#17070 - Family Law Principle - Family Law

Only non-blood relationship given legal recognition is marriage

As society expanded, law has slowly expanded to recognise other family form

Hyde v Hyde- Lord Penzance: 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

Deech: not one word of this remains true in British marriage law

• Civil & Religious Marriage- Christian and other religion

• Forced Marriage

• Divorce

• Same sex marriage

Discriminatory- Different in rights?

• Same sex- Partnership/ Marriage

• Heterosexual- Marriage only

Civil Partnership: Legally allow union of same sex marriage, similar rights entitled

Claim only difference in name

Marriage previously S11(c) MCA 1973 must be between man and woman

Marriage is legally binding, recognised, and governed relationship for non-related adults with protected rights (brings responsibilities) Marriage is the only way to get

Only type: Religious factor, to promote such institution by special privileges, enhance society, protect children (how about children outside marriage?)

Deech: Ultimate commitment with crux of generational support- ceremonial aspect adds seriousness and public recognition to the institution

Benefits:

• No inheritance tax

• Benefit from spouse’s pension

• Superior claim under inheritance under Inheritance Act 1975

• Occupation rights and subject to claim property of relationship breaks down

• Use of surname

• Defence of martial coercion for wives on offence other than treason and murder

• Immune from be charged with conspiracy with each other

• Compelled to give evidence for the prosecution in certain limited circumstances (immune in others)

No duty to have sexual intercourse but have consequences ie. Incapacity/ wilful refusal for annulment

Civil Partnership could not use adultery as evidence for divorce

Stephen Cretney: From odious crime to gay marriage

• Come to the point of equality

• Society not always intolerant towards homosexuality: Local Government Act 1988 take position defending and promoting traditional family values

• Previously, buggery punishable by death- decriminalised in 2001

• Marriage necessary as not sufficient to simply be tolerated, must be accepted

• Gender Recognition Act 2004 & Civil Recognition Act 2004

  • In fact, same sex couples have been slowly gaining rights in different aspects of family life thought the years

• Civil Partnership Act 2004- Path to equality?

  • Allow same sex couple to register their relationship legally and conferred marriage-like rights and duties

  • only for same sex- Rebecca & Charles Keidan (2016) lose in claim to heterosexual civil partnership

  • almost identical to the form of marriage- practically same as Matrimonial Causes Act 1973

  • dissolving civil partnership almost identical to dissolve marriage

  • Financial consequences upon dissolution identical

Same Sex Marriage:

• Ettelbrick & Sullivan: final acceptance and ultimate affirmation of identity

• Deech: aspirational and inclusive nature of marriage

• To complete the journey and final equality

• Second class right still? Only civil marriages and not recognised in every country

• Reason to against?

  • Marriage is defined as between man and woman

  • Framework to raise children- reproduction issue?

  • Slippery slope argument- Country deeply religious ie. Ireland had referendum not to have gay marriage

  • Threatening religious freedom

• Fair to assume all gay people want to get married and is a good thing in the eyes of all homosexual?

  • Many homosexual against marriage on principle- do not want to fit relationship in marriage

  • Marriage is old age and patriarchy- oppressing women and sexual minorities- reinforce existing power structure

  • Discriminatory against other models of family living

• Marriage (Same Sex Couple) Act 2013

  • Shalk & Kopf v Austria (2010): ECHR held same sex couples had family life under Art 8

  • S1(1)- Legalise same sex marriage

  • Still some difference- retain strict heterosexual view of the role of sex in adult relationship

    • Religious ceremony cannot be used for civil partnership

    • Religious organisations can opt in but not obliged to do so- cannot bring claim against religious organisation for refusing to conduct

    • Marriage is unlawful if conducted religiously

  • Sex is essential in adult relationship in context of procreation- sex is not used as a basis to end civil partnership or same sex marriage

    • Non-consummation cannot be used to annul

    • Adultery cannot be used to dissolve civil partnership or as a fact of divorce- as adultery is a sexual intercourse with a person of opposite sex outside marriage

Same sec relationships have 2 options of legal recognition

• Discriminatory to heterosexual couples

• Also discriminatory to same sex couples: suggesting that they can choose commitment but heterosexual only have one single ‘gold standard’- decide own family form (autonomy)

