Lecture 1- Introduction to Family Law PDF

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Lecture 1- Introduction to Family Law What is Family Law? Law relating to family, crucial to all individuals- adults and children. Regulates personal relationships and provides legal framework for establishment of marriage, dissolution of marriage, cohabitation and law relating to domestic violence. State has become less interested in regulating adult relationships, more interested in ensuring protection for children. Children Act 1989 reason for this. Divorce- irretrievable breakdown of a marriage. Child’s welfare at the centre of discussion. When resolving disputes, focus should be on child. Wardship- courts’ inherent jurisdiction eg. Injunction.

How has family law evolved? Beginning: 

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Influence of ecclesiastical/ canon law. Regulated by the Church. Still see aspects of thisnullity. Available if one party has an inability to consummate. Has religious root as marriage was originally viewed as a way to procreate. Christianity widespread- so no issue. Until 1857 law of marriage was part of canon law- could not get legally divorced before this. Although could be finalised through an Act of Parliament- only for very rich people. Marriage law was very vague- so didn’t matter there was no divorce as marriage was legally serious at this point. Matrimonial Causes Act 1857- divorce. Until reformation, no English King would question place of Church. Dispute in 14 th century as to the reach of canon law. However, settled canon law had pervasive jurisdiction over all matters to family.

Canon Law: 

Donovan- marriage a ‘civil death’ for women.

Doctrine of ‘one flesh’- key principle: 

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Genesis ii:21 o Woman was created by man- ‘took one of his ribs’. Husband and were but one person- two souls in one flesh. Practical person was husband. Illegal fiction. Exceptions to this idea- woman would not be executed for her husband’s crimes or made answerable for his debt. o Origins of doctrine can be found in treatment of women, husband would be given superiority over wives. o Historically, woman created for man and ordered to obey. Leviticus: Chapter 18 o Prohibited degrees of relationship- God outlined to Moses. Cannot marry immediate family members- blood relation. o Restrictions on marriage through affinity- relations by marriage. Gospel of St Matthew, Ch 19, v 4 & 5

Lecture 1- Introduction to Family Law o

‘For this cause shall a man leave father and mother and shall cleave to his wife; and they twain shall be one flesh’.

Woman’s status: (Confirmed in 18th century) 

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Blackstone (1765-1769) o ‘The husband and wife are one person in law…..’ o When a woman marries a man she suspends her legal persona and they become one. o Husband master and guardian of his wife and she becomes his chattel o Essentially women were controlled by her husband but also some attraction as they were protected by their husbands as well as being subservient. Sir Matthew Hale (1736) o ‘But the husband cannot be guilty of rape committed by himself upon his lawful wife…. o So wife could be raped as she had agreed to everlasting consent of intercourse o R V R 1991 Matthew Bacon (1832) o ‘The husband hath by law the power and dominium over the wife and may beat her but not in a violent or cruel manner…’ o Judge Buller supported this claim- woman could be beaten with a stick as long as not thicker than the husband’s thumb. Clandestine Marriages Act 1753 o Lord Hardwicke’s Act – tries to put an end to clandestine marriage, makes them illegal. Forms the basis of marriage today- must get married in a public place. Matrimonial Causes Act 1836 o Further reduces church influence on marriage. Start to see introduction of civil marriage- registry office. Matrimonial Causes Act 1857 o Transfer of matrimonial jurisdiction to common law courts, no longer dealt with by ecclesiastical courts. Legislation takes over jurisdiction of marriage.

O’Donovan charts the move from feudalism and patriarchy to market society as a ‘gradual change’. Legal effects of unity in marriage: Children: 

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Re Agar Ellis (1883) father’s right of physical possession of the child could only be lost if the right would lead to the child’s moral or physical harm. o 1660 if father had appointed guardian- guardian would supersede the rights of the mother. Guardianship of Infants Act 1925- neither parent had superior claim to children under courts Guardianship Act 1973: Children Act 1989- statutory declaration as to the equality of mothers and fathers. o Married couple both require parental responsibility. o Non- marital child ‘fillius-nullius’- mother’s responsibility. Better for unmarried women in terms of their children.

