Summary
Family Law Module Summary
- Module
- Family Law
- Institution
- Canterbury Christ Church University
This summary details all of the relevant information needed on the family law module. All notes are grade 2:1 and above.
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Family LawLecture 1 – Introduction to Family Law
What is Family Law?
Legal regulation of family relationships. Typically, there are two main aspects of this legal
regulation. The first is the notion of financial support. Are there any obligation to support
your family members? When does the obligation stop? What happens on death? Where do the
assets go? Do you have a right to claim money just because you are family?
The second notion is standards of behaviour. How can you behave towards your family
members? The relationship between the family and the state – how much power should the
state have? When should the state intervene in a decision?
Deeply tied to notions of privacy – private / public spheres. Domestic abuse/violence. Law
enforcement agencies were not keen on getting involves in issues in the private sphere.
What should the public have an interest in? e.g. is it appropriate to hit children? What is too
far and where do we draw the line.
Article 8 ECHR – right to respect for private and family life. Even in human rights there is a
right of privacy and family being tied together.
How do we conceptualise / balance the rights of children with the rights of other family
members? Idea of private sphere where the state doesn’t intervene may be more appropriate
for grown adults who have capacity to make choices, whereas the argument becomes
muddled when this comes to children when they have the capacity or they don’t have the
capacity to choose what is right in a decision.
When should the state be required to intervene in personal relations? Public children’s law –
child abuse cases. Professions involves, e.g. social worker, social services etc. Must intervene
when appropriate and not when it is not appropriate.
Sources of Family Law
Lot of judicial discretion at play. Case law is very developed, especially the interpretation of
the statute. Changing interpretations over time reflecting society changing. Heavy influence
of social factors on legislation.
Gender roles are changing. Roles of parents are changing.
Law has a duty to prevent child abuse from happening, and to some extent preventing
poverty.
Statute.
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.
Main Statutes
Matrimonial Causes Act 1973 governs marriage, divorce and financial provision.
Civil Partnership Act 2004 – civil partnerships.
Children Act 1989 – governs both private and public children law.
Family Law Act 1996 – domestic violence.
Trusts of Land (Appointment of Trustees) Act 1996 – unmarried partners.
Adoption and Children Act 2002 – adoption.
Marriage (Same Sex Couples) Act 2013 – marriage.
Children and Families Act 2014.
International Aspects
,Main focus on English family law.
Increased internationalisation of families and family law.
International conventions – Hague Convention, Brussels Convention, UN Convention on the
Rights of the Child. May link to judgements in domestic settings.
Recognising global definitions of the family. What is a family globally? This definition can
be different especially in different cultural definitions. E.g. should same-sex couples be
recognised as a family? 2 years ago CJEU recognised that same-sex couples should be
regarded as family in European law, even though many states in Europe disallow civil
partnerships.
Potential impact of Brexit on Brussels Convention. Significant when comes to international
impacts. EU regulation covers child abduction.
Family Law and Human Rights
The Human Rights Act 1998 incorporates the European Convention of Human Rights into
UK law.
Article 8 - The right family life is protected under this article.
Article 2 – The right to life – especially when deciding who should make a medical decision
on behalf of a child – the parent of the child or the state? Minor cases.
Article 3 – Torture or inhuman degrading treatment/punishment
Article 6 – Right to a fair trial
Article 12 – Right to marry – marriage/same-sex couples/civil-partnership etc.
Article 14 – Freedom from discrimination – on grounds of race, religion, sexuality, gender
etc. Civil partnerships should be allowed for heterosexual couples not just same sex.
What is Family?
There is a limited legal definition of ‘family’, but this mainly includes the tendency to look at
specific relationship’s ‘parent’ ‘child’ ‘spouse’ and ‘civil partner’. Family structures have
changed over time. Very rarely look at the overarching idea of ‘family’.
There are now decreases in marriage (67% of families are a married couple) and increases in
cohabitation (living together but not married)
There are also increases in lone-parent families and an increased recognition of same sex
couples.
Increase in second/third marriages, as well as people having stepchildren and stepparents.
Alternative forms of family-assisted reproduction, such as sperm donation, IVF, surrogacy.
Many changes in society.
Decline of traditional nuclear family – political discourse. Heterosexual couple is married and
have a few kids. As of 2015, 25% of families were classed as a ‘nuclear family’.
Formalist definition
Objective formal factors should define the term family, such as biological parentage or
marriage. Biological relationships and contract relationships.
