Lecture 1 - Introduction to Family Law PDF

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LAW6031 Family Law - Week 1: What is a Family and Family Law? Family Law Law regulating families  formation – creation of legal relationships  rights and duties within families - Families themselves, e.g. rights of children, rights of parents, grandparents etc.  dissolution and its consequences – how we dissolve relationships in family and consequences, e.g. marriage by divorce 

Also including parent responsibilities and how that ceases to operate

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So, we’re interested in how families operate, who families are, who gets to do what in families, what are the duties you owe to one another

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Shares link with criminal law, e.g. in Stone and Dobinson – owing a duty to a child, so demonstrates how criminal law incorporates an element of what families should do for each other as well

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But, in family law we deal with the civil consequences as opposed to the criminal ones

Focus of module: ‘private’ family law  Cf. ‘public’ family law 

There are two elements which we will be focusing on, mainly the private element and what goes in the private domain,

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By the public element we mean, where the state gets involved, e.g. child protection, neglect, adoption, abuse etc.

What is a ‘family’? 

The ideal family often has connotations of a heterosexual white couple, with some kids or even extended families as opposed to single-parent families of different sexuality or colour

Family forms

2) Heterosexual Couple (The ideal family) -

Seen as the ideal type of family

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The mentality adopted from the 1980s has not evolved much, not even in 2019

1) Homosexual couple (lesbian couple) 3)- Mormon Differentfamily family type - - Lesbian couple with two kids

4) Extended family -

The extended family, constituting of uncles, aunties, grandparents (horizontal and vertical extension

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Mixed race

6) Single-parent family

5) Homosexual couple (gay couple) - So, there is a diversity of families but the notion of the ‘ideal family’ derives from media portrayal, adverts, television, movies etc., which we have become accustomed to -

Also comes from upbringing and personal experience, being raised by a different family type than the norm yourself

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However, overtime this notion has changed, and the introduction of different family types is slowly integrating and being shown on the media too, e.g. Asian families, black families, homosexual etc.

Office for National Statistics (2016): ‘Family’ = married, civil partnered or cohabiting couple with or without children, or a lone parent with at least one child who live at the same address. In 2018, there were 19.1 million families in the UK, an increase of 8% from 17.7 million in 2008.

 Married and civil partner couple families were the most common family type in the UK in 2018, representing two-thirds (67.1%) of all families.  Cohabiting couple families were the second-largest family type at 3.4 million (17.9%), followed by 2.9 million (15%) lone parent families. The number of cohabiting couple families continues to grow faster than married couple and lone parent families, with an increase of 25.8% over the decade 2008 to 2018.  The number of same-sex couple families has grown by more than 50% since 2015, with more than four times as many same-sex married couple families in 2018 compared with 2015. 

Definition for family from the government even includes a range of families than the norm

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Since 2018, the number of families has grown

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Cohabiting couples are on the increase, while married couples are on the decrease

 Since 2008, the share of married couple families have declined from 69.1% of all families, while the share of cohabiting couple families has increased from 15.3%. Whereas same-sex married couple families have increased substantially since 2015 and now represent almost a third of all same-sex couple families.  The number of people living alone in 2018 has surpassed 8 million, up from 7.7 million in the previous year, driven by increases in women aged 45 to 64 years and men aged 65 to 74 years.  In 2018, one in four young adults (3.4 million) aged 20 to 34 years were living with their parents.  Of the 2.9 million lone parent families in the UK in 2018, the majority were headed by a female lone parent. 

In terms of heterosexual couples, less of them are getting married and instead, cohabiting while same-sex couples (with the advent of samesex marriage), more of them are getting married instead of cohabiting

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The number of people living alone has also substantially increased, more people are choosing to not be in a relationship

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1 in 4 young adults living with their parents due to higher amounts of debt sustained from being a student, having to pay off loans, a lot more difficult to reach the housing ladder = increase in boomerang generation (students coming back home after university)

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Due to this, we are following the same trend in a lot of continental counties such as Italy and Spain, where they do not move out unless they’re getting married (which is in their early 30s)

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So, a lot of our experiences do not necessarily reflect what is going on in wider society, due to our demographic, but the reality demonstrates that we have transitioned a lot further than we did from the ideal family in the 1950s

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As a result, the law should be reflecting the reality for most of its citizens in the UK as opposed to the ideal family

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In addition to media portrayal, culture and religion has impacted significantly on the conventional idea of family, in particular Christianity and the Church of England (which has moved on steadily)

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Similarly, London is a multicultural city, and the introduction of different cultures has helped shaped this diversity of family types (cultures from the east, more likely to have extended families and be more socially conservative to issues such as homosexuality and taboo around divorce and being a lone parent) in comparison to Western European cultures, where it has become more socially accepting notwithstanding Catholic countries, which still share the same traditional attitudes as well