Property for married women:

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Any property that a wife had owned before marriage automatically becomes husband’s on marriage- early doctrine of 13th century. Even as a widow, wife could not claim back property if it had already been disposed of. If divorced, wife could not claim back if disposed of in good faith. Real property- only vested in the husband upon the marriage and the husband benefitted from it. Williams & Glyn’s Bank Ltd v Boland [1979] o Lord Denning – upon marriage the couple became one. Husband who was the one for these purposes. Modern times, equity tried to make up for deficiencies of common law but subject to discretion of judge. o Married Women’s Property Act 1882- married women made capable of having, holding and disposing of real property.

Divorce: Historically, inequality between a woman and man- husband could accuse wife of adultery, wife could only petition on grounds of adultery if with his sister, another wife, animal or unduly cruel. Concept of co-respondent introduced so that husband could sue damages from seducer of wife. Rationale for distinction is that wife may foist illegitimate child on husband which may threaten line of succession of property. Financial Provision: Breach of a woman’s financial obligation eg. Intercourse was a bar to support Domestic Violence:  

Until 1975, little discussion of domestic violence. At that point, range of injunctive remedies that could be sought Echoes of dominium finally removed by R v R 1991 which criminalised marital rape.

Modern Families:   

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Cohabit- 1/8 couples unmarried and children born outside of marriage.] Modern families- Civil Partnership Act 2004 has impact on adoption. Prior to 2002, same sex couple could not adopt. Adoption and Children Act 2002 changed this. Gender recognition Act 2004- allows post-operative transsexual to change sex on birth certificate. Important as prior to 2013 same sex marriage act, this allowed historically same sex couples to marry once their gender was recognised. Marriage (Same Sex Couples) Act 2013- allows same sex couples to get married- reduces impact of Gender recognition act. Discrimination that opposite sex marriage cannot have a civil partnership?

Family Law in International Context: 

European Convention on Human Rights 1950 o Article 8 ‘Right to Privacy’ – particularly important in relation to children o Article 12 ‘Right to Marry- important in same sex couples in assisted reproduction treatment.

Lecture 1- Introduction to Family Law 

Human Rights Act 1998

Equality rights under EU law:   

Article 119 (Now Article 141)- slow in recognising legitimacy of same sex couples. Grant v South West Trains [1998]- A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law Equality Act 2010- makes clear you cannot discriminate. Important in context to where you can get married as a same sex couple.

Role of United Nations: 

Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW)useful as UK is a signatory and idea of the UN Convention on Rights of Child as childhood means different things to people in different context.

Current issues in Family Law: 1. Interaction with families- how can the state interact with families?  seven models (Fox Harding, 1996) o Authoritarian Model- prohibits behaviour that steps away from preferred enforced behaviour. o Enforcement of responsibilities in certain areas- state involves itself in issues of child protection but doesn’t prescribe to the names parents give to their children. State can become involved when resolving disputes of surnames. o Manipulation of incentives- tax advantages to reward certain behaviour eg. Money given to working women. o Working within constraining assumptions- no advocacy on behalf of particular model about how a family should run but there are certain presumptions. Less important today- eg. Dad breadwinner, mother house wife. o Substituting for and supporting families- state will only step in when the family fails. o Responding to needs and demands- when the family asks for help. S20 under Children Act- voluntary accommodation order. Threat is so serious that there must be some form of accommodation. o Laissez Faire model- family law is a private matter and not the concern of the state. 2. Privatisation of family law- state less involved in family life  Divorce- easier to receive divorce  BUT child support does require some level of regulation, framework in place.