• Law does not recognise sexual intimacy as important in a same sec relationship

• Same sex cannot rely on adultery

• Reinforces stereotypes and cheapens same sex relationship

• Deech: Law not truly equal

• Law seems to still priorities heterosexual marriage or downgrading civil partnership

Cohabitation

• No single definition

  • S1(2)Domestic Violence and Matrimonial Proceedings Act 1976: man & woman living together in same household as husband and wife- CPA 2004 include same sec couples

  • Fatal Accident Act 1976: Minimum of 2 years

  • Husband & Wife- Crake v Supplementary Benefits Commission (1982)

    • Members of the same household

    • Stable relationship

    • Financial support- mutual pool of resources

    • Sexual relationship- on-going

    • Children from this relationship

    • Public acknowledgement (as unit)

    • Must look at overall relationship holistically

  • Re J (1995): Reluctant to see as cohabitation if never had sexual relationship

  • Kimber v Kimber (2000): Added Sharing of daily life tasks and duties & intention and motivation

• 5.9m Cohabiting- doubled over 2 decades

• Less protection and not recognised in law but also not bound by any law (freedom)- different status as happened naturally

• No such thing as common law marriage- those living together acquire virtually no rights in relation to each other, regardless length of cohabitation ie. No right for financial support during relationship

  • Burns v Burns- nothing in property law and no protection in family law

  • Children disadvantaged as no legal provision from other parent

    • Unmarried fathers do not have automatic parental rights

    • Orders made for child for cohabitant parents less generous compare to married parent

  • Contract law protection- reluctant

    • Horrocks v Forray- no intention to create legal intention

    • Public policy not allow -Fender v St. John Mildmay: law will not enforce immoral promise

    • Exception- Tanner v Tanner: negotiated beforehand with valid consideration

    • As the only legal way of protection but reluctant to regulate and recognise such relationship

    • Legally vulnerable

    • Law commission 2002: Recognise trend and disputes but let problem grow, people still disadvantaged

    • Parliament acted differently with law commission suggestion: no rights

• No formalities to start or end, no legal duty of maintenance

• People want company but do not want to stick together

ie. Young people, over 65 as married before with grown-up children want to secure inheritancy

• Pre-martial cohabitation or cohabitation as an alternative

• Society generally more accepting- growing number see no difference between marriage and long term stable cohabitation

• Cohabitees generally only acquire rights over things to which they contribute financially on basis of trust law or proprietary estoppel

• Practically conjugal like couples- live in intimate and sexual relationship

• Law does not give same consequence and protection to cohabitation couple

• Prioritising people choose to legally cement their relationship

• People choose not to go into that bit of law- deliberately choose not to legalise relationship law should not prioritise

• ‘Those who exercise their right not to marry should not have the consequence of marriage thrust upon them’ Chan

• Different rights in domestic violence, financial obligations, inheritance, children

• Reform?

  • Cohabitation benefit state?

    • Lord Hoffman: Children better to brought up by married parents

    • Sir George Baker: Marriage provide building blocks of society- more stable foundation

    • Deech: Children deserves parents prepared to make act of commitment

    • Economic: can impose responsibilities between married couple, less dependent on state

    • Too much uncertainty

    • Tend to be less economically less well off

    • Benson: 3 times higher chance to separate with children

    • Marriage Foundation: 1/5 of parents but of family breakdown cases

    • Goodman & Greaves: Different sort of people choose different style poorer- cohabitation, good and stable income- marriage no taxation benefit no motivation & less educated

  • Entitled to property and rights as married couples and civil partners?

  • Law Commission 307 (2007): proposed statutory discretionary scheme to couples

    • living together at least 2-5 years or have a child AND

    • R has retained benefit or A suffered economic disadvantage that has iccured as a result of qualifying contribution

    • Parliament against implementation

  • For

    • Encourage stability and certainty

    • Women need to be protected(through ordinary principles of property and contract)

    • Benefit to state- less burden to pick up pieces

    • Blend of estoppel principles to achieve overall fairness

  • Against

    • If reformed, undermining purpose to marriage and civil partnership?

    • Less attractive if equalised- Kiernan: little evidence show law affect decision to marry or cohabit

    • ...