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For a while, a number of political parties also represented the two opposing views of what the law should do, so on the far right of the political spectrum, the Conservative party would always have a traditional conservative view of what the ideal family was, e.g. in the 1990s, they would often take measures to incentivise/de-incentivise single-parent families, who they believed were responsible for the scourges of society such as teenage truancy and delinquency

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So, a lot of their policies were about trying to encourage the traditional family, giving tax breaks to married couples, penalising single-parent families as they felt as though the family was the ‘bedrock’ of society and should be traditional

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On the left side of the spectrum, Lib Dems argued we should be more reflective of society, so they would try to reverse these measures by

reforming welfare benefits that would previously financially penalise lone-mothers, and providing support 

More recently however, we have seen a shift in the Conservative approach, with them introducing the Civil Partnerships Act, and Same Sex Marriage Act, so the Tories have realised that a lot of their electorate are same-sex, different backgrounds etc. so it would be unfair and discriminatory to keep implanting the old policies, also the passage of Human Rights has been instrumental in these developments

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The government therefore has a huge role to play in terms of upholding that balance as to what the law should aim to do (reflect the norm or the reality)

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Catherine O'Donovan (previous lecturer)’s analysis of the ideal family was that it becomes a totem, and is put on a pedestal, so those who are not considered to fit into this ideal because of their cultural/ethnic/sexual differences, feel unequal, underrepresented = making this notion destructive

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So, Catherine seeks to expose this idea, by saying the ideal family is not something we should worship, as the reality is, society will never be able to attain it, because all it does is create a sense of exclusivity of a certain type of family form which isn’t representative any longer = critical feminist ideology, who looked at the role of women in the private arena (domestic violence and child abuse legislation had not been introduced until the 1970s thanks to the feminist contribution who looked at the role of women in the family structure and said that these ‘private’ matters should not seek to escape from the regulation of the state)

Family functions  Intimacy and emotional support  Economic support  Produce, nurture and socialise children o conjugal/sexual adult relationship - debate as to whether there should be a conjugal/sexual relationship within the family o biological children  Caregiving o Dependents – children and elderly relatives o mutual care and support o Gay/lesbian families vs heterosexual families?

Family ideology  Ideology of the liberal, nuclear family – (mum and dad, 2-3 kids) 

Following the industrial revolution and WW2, there was a breakdown of the extended family to the nuclear one in the UK (moving away from home to find jobs etc) o construction of ‘normality’ (?) – what is considered normal? o zone of privacy in the home vs the public world (?) – is it a zone of privacy and comfort vs the public world? o a safe space for care and nurture (?)- is this really the case? o meets ‘natural’ physical and emotional needs (?) o premised on gender difference – is it equal within the family, do men and women do the same things?

Family relationships Egalitarian or unequal?  Engels: “The modern individual family is founded on the open or concealed domestic slavery of women”  Domestic abuse - it was only until the 1970s and 1980s, where the government recognised this as introduced legislation  Susan Moller Okin, Justice, Gender and the Family (1989) – 

Author of this book, which was a critique of modern theories of justice, she argued that the foundational assumption of a lot of legal/social theory is incorrect because of their perception of gender/family relations

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As a result, they fail to take into account, what the role of gender is actually playing. Hence, many of these theories (who are men), take the male perspective which wrongly assumes that the whole institution of family is just and working really well

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In response, feminist theorists argue that this is wrong, and that gender roles need to be examined, so Susan Moller raises this issue that gender inequalities have to be addressed in modern day families if it is to mean anything at all

o Engels was a Marxist, they view society as a pyramid, with the proletariat at the bottom and bourgeoisie at the top (capitalist who own everything, the means of production etc while everyone else only own their own labour) o Similarly, in relation to the family, they see the men as the head of the household as he is the breadwinner, the women and children enable him to work for the capitalist, so, the function of the women and the children is to keep that family going as well as capitalism = revolution is needed to overthrow the bourgeoisie

Legal definitions of family Diduck & Kaganas

 “In law…a particular form of family is held out as ideal, even while other forms may in some circumstances be deemed ‘good enough’. More and more people and relationships are being let in to the family ‘club’, providing they look like or function like the ideal” (p.14) 

Now we turn to the legal definitions of family

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Conservative’s idea to introduce the Same-Sex Marriage simply allowed gay couples to do what they couldn’t have done in the past

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So, their argument is essentially that we are extending the idea of family as long as they look/act the same as the idea

Case law defining ‘family’ 1. English law: housing law – statutory tenancies inheritable by a ‘spouse’ or ‘family member’ when the tenant dies 2. European Human Rights law: human rights – article 8 ECHR: right to respect for private and ‘family’ life  

We have moved from the discussion of what family mans in literature to the legal definition of family The legal definition of family is important because we live in a welfare state, so although there is no statutory definition of family, case law has contributed in our legal understanding of what family is, predominantly in areas of housing law, statutory tenancies and in EUHR law with respect to Article 8 for human rights

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Housing law is of particular importance in relation to the legal definition of family because depending on how restrictive the definition is, it has implications on local authorities, the wider it is, the more the state has to pay to provide for that family type

