#17063 - Family Last Minute Revision - Family Law

RELATIONSHIPS

• Many attempts have been made to define ‘a family’ but the range of couples and larger groups, with or without children, who may be included or excluded, makes it difficult to find a widely acceptable definition.

• Marriage was defined in Hyde v Hyde (1866) as ‘the voluntary union for life of one man and one woman to the exclusion of all others’.

• A civil partnership is a relationship between two people of the same sex which is formed when they register as civil partners of each other under the Civil Partnership Act 2004.

• There is no such thing as a ‘common law marriage’ and those living together acquire virtually no rights in relation to each other, regardless of the length of their cohabitation.

• Formalities have to be complied with both to form and to end marriage and civil partnership; no formalities govern the start and end of cohabitation.

• Parties to a marriage or civil partnership can acquire rights over property during the relationship by their contributions, other than money, towards the relationship.

• Cohabitees generally only acquire rights over things to which they contribute financially. They may be able to claim rights over property on the basis of trusts law or proprietary estoppel.

• There are often calls to reform the law in relation to cohabitants. Joint ownership of property is an issue of particular concern.

Should cohabitees be entitled to the same property and other rights as married couples and civil partners? If this were so, would there subsequently be any purpose to marriage and civil partnership?

It may be useful to consider the reasons why the law protects marriage / civil partnership. For example, is it a mark of commitment? Is it about certainty? As part of this exercise, consider whether there is a difference between cohabitees and married couples / civil partners. See, for example:

Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307 (2007)

Barlow and Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ (2010) CFLQ 328

Although civil partnerships confer virtually all the same rights as marriage, it is worth considering whether marriage and civil partnerships serve the same purpose. Consider Wilkinson and Kitzinger v Lord Chancellor [2006} EWHC 2022 (Fam) and Burden and Burden v UK [2007] 1 FCR 69. You may also want to consider Glennon’s article ‘Displacing the ‘conjugal family’ in legal policy – a progressive move?’ [2005] CFLQ 141. Further, what do you think of the Government’s decision not to extend civil partnerships to heterosexual couples (https://www.gov.uk/government/consultations/consultation-on-the-future-of-civil-partnership-in-england-and-wales)?

Discuss the differences in the legal rights of those who are married/civil partners and those who are cohabiting. The key things to mention are rights to occupy the family home under s 30 Family Law Act 1996, provisions on domestic violence, rights and obligations relating to children, maintenance obligations and rights to property on relationship breakdown and inheritance matters.

Consider the arguments for and against giving rights to cohabitants. Arguments in favour of reform include that people are unaware there are no rights attached to "common law marriage" and may rely on this to their detriment, and that the law currently protects the stronger person by putting the onus on the weaker party to do something about their situation. Lady Hale’s comments in Gow v Grant are worth considering in this context. Arguments against reform focus on the idea that giving cohabitants rights would undermine marriage, that people have the choice to marry/enter into a civil partnership and that some people deliberately choose not to formalise their relationship because they do not want to confer rights on their partner.

Conclude with your views on whether the law should be reformed and, if so, whether this would have any impact on marriage and/or civil partnerships. Stronger answers will consider the options for how the law could be reformed. See, for example,

Miles, Wasoff and Mordaunt, ‘Cohabitation: Lessons from Research North of the Border?’ [2011] CFLQ 302

NULITY

•Nullity is a way of ending marriages and civil partnerships.

•Once annulled, the marriage or civil partnership is treated as if it had not occurred.

• English law distinguishes between void marriages/civil partnerships and voidable ones.

• Void means the marriage/partnership was never a valid one. There is no need for a decree although the parties may apply for one if they wish to obtain a financial, pension, or property order.

• Voidable means that the marriage/partnership remains a valid one until the parties obtain a decree to annul it. It becomes void after the decree.

• The law of nullity in relation to marriages is set out in the Matrimonial Causes Act 1973.

• The law in relation to civil partnerships is set out in the Civil Partnership Act 2004.

‘It is sometimes suggested that there would be much to be said for abolishing the concept of the voidable marriage (with the attendant full hearings and sometimes unpleasant medical examination) and allowing the parties to seek a divorce based on the breakdown of their marriage...’ (Cretney, Principles of Family Law, p 84).

In light of this comment, do you think the law of nullity should be reformed?

The law of nullity is less important today than it was in the past with divorce being more readily available and more socially acceptable. Less than 1% of marriages and civil partnerships are terminated by nullity. This in itself may add to calls for the law to be reformed or even abolished. Note that the Law Commission reviewed the law in 1970 and concluded that the law should be retained because some religious groups see a distinction between nullity and divorce, and there should be a distinction between marriages which end with or without moral blame. Also at the time a couple had to be married for three years before they could divorce, but not if the marriage was annulled. Today a couple can petition for divorce after one year of marriage, so do any of these arguments still apply?

It is important that you have a good understanding of the law of nullity contained within the Matrimonial Causes Act 1973 (and the Civil Partnership Act 2004). You should know the difference between void and voidable marriages and be able to describe and comment on the grounds. Note the differences between nullity in civil partnerships and marriages, in particular, the consummation grounds do not apply to civil partnerships. Is this discriminatory or is there a good reason for it?

Can the other grounds still be justified? Is there a place for the VD, mental disorder and pregnancy per alium grounds today? Sexually transmittable diseases can be cured by antibiotics and pregnancy per alium assisted those lured into ‘shotgun marriages’. Also there is no corresponding ground for women to petition if a man has made another woman pregnant against the wife’s knowledge. What about prohibited degrees? These have been relaxed in recent years.

Cretney suggests that voidable grounds should be covered by divorce – so potentially void grounds should be retained. However, will anything really be gained by this? In cases of forced marriage for example, is nullity more appropriate than divorce?

DIVORCE

• Divorce is the legal end of a marriage. A civil partnership is ended by dissolution.

• The only ground for a divorce or dissolution is irretrievable breakdown.

• Five facts can be used to prove a marriage has irretrievably broken down: adultery, behaviour, desertion, two years’ separation with consent, and five years’ separation.

•You cannot use adultery to prove that a civil partnership has irretrievably broken down, but the other four facts can be used.

• Behaviour, adultery, and desertion are fault-based: one party is blamed for the breakdown of the marriage. The two types of separation do not involve blaming one party.

• Under the current law, behaviour and adultery allow for the quickest divorces. This means that divorce based on fault is quicker than no-fault divorce. This has led to a number of calls for reform.

• The Family Law Act 1996 aimed to introduce a system of no-fault divorce. The divorce provisions did not come into force. The domestic violence provisions contained within the same Act did come into force.

• Judicial separation can be used as an alternative to divorce. It grants the court power to make orders relating to finances and to children but it does not bring the marriage to an end.

'The present divorce law (Matrimonial Causes Act, 1973) is unsatisfactory. Although it appears to retain some fault grounds, it is in reality ‘no fault’ divorce; but also with much bitterness involved. It is quick and impersonal, and gives insufficient attention to the children.' (http://www.famyouth.org.uk/bulletin.php?number=103)

Is this a fair reflection of the current law? Should the law of divorce be reformed?

Outline the present law of divorce. There is one ground for divorce; that the marriage has broken down irretrievably. Irretrievable breakdown can be proved by one of five facts: adultery, behaviour, desertion, two years' separation with consent and five years' separation.

Irretrievable breakdown is also the ground for dissolution of a civil partnership but there are only four facts that can be used to prove irretrievable breakdown.

What are the problems with the current law? Consider in particular the issues raised in the question. For example, does it create...