however took a different stance in this issue and in a number of cases, decided that the abolition of actions by the English Judiciary was not applicable here. On the contrary, our Courts took the legislator’s work in the Contracts Act 1950 (Revised 1974) and declared that a breach of promise to marry, is in fact a perfectly enforceable cause of action.
This is however a debatable issue.
We live in modern times. People with their work oriented lifestyles and the changing attitudes towards life, morality, and social acceptance, have begun to mull over issues of marriage. Pre-marital sex and pregnancies among unmarried females have become a norm. Single mothers are also on the rise and the younger generation have also taking the stance that cohabitation is a good way to testing the durability of their relationships. Some have termed this arrangement as “trial marriages.” I am not condemning this mentality lest I am accused of doing so but the faith and trust a partner puts into this living arrangement or lifestyle can be exploited by the more seasoned, and needless to say, predominantly by the males.
Currently, a woman can indeed claim maintenance against the man for the child borne from their relationship pursuant to Married Women and Children (Maintenance) Act 1950 (Revised 1981) but its applicability is somewhat limited.
This to me; is a lacuna or in layman’s terms, a void in the law governing these scenarios. In Malaysia, we still do not have adequate protection and legal avenues for the bona fide or “more trusting and innocent” of the females who have fallen to the sweet words of the men and who have ended up with the short end of the stick (no pun intended).
That is why I feel the laws in this area must also move with the times. Raising a child is an expensive commitment and a very heavy responsibility. A single mother and her legal rights against the recalcitrant “purported husband to be” should never be disadvantaged by the lack of a piece of certificate and should certainly be never shut by their mistake of being too naive. Certainly the man ought to be made accountable for this.
Perhaps the country’s legislators can take this issue to task and adopt if not improvise what I would call “de facto” marriage factor. In certain states in Australia, the law recognises a relationship if partners have lived together on a domestic basis for a qualifying period. This applies to couples who have lived together on a personal basis involving personal care and domestic support which must not be for a fee or reward. England in following the times; has also been very progressive in respect of rights of the unmarried couples.
In such instances, the law puts the spouses’ rights and obligations to provide financial support for the child and mother in such a relationship on equal footing, or substantially similar to one of the lawfully registered marriage. Pursuant to this, the unmarried spouse could make claim for maintenance and damage against the defaulting spouse, regardless of whether they are married or not. Such spouse even has rights to property settlements under certain circumstances.
I do acknowledge there are areas of the laws for example contracts or trusts that do afford the unmarried mother certain rights but the task of proving such right may be an onerous one.
The laws are only useful when it takes into account the needs of modern societies and cultures. As much as we can try to educate and advise the young and naive about the perils of being too trusting or the need to gauge the true intentions of other people, we have to accept the fact that sometimes, love does seem to cloud one’s judgments.
It is hoped that in time to come, there will be sufficient legal recourse to enable unmarried mothers to get back on their feet and start a new chapter of their lives.