3. Autonomy  Child support- private arrangement, law will help. Cannot come to agreement- law will become punitive. Trying to encourage people to deal with matters themselves.  Joseph Raz - idea that ‘people should make their own lives’- ties in with individualism. 4.   

Decline in moral judgements Civil partnerships to gay marriage Special procedure in divorce Conduct in divorce- has very little to do with financial provision unless very extreme.

Lecture 1- Introduction to Family Law 

Baroness Deech criticises the reluctance of the law to impose moral judgements in relation to family life as responsibilities and moral judgements are still made in relation to ‘the environment, diet or smoking’.

5. Sending messages through the law  Law on divorce- consequences can be severe even for short marriages. Miller- only married for 3 years but acquired a lot of money on divorce. Sending message to marry carefully.  Law Commission, Report 192: ‘it was important that divorce law should send the right messages… about the seriousness and permanence of the commitment involved’. 6. Solicitors, barristers and family law  Rise of litigotiation- much more emphasis on mediation but in the context of litigationIngleby.  Herring describes the position of the family lawyer as a ‘crucial one’ due to legal aid cutbacks which means fewer people can afford legal advice in family cases. 7. Non-legal responses to family law  Divorce with dignity? - Use of mediation. Become more popular in recent years and remain a current issue.  Thorpe LJ supports that by resolving the dispute outside of the legal arena, there is more prospect of ‘beneficial change’. 8. Rules or discretion  Financial provision: s25 MCA 1973 (become less prominent) through to principles of meeting needs, equality, compensation and autonomy

9. Multiculturalism and religious diversity  Arranged marriages  Forced marriage   

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Absolutism- when in Rome point, live by the laws of the country you live in. Pluralism- balancing act, some cultural issues are permitted where some are prohibited eg. Female genital mutilation, incest, under age marriage. Relativism- there are no moral absolutes, different values may be acceptable for different cultures at different times. Classic rejection of relativism: o R v Derrivere (1969)- ‘There can be no doubt that once in this country, this country’s laws must apply’ per LJ Widgery. Recent times- religion v family law o R (Johns and Johns) v Derby City Council (Equality and Human Rights Commission Intervening) (2011)- Mr Diamond (barrister) said the couple who were refused as foster carers were refused because they did not support homosexuality. LJ Mumberry- no discrimination due to pluralist nature of UK.

Alternative Forms of dispute resolution:

Lecture 1- Introduction to Family Law 

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Mediation- Professional mediator is used to help assist the parties in deciding what should happen in the future o

No right answer to a dispute- autonomy. Parties should be able to make own decision for their family but sometimes parties are unable to agree and mediation is ineffective.

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May help the parties learn to communicate and deal with the emotional issues involving a separation.

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Saves costs. Law Commission said that the average mediation- £550 per case, whereas, £1565 was the average legal bill using lawyers- report 192, 1990.

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On the other hand, mediation agreements are not binding and so, they may not remain in intact. One study shows that only one half of all mediated agreements were intact six months after they were reached- Mantle (2001).

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Some commentators argue that it is impossible for a mediator to be wholly impartial- Wilson 2004.

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Can work against the weaker party who may be pressurised into agreeing to something they do not want due to inexperience in bargaining, lack of education, etc.

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Mediators may not have the necessary expertise surrounding complex tax and financial issues. Could lead to an unfair decision is one party is less informed than the other.

Arbitration- families ask an arbitrator, usually an experienced family lawyer, to resolve their dispute o

Provides privacy

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Slightly cheaper than full court hearing and can operate more quickly but still costly.

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Typically, the parties are bound by the ruling of the arbitrator. However, parties will generally have to obtain a consent order from court to approve the agreement.

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Judicial approval of arbitration- S v S (Financial Remedies: Arbitral Award) [2014]only in the rarest of cases would a court decline to follow an arbitrator’s award. – Autonomy.

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Vulnerable party cannot be pressured into agreeing to something as the arbitrator will determine what the fair outcome is....