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Family Law textbook notes using 'Family Law' by J Herring
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Family Law Textbook NotesL1 – Chapter 1, Chapter 3(1-5, 7-8, 12)
Definition of the Family:
Difficult to define – stereotypically the ideal family is a mother and father with 2
kids
- In 2015, only 25% of families had a couple with children
- This shows how it’s not the most common
There are different types of families (a group related by blood, marriage or adoption):
a. Nuclear family – couple and children
b. Extended families – EG: grandparents, uncles or aunts
c. Kinships – the larger family group related by blood or marriage
d. Households – group of people who share accommodation
David Archard suggests a family is ‘multigenerational group, normally stably co-
habiting, whose adults take primary custodial responsibility for the dependent children’.
One of the difficulties of defining a family is that is can cause stigma from denying
that certain people qualify under the definition
- EG: gay or lesbian relationships
In Gammans v Ekins 1950 2 KB 328 when talking about an unmarried couple – ‘to
say of two people masquerading as these two were as husband and wife, that they were
members if the same family, seems to be an abuse of the English language’. – no longer
represents the law
The leading case is Fitzpatrick v Sterling Housing Association Ltd [2000] 1 FCR
21: HOL held that a gay man was entitled to take over the tenancy formerly held by his
long-term male partner, who had died, under the Housing Act 1988.
In Mendoza v Ghaidan [2004] UKHL 30: held that a same-sex couple were living ‘as
husband or wife’ for the purposes of para 2(2) of Sch 1 of the Rent Act 1977. HOL held
that this covered same-sex couples.
The Government’s definition – ‘family test’ includes:
i. Couple relationships (including same-sex couples) including marriage, civil
partnerships, co-habitation and those living apart, together
ii. Relationships in lone parent families, including relationships between the
parents and children with a non-resident parent, and with extended family
iii. Parent and step-parent to child relationships
iv. Relationships with foster children and adopted children
v. Sibling relationships
vi. Children’s relationship with their grandparents
vii. Kinship carers
viii. Extended families, particularly where they are playing a role in raising
children or caring for older or disabled family members
, Chapter 3 (1-5, 7-8, 12)
Marriage, Civil Partnership and Co-habitation
Statistics on marriage:
The average age of a first marriage in England and Wales has changed – it has risen
- 1975 = 23 for men and 21.4 for women
- 2013 = 36.7 for men and 34.3 for women
More common for couple to cohabit before marriage
The likelihood that a marriage will end in divorce has also risen.
What is marriage?
The meaning of marriage:
- Impossible to provide a single definition of marriage – complex because there
are a mix of social, legal, religious and personal issues
- Martha Fineman: ‘Marriage, to those involved, can mean a legal tie, a symbol of
commitment, a privileged sexual affiliation, a relationship of hierarchy and
subordination, a means of self-fulfillment, a social construct, a cultural phenomenon, a
religious mandate, an economic relationship, the preferred unit for reproduction, a way
to ensure against poverty and dependence on the state, a way out of the birth family, the
realization of a romantic ideal, a natural or divine connection, a commitment to
traditional notions of morality, a desired status that communicates one’s sexual
desirability to the world, or a purely contractual relationship in which each term is
based on bargaining.’
- Marriage can be examined from a number of perspectives:
(1) Functional: from this approach, we need to find the purpose of the marriage.
o Some believe it’s for the benefit of the children, but since many children
are born to unmarried couples now-a-days, it seems to be outdated.
o Some believe it creates an atmosphere of love for the children
o Others believe it allows for the regulation of private property and the
creation of legitimate heirs
(2) Psychological: a psychological need to get married and the psychological
interaction between the partners.
o Anthony Giddens, when developing the concept of ‘pure relationships’,
has argued that modern intimidate relationships are entered into ‘for what
can be derived by each person from a sustained association with another; and
… is continued only in so far as it is thought by both parties to deliver enough
satisfaction for each individual to stay within it.’ – people are now more
individualistic and will only continue in a relationship that they are
benefiting from.
(3) Political: the role that marriage plays in wider society
o Some see women as the essence of marriage
o Marriage had been described as ‘a public form of labour relationship
between men and women, whereby a women pledges for life (with limited rights
to quit) her labour, sexuality and reproductive capacity, and receives
protection, upkeep and certain rights to children’.
(4) Religious:
o Some religions see marriage as a spiritual union between the spouses
o Some believe marriage is indissoluble – divorce is not an option
o Some teach that marriage is only for heterosexual couples while others
are open to same-sex marriage.
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