Lecture Notes FAMILY PDF

Preview

Summary

Introductory LectureWhat is a family? Crucial to self & societyHuang v Home Secretary [2011] UKHL 11 “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend socially, emotionally and often financially. There...

Description

Introductory Lecture What is a family? Crucial to self & society Huang v Home Secretary [2011] UKHL 11 “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives” Family and Childcare Trust (2016) “Strong and stable families, in all their forms, play an import role in our society. Families have a major impact on the life chances of individuals and strong family relationships are recognized as an important component of individual, community and national well-being.” How to identify and define? Stereotype: nuclear family - But is this representative? - 2010: only 24% of households consists of couple with dependent children

Archard (2010): multi- generational group, normally stably co-habiting, whose adults take primary custodial responsibility for dependent children Is this an acceptable definition? Ø Is it important to have a definition? Ø Yes, definition confers some power Ø Instantly recognisable Ø With recognition comes legitimacy and protection Ø Art. 8: Different definitions of Family

2 A) Man on the street definition B) Formalistic definition o Roughly from 1857-late 1960s o Move away from religion to state regulation o Defined by formal legal relationships o Must meet legally set criteria and produce legal evidence o Clear and easy to prove o Clear consequences and remedies C) Functionalistic Definition o More prevalent from mid 20th century o Less concerned with legal form o More concerned with the function of family as an institution o Less concerned with what a family IS o More concerned with what a family DOES o Less concern with identifying a formally legal family, more concerned with understanding family practice But what is family practice? Diduck(2011): forms or expressions of intimate or private living based upon care and interdependence  But largely society’s view of the function of family still reflects the heterosexual traditional ideal  Wide definition is inclusive but difficult to establish proof Is there any alternative? Ø Idealised definition Ø Goal setting Ø Whose ideal Ø Cultural differences Ø Self – definition Ø Non stigmatising Ø May lose meaning Ø Religious implications How does the law define families? Gitten(1993): constant state of flux u Role of the family and of individuals within are changing u But certain stereotypes remain (?) Gamman v. Elkins [1950] 2 KB 328 “to say of two people masquerading as these two were as husband and wife, that they were members of the same family, seems to be an abuse of the English language.”

2

3 Dyson Holdings v Fox [1976] QB 503 “ relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit” Joram Developments v Sharratt [1979] 1 WLR 928 “Two strangers cannot ever establish artificially a familial nexus by acting as brothers of sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such.” Fitzpatrick v. Sterling Housing Association [1999] 3 WLR 1113 Lord Nicholls: “there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women.” Lord Clyde: “ … bond of love and affection, not of a causal or transitory nature, but in a relationship which is permanent or at least intended to be so.” Ghaidan v. Godin – Mendoza [2004] UKHL 30 Baroness Hale: “The traditional family is not protected by granting it a benefit that is denied to people who cannot, or will not, become a traditional family … it is difficult to see how heterosexuals will be encouraged to form and maintain marriage-like relationships by the knowledge that the equivalent benefit is being denied to homosexuals.” Is there benefit in the concept of family? Universal declaration of human rights: family is the fundamental and natural group unit of society Advantages: Ø Emotional security Ø Development of identity Ø Benefit to the state Ø Protect people against the state Drawbacks: Ø Cover for abuse of weal members Ø Oppression against women/children Ø Encourage selfishness What is family law? Probert: family law has tended to ignore the intact family

3

4 Broadly: law governing relationships between parents & child and between adults in close emotional (sexual???) relationships 

Affects and is affected by other areas of law, but such areas not within the general recognised ambit

