Lecture notes
Family law
- Module
- Family law (FAM)
- Institution
- Canterbury Christ Church University
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20th January 2020Lecture 1 – Introduction to Family Law
What is Family Law?
At its most basic, family law is the legal regulation of family relationships. Typically, there are two aspects
to this legal regulation.
1. Financial Support
- Is there an obligation to support your family members?
- When does the obligation stop?
- What happens on death?
2. Standards of Behaviour
- How can you behave towards your family members?
- How does the courts decide between conflicting views?
- Domestic abuse?
- If a family member behaves wrongly towards another family member, how does this shift the
legal obligations?
Public and Private Law
The relationship between the family and the state – how much power should state have? Typically, family
law, historically, was not very keen on in-depth scrutiny, in some areas.
For example, domestic abuse and child abuse, the law enforcement agencies (40-50 years ago) were not
particularly keen on getting involved in private spheres of family life.
Private sphere – Article 8 ECHR – right to respect for private and family life.
How do we conceptualise/ balance the rights of children with the rights of other family members?
The idea of a private sphere is appropriate when it comes to grown adults that choose their own choices.
This argument becomes muddled when it comes to children.
When should a state be required to intervene in personal relations? When does the state failing to do
something become an omission that adds to the causation of the event?
Sources of Family Law
There is a lot of judicial discretion at play in family law; the case law is numerous and typically develops the
interpretation of the statute quite significantly.
- Judicial discretion
- Statue
- Case law helps develop the principles used by judges to interpret the statute
- Heavy influence of social factors in legislative policy, e.g. preventing child abuse, preventing poverty
etc.
Statutes
, - Matrimonial Causes Act 1973 – governs marriage, divorce and financial provision
- Civil Partnership Act 2004
- Children Act 1989 – governs both private and public children law
- Family Law Act 1996 – domestic violence
- Trusts of Land (Appointment of Trustees) Act 1996
- Adoption of Children Act 2002
- Marriage (Same Sex Couples) Act 2013
- Children and Families Act 2014
International Aspects
- Increased internationalisation of families and family law
- International conventions – Hague Convention, Brussels Convention, UN Convention on the Rights
of the Child
- Recognising global definitions of the family
- Potential impact of Brexit on Brussels Convention
Family Law and Human Rights
Human Rights Act 1998 incorporates the European Convention of Human Rights into UK law. the right to
family life is specifically protected by ECHR Article 8.
- Article 2 – right to life
- Article 3 – right to be free from torture or inhuman degrading treatment/punishment
- Article 6 – right to fair trial
o Currently, there is a domestic abuse bill is going through parliament that, if enacted, would
prevent an accused cross examining the victim
- Article 12 – right to marry
- Article 14 – right to be free from discrimination
What is a Family?
There is a relatively limited legal definition of ‘family’. When the courts look at cases they tend to focus on
and look at specific relationships (parent, child, spouse, civil partnership).
- Family structures have changed
- Decrease in marriage, increase in cohabitation
- Increase in lone-parent families
- Increased recognition of same sec couples
- Increase in second and third marriages – stepchildren and stepparents
The traditional nuclear family is one of a heterosexual married couple that have children. As of 2015, only
25% of families in the UK were of this type of family.
Formalist Definitions
One debate on how to define a family is that of a formalist definition. This is the idea of an objective and
formal factors should be the defining factors of a family. This, historically, was the view of the courts.
,Objective factors such as biological parentage or marriage being used leads to clarity and certainty. Using
this definition, it is easy for everyone to define the family.
There are still elements of this type of definition in family law, for example the Child Support Act 1991
imposes financial obligations on biological parents of children (regardless of intention to be involved or
not). A criticism of this definition is that is it far too rigid; it only recognises very specific relationships and it
does not reflect the multitude of personal relationships that exist in a person’s life. The formalist definition
is exclusive and can marginalise those that don’t fit the criteria. This can mean that a stigma can be
imposed on those that don’t fit the definition.
Function Based on Definition
The problems with the formalist definition have led academics to favour a function-based definition. This is
where the priority is the nature of the relationship and its functions rather than formalities.
One advantage of this is that it focuses on the reality of the relationship. However, the question raised
from this definition of family is that of how to decide what functions a family needs to perform to qualify
as a family under this definition. For example, if a mother falls sick and the daughter cares for the mother,
does this stop them being a family as it is meant to be the mother who cares for the children?
Fitzpatrick v Sterling [2000]
A sexual relationship is essential to showing family relationship (Lord Clyde).
Do we want that level of intrusion to establish function?
Some argue that the function is not the point of family relationships; shared values and memories are.
Idealised Definition
Some argue that we should give up trying to find a definition that includes everyone/ that can satisfy
everyone. They argue that the only definition that can be used is the ‘ideal definition’: that being, married
couple with children.
The criticism of this is that it is unrealistic, very few families correspond to the nuclear ideal. The ideal
definition potentially excludes everyone that does not conform. It can promote oppressions, for example
gender roles within the nuclear family.
Self-Definition
Eekalaar and Nhlapo believe that a family is a family if you say you are a family. The advantage of this is
that it does not exclude those who wish to be a family but do not fit the other definitions. However, the
problem with this is that it creates difficulty and uncertainty, it may not be an ideal basis for law. Also,
where the definition of family conflicts, problems can also arise, for example if A thinks B is her family, B
does not.
Legal Definition
Recently, the Courts have shifted their definition.
, Fitzpatrick v Sterling [1999]
This case concerned two men, F and T, who were long-term partners (same sex marriage not available
at the time) and had lived together for 18 years in a flat. The Rent Act 1997 used to allow a family
member to succeed a tenancy when the tenant died. The tenant to the flat, T, died. F wanted to
succeed the tenancy and argued he could because he was a family member. The landlord argued that
because they weren’t married, F was not family. In this case, the Court shifted and said that to define
whether or not someone is a family member should not be restricted to blood or marriage ties; the key
aspect to a family was a ‘degree of mutual interdependence’. This was the idea that there should be
some element of relying on eachother. There was still debate in the judgment, some arguing that
proving a sexual relationship was not necessary, but the debate was still argued whether a sexual
relationship is necessary; some judges refused to revert to the mutual interdependence idea.
The definition of family was further shifted in Ghaidan v Godin Mendoza [2004].
Ghaidan v Godin Mendoza [2004]
Mr M had lived with Mr J (his partner) for a very long time. Mr J had died, and Mr M sought to succeed
the tenancy. The difference in this case, Mr M was arguing for both the family right and the spousal
right (stronger right) to succeed the tenancy. The Court found that Fitzpatrick could be set aside on the
grounds that the HRA had come into force since. The interpretation of a homosexual couple as not a
spouse was a violation of the non-discrimination right under HRA 1998 and ECHR. The Court held that a
same sex couple can be living together as ‘husband and wife’; key factors were sharing lives, intimacy
and stability.
Themes of Family Law
What is the point of family law? What is the social purpose of family law?
Eekelaar has discussed some of the different aspects of the purpose of family law, he states there are
three:
1. Protective – protecting members against emotional, physical or economic harm
2. Adjustive – to help family members adjust when there is a breakdown of relationships
3. Supportive – to encourage and support family life
The problem with this view is that these three purposes can be in conflict with one another.
Themes in Family Law
Feminist Perspectives
The private sphere of the family can perpetuate abuse of women and children.
The family ensures women are kept oppressed. Family law uses norms of what an ideal family is and what
an ideal mother/father is which helps maintain oppression.
Themes in Family Law
- Wider social functions of the family
- The role of the family in socialising individuals and preparing them for entering society
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