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Thus, it is in the state’s interest to narrow the definition of family as it has resource implications for them to do that

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Often, we will come across a contradiction with what the state wants and their obligations to the ECHR, - who are expanding the definition of family, thus forcing individual states to expand their definition in various situations as well

1. English law a) heterosexual cohabitants

Gammans v Eakins [1950] 2 All ER 140   

Plaintiff had lived with a woman (she was the tenant) for over 20 years Regarded in the neighbourhood as husband and wife despite not being married Court held he could not be deemed a member of her family under the Housing Act 1920 and the Judge went on to say that:

‘if their relationship was sexual, it seems anomalous that a person can acquire a status of irremovability from living/having lived in sin, even if the liaison has not been a mere casual encounter, but protracted in time and inclusive in character’ 

This demonstrates a restrictive definition of a family member, basically entailing that they have to be married = Christian definition of living in sin

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Judge also said that membership of family was also limited to 3 relationships, 1 – of children (only children by legitimate marriage), 2 – a married couple and 3 – relations where one person becomes locus parentus to another (formal recognition that someone has to take legal authority over your child)

Dyson Holdings Ltd v Fox [1975] 3 All ER 1030 

Man and woman lived for 40 years

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Woman called Mrs. M (was not married) but everyone assumed they were Home was rented in her name, the tenancy was protected by the Rent Act, which meant that if she was married, her husband would’ve been able to inherit her tenancy After her death, he remained in occupation and the landlords sought possession, he then made a claim The Court of Appeal dismissed the landlord’s claim and said that he was able to take over the protected tenancy as a member of his family

They said that definition should be given by the ordinary man in the street, rather than a narrow meaning based on a legal marriage = demonstrating a shift from the 1950s of the Christian approach of ‘living in sin’ This definition therefore sought to encompass long-standing cohabiting couples Watson v Lucas [1980] I WLR 1493 

A woman living with a man (who although was married to his wife, was living with her)

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She was regarded as a member of his family for the purposes of the Rent Act, due to the long-lasting relationship between them = longevity

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Legislation amended in 1988 to specify that ‘spouse’ includes those who lived together as husband and wife

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Divided in to different sections, firstly we will be looking at how the law has dealt with heterosexual cohabitants over the years

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In Gammans v Eakins, Lord Evershed said that it is not a bad thing if there is a difference in treatment between couples/families that are married and those that are not

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25 years later, family law moved at a very slow pace

Same-sex cohabitants Harrogate Borough Council v Simpson [1986] 2 FLR 91 (CA)

Facts:  Claimant had lived with a deceased-secure tenant in a lesbian relationship for some years  Claimant still lived with her at the date of her death, she sought to defend the application for possession by the local authority on the basis that she was qualified as the spouse of the deceased  The defence failed as the expression ‘living together as husband and wife is not apt to include a homosexual relationship’ the essential characteristic is that there should be a man and a woman (the natural English meaning of the words are gender specific and therefore excluded same-sex relationships) Held:  So, here we see the court’s reluctance to broaden the definition to include same-sex relationships but to cover cohabitants instead

Fitzpatrick v Sterling Housing Association [2001] 1 AC 27    

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Then the HRA 1998 was passed which changed the outcome of this case Claimant lived with the original tenant in a long-standing, homosexual relationship at his flat After the tenant’s death, he sought a statutory tenancy as the ‘spouse’ of the deceased The claim here, to inherit as a spouse failed, but instead the court proposed that he could be included as a member of the family instead, that could include a same-sex partner as long as they can prove that they have been in a long-standing monogamous relationship However, such a person could not be included as a spouse within the meaning of the act, however because the family provision was more widely framed, this allowed the court to take into consideration societal changes

 ‘family member but not ‘spouse’  Lord Slynn: “a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. … a stable, loving and caring relationship which is not intended to be merely temporary and where the couple live together broadly as they would if they were married…” 

Definition of family for the purposes of the Housing Act

 Lord Clyde “… an active sexual relationship between them or at least the potentiality of such a relationship. … the existence of children is not a necessary element.” 

Clyde goes on to expand this definition by adding a ‘sexual relationship’ = some movement here

Ghaidan v Godin-Mendoza [2004] 3 All ER 411 (HL)  distinction between opposite-sex and same-sex cohabitants = breach of ECHR article 14 in conjunction with article 8  read ‘spouse’ in Rent Act to include same-sex cohabitants

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Similar case to before, this time the HRA 1998 (Section 3) was used to re-interpret the statutory provisions of ‘spouse’ in the Rent Act to make them compatible

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Here, his appeal had succeeded, saying that the Fitzpatrick refer to the provision before the 1998 Act, and discriminatory law undermines the rule of law because it is the antifascist of fairness, it brings the law into disrepute and breeds resentment and fosters an inequality of outlook which is demeaning, alight to those unfairly benefitted and prejudiced

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The Court went on to...