WHAT APPROACH SHOULD FAMILY LAW TAKE? Functionalist Approach: Where the law has a series of goals to fulfil Eekalaar(1984): protective, adjustive, supportive - Contradictory/subliminal/unrecognised functions? - Overestimate the power of the law to affect people - Who decides the appropriate functions? Formalistic Approach Ø Set out a series of formal definitions Ø Formal processes to achieve or deviate from those definitions Ø Clear and predictable Ø May not be suitable for the infinite variations in individual families and family conduct Feminist Approach o Family law so far used by the state to define and limit people according to status and gender o Reflecting the norms of Western/ European Christian Patriarchy o Paterfamilias authorised by the Bible to control all subordinate members of the household o Laws develop to enable and reinforce that position, eg: primogeniture o Allow power to concentrate in those high on the hierarchy o Women low on the hierarchy o Feminists argue that family law has developed and embody a patriarchal perspective o May be slowly changing SHOULD THERE EVEN BE FAMILY LAW? THE PUBLIC/PRIVATE DIVIDE State Intervention vs. Private Ordering: - How far should the state interfere in private life? - Not all state intervention is coercive - Should the law check or enable such interference? - Bainham: what constitutes the private realm is itself State constituted - Modern family law has tried to shift disputes away from the court

4

5 -

Use ideological language of personal responsibility Low priority Cut in legal aid

The Changing Role of Men: - Seems to have come full circle from the paterfamilias - Increased recognition of rights of the mother/wife - Lead men to feel that family law has strong female bias - Law seems to stress equality: but is it reflected in reality? DIVERSITY u To what extent should family law embrace and reflect diversity? u Diversity in sexual orientation and gender orientation? u Diversity in cultural family practices? Welfare vs. Rights: - Should family law be oriented towards enforcing rights? - Against each other and against the state - What should those rights be? - What if rights conflict? - Should family law be based on welfare? - Seek to achieve the best outcome Rule vs. Discretion: - Should the law be designed upon strict rules? - Make it easy to know and follow - Too rigid? - Allow discretion - May cause uncertainty and dissatisfaction - May cause people to pursue adversarial solutions How to start a family? Ø In most societies, family recognised through people bound by blood ties Ø Through procreation (adoption??) Ø But what about unrelated adults who want to have their relationship recognised as a legal family relationship Ø They would have to satisfy the law that they have met the required legal criteria or processes that entitle recognition as family members Ø Normally through the institution of marriage

5

6

Lecture 1: Marriage and Civil Partnership What is a marriage? Lord Penzance in Hyde v. Hyde (1868): “… as understood in Christendom, may… be defined as the voluntary union for life of one man and one woman to the exclusion of all others” There is no statutory definition of marriage; common law definition in Hyde v. Hyde Is this definition accurate? Ø Consider Poulter (1979): perhaps it has never been an accurate definition Ø So how to identify if two adults are legally married? Ø Easiest way is to look at law governing nullity of marriage – identifies what a marriage is NOT! Ø Marriage plays a central role in families and family law Marriage is the most obvious way for 2 non related adults to enter into a legally binding, legally recognised and protected intimate personal relationship o Confers legal recognition on a relationship o Marriage seems to be the only type of adult personal relationship that is afforded legal recognition and protection * Ø Why not regulate all types of adult personal relationships? Ø Does marriage have a crucial or essential characteristic that distinguishes it from other personal relationships? AG v. Akhter and Khan & Others (2020) COA: “A person’s marital status is important for them and for the state. The status of marriage creates a variety of rights and obligations. It is that status alone, derived

6

7 from a valid ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship” The Act of Marrying - ceremony

The State of Being MarriedRights and Obligations

1. Procreation? 2. Sexual intercourse? 3. Religious undertaking? If each of these “characteristics” can be challenged , then the idea that marriage is special and deserving of individual legal recognition can be challenged as well. Development of Modern Marriage I would now redefine marriage as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.” (Thorpe LJ – dissenting) (Bellinger v. Bellinger, 2000) (EWCA) o o o o o o

So marriage can be conceived as a contract, but of a special kind Specific form different to commercial contracts Specific capacity required to enter in such contract Void or capable of being voided on specific grounds Can only be terminated by death or pronounced by court But has it always been this way?

Historic Evolution of Marriage u Until 1753, marriage in England was privately constituted u Governed by the Church u Church regarded couple as married by way of promises made to each other u “spousals” u Spousal de future, or, spousal de presenti u Such promises could be made privately and without any ceremony The Arnolfini Marriage Jan van Eyck (1434)  Church of Rome changed this in mid 16 th century  But England had broken from the Church of Rome and continued with the practice  Very democratic way of getting married  But problem lies in the way of proof u Claims of marriage could be open to dispute and such dispute would have to be decided in court through evidence and examination u If not satisfactorily proven, couple not regarded by law as being married u Women and children disadvantaged by this Church of England developed rules for ceremony: o Exchange of vows in church

7

8 o Publicizing intent to marry through BANNS o Placing a ring on woman's finger o Limited times to exchange vows o Community recognition o Legal recognition and record But some couples did not want to be married according to the rules! Hogarth (1733)  A Rake’s Progress  Depiction of Clandestine Marriage Fleet Marriage Why Clandestine? Ø Young people who wished to marry without parental consent (under 21) Ø Some could not afford Church rituals Ø Some followed religions other than C of E Ø Some wished to marry in private Ø Women had more freedom of choice and could keep their identity Ø Could be ended without formality Ø Ø Ø Ø Ø

But it allowed couples and especially women some autonomy of choice Allowed women to keep her identity Can sometimes be ended by the parties But the state did not like this WHY?

Marriage as a Form of Social and Economic Engineering Lord Hardwicke (1753) “How often have we known of the heir of a good family seduced, and engaged in a clandestine marriage, perhaps with a common strumpet? What distresses some of our best families have been brought into, what ruin some of their sons and daughters have been involved in, by such means, every gentleman from his own knowledge may reflect.” u State regarded marriage as a way to ensure economic prosperity of the country u Children seen as a source of economic wealth – market society u Prevent people from marrying someone of an unsuitable class u Protect “formal” wife and children u Provide an incentive for men to formally marry – declare null and void all traditional “bargains of cohabitation” u Women will know they cannot rely on the protection of common law or clandestine marriage u Will then restrict sex u Men who want sex will have no choice but to formally marry and take on the responsibilities of marriage

8

9 MARRIAGE ACT 1753 ( or Lord Hardwicke’s act) AN ACT FOR THE BETTER PREVENTING OF CLANDESTINE MARRIAGE o Gave Church of England a monopoly on marriage o Act set down strict rules for marriage and imposed requirement for publicity and record keeping o All legally recognised marriages entered into register o Non conformation to set procedure will render marriage void o Subsequent acts introduced to accommodate other types of Christian marriage and later allowed for civil marriage – Marriage Act 1836 o Amendments passed to recognise non Christian religious marriage o But still rule and process determined o And the rules are confusing Purpose of Marriage Today o Public declaration of love and acceptance of status o Undertaking of legal responsibility to another non related adult o STREGHTHEN SOCIAL STABILITY AND ECONOMY (?) o So, if state view marriage as something that confers social benefit – then legal consequences of marriage should be extended to all adults who wish to enter into legally binding private relationships o Yet, benefits of marriage are not extended to all adults o What kinds of adult relationships should the law recognise and protect and regulate?

Lecture 2 - Development of and Challenges to the Institution of Marriage o o o o o o o

Marriage must be between man and woman Previously: S11 (c) MCA1973 1st challenge presents itself How to identify/define the genders? Key issue in marriages of trangender persons Is gender determined at birth or point of marriage? Is gender defined by law, by medicine, by individual?

Key Case: Corbett v. Corbett (1971) 4 criteria to determine gender: chromosomal, gonadal, genital, psychological - Ormrod J held that the first 3 were determinative - Thus sex was determined at birth

9

10 Ormrod J: “having regard to the essentially heterosexual character of the relationship…a person with male…cannot reproduce a person who is capable of performing the essential role of a woman in marriage • Ormrod J in Talbot v. Talbot (1967): marriage is a relationship that depends on sex, not on gender Consider W v. W (2001) • Thus, Corbett v. Corbett made it impossible for a transgender person to marry in their acquired gender • Several challenges were launched to ECtHR • Alleging breaches of Arts. 8,12,14 • Rees v. Uk, Cossey v. UK, Sheffield & Horsham v. UK • Timeline of these cases show a gradual acceptance by ECtHR In 2002, Goodwin v. UK, I v.UK - ECtHR unanimous that UK had breached Arts. 8 and 12 Art 8: no significant issue of public interest to prevent recognition of acquired gender Art 12: gender for purpose of marriage can no longer be defined by the biological o But this did not change domestic law Bellinger v. Bellinger (2003) = similar case to Corbett v Corbett. • It reaffirmed the case of C v C, easy to assume it was prejudice but it would be an unfair understanding of the case. • Consider Lord Nicholls judgement Gender Recognition Act 2004: Ø Gives legal recognition to transsexuals who have taken steps to live fully and permanently in acquired gender Ø Person who has changed gender under the law or outside UK or who is living as the desired gender – may apply for Gender Recognition Cert from Gender Recognition Panel Ø Cert is granted if S2 is satisfied and S3 evidence is provided Ø One full GRC has been issued, person will be legally recognised and treated as if born in acquired gender Ø New birth cert issued

• • • •

Proposals to amend GRA 2004 to allow for self ID of Gender Consider impact in light of Marriage (SSC) Act 2013 Transgendered persons without GRC denied status of being married in their identified gender but can marry in their assigned gender No impact as to rights but perhaps impact to identity

DEVELOPMENT OF HOMOSEXUAL RIGHTS IN MARRIAGE Stephen Cretney: from odious crime to gay marriage o society slowly taking a more accepting stance o Previously, buggery punishable by death

10

11 o o o o o o

Buggery partially decriminalised in 1967 and full decriminalised in 2001 Is marriage still necessary? Not sufficient to simply be tolerated Must be accepted More importantly – access to rights But must acceptance come through marriage?

Shortly after the passing of GRA 2004, the CPA 2004 was also passed Ø Marriage in all but name/form Ø In fact, gay couples have been slowly gaining rights in different aspects of family life through the years, EG: ACA 2002 Ø CPA 2004: culmination of path to equality? Ø Allow same sex couple to register their relationship legally and conferred marriage-like rights and duties Ø Almost identical to the form of marriage Dissolving a civil partnership almost identical to divorce in marriage Ø Financial consequences upon dissolution identical to MCA 1973 Ø Inheritance rights identical Ø So why the continued battle for same sex marriage? Ettelbrick & Sullivan: final acceptance, the ultimate affirmation of identity Deech: aspirational and inclusive nature of marriage • Symbolism with a historical pedigree • Culmination of a journey • Everything else judged as not quite complete • Final equality Something about understanding of marriage that they don’t want to share so still a sense of inequality as they are still being denied. Are there any good reasons against same sex marriage? • Marriage is by definition between man and woman • Marriage is a framework for raising children • Slippery slope argument = • Threaten the right to religious freedom • Same sex couple already have equal rights • Changing the law would be undemocratic • Government should focus on bigger priorities

All these reasons can be challenged

Can we assume all gay people desire marriage as a status of equality? Many gay people are against marriage on principle See marriage as “levelling up” to achieve equality Have to fit into a heterosexual institution Marriage is archaic and perpetuate the patriarchy Oppression of women and sexual minorities

11Reinforce existing power structure Discriminatory against other models of family living

12

THE ROAD TO SAME SEX MARRIAGE FROM 2004, SAME SEX COUPLE HAVE THE OPTION OF CIVIL PARTNERSHIP Ø BUT SAME SEX MARRIAGE STILL ILLEGAL S215 CPA 2004: allows those who married overseas to have it recognised as civil partnership domestically 1st Challenge: Wiltkinson v. Kitzinger (2006) Ø Allege breach of Art 8, 12 and 14 Ø This was dismissed Potter P: marriage by longstanding definition and acceptance, a formal relationship between man and woman, primarily with the aim of producing and rearing children, and if that is the institution contemplated and safeguarded by Art 12…would be to fly in the face of the Convention and fail to recognise physical reality MARRIAGE (SSC) ACT 2013 HAS FULL EQUALITY BEEN REACHED? • Still some differences • Retain a strict heterosexual view of the role of sex in adult...