Advantage as this leads to certainty and clarity.
e.g. Child Support Act 1991 – imposes financial obligations on biological parents of children.
It doesn’t matter if you don’t want anything to do with your child, excluding family assisted
reproduction, the obligation is always enforced until your child is 18.
This is rigid. Only recognises specific relationships. This does not reflect the amount of
personal relationships that exist in a person’s life. Treating an unmarried couple as if they
were strangers does not reflect reality. These definitions can be stigmatising on those who
don’t fit certain definitions. Can marginalise those that don’t fit the criteria.
,Function-based definition
Some academics now favour a function-base definition where the priority is the actual nature
of the relationship. Concern is the nature of the relationship and its function rather than
formalities.
Advantage in focus on the reality of the relationship.
But how do we decide what functions a family needs to perform? E.g. if your mother is
unwell and you are as a child a career of your mother, should this change whether or not you
are a family? Parent being responsible for a child vs child being responsible for a parent.
Fitzpatrick v Sterling Housing Association [2000] – Lord Clyde held that a sexual
relationship between two adults is essential to showing a family relationship.
Marriage law changed – have you and your partner had sex? Is this a requirement of a
family?
Do we want that level of intrusion to establish function? Some argue that function is not the
base of a family relationship.
Idealised definition
Give up trying to find a definition of family that is accepted by everyone. It is not possible to
define family. Go with the ideal definition as the standard.
Argument that you traditionally have nuclear family who are married with kids.
Criticism is that it is unrealistic as very few families correspond to the nuclear ideal. Many
people do not conform to this ideal.
This potentially excludes anyone that does not conform.
Can promote oppression, e.g. if a woman should be confined to the home. Very fixed ideas
about gender roles in a family, a women is a mother and a father is a worker.
How do you define what is ideal? Is a traditional nuclear family ideal?
Self-definition
Favoured by Eekelaar and Nhlapo who say that you are a family if you say you are a family.
The advantage of not excluding those who wish to be a family but do not fit in other
definitions.
Difficulties of uncertainty – may not be an ideal basic for law. From one point of view this
leaves uncertainty as to who you owe legal obligations and who you have legal rights over.
What if your ideas conflict? You believe you friend is family, but she doesn’t see you in this
way.
It is appropriate for people who are perhaps transient in our lives and whom we attached to as
children considered family?
People often include pets in the definition of a family. Dogs, cats etc. Can cause issues if we
accept this.
Legal definition
What do the courts think? Typically they used to think ‘blood or marriage’, but relatively
recently, the courts have shifted this definition.
Fitzpatrick v Sterling – The Court accepted that the definition of family is not restricted to
blood of marriage ties. Hallmark is “degree or mutual interdependence”.
The case concerned Mr Thompson and Mr Fitzpatrick who lived together in a flat for 18
years until Mr Thompson died. Mr Fitzpatrick (the claimant) had lived with the original
tenant in a stable and long-standing homosexual relationship at the deceased’s flat. Under the
Rent Act 1977, Mr Fitzpatrick could succeed to the tenancy of the flat, which had been in Mr
Thompson’s name alone, if he was a member of Mr Thompson’s family. So, the core issue
, was whether gay or lesbian couple could be a family. The Act had been extended to include
as a spouse someone living with the tenant as husband or wife.
Held: the claim to inherit as a spouse failed. However, the meaning of ‘member of a family’
could include a same sex partner who had been involved in an established monogamous
relationship. By a three to two majority, the House of Lords held that Mr Thompson and Mr
Fitzpatrick were a family. The majority accepted that the meaning of family is not restricted
to people linked by marriage or blood. Lord Slynn suggested that the hallmarks of family life
were that there should be a degree of mutual inter-dependence, of the sharing of lives, of
caring and love, or commitment and support. He later added that the relationship must not be
‘a transient superficial relationship’. Applying these criteria to the couple in question, they
were certainty family members. Mr Fitzpatrick cared for Mr Thompson during the last six
years of his illness. The dissenting judges argued that the paradigm of the family was a legal
relationship or by blood. As the couple did not fall into these definitions, nor did they mirror
them, they could not be regarded as family, although the minority added that they believed
Parliament should consider reforming the law so that a survivor of a gay or lesbian
relationship could take on tenancy.
Such a person could not be a spouse within the meaning of the Act, but the family provision
was more widely framed and allowed the court to take account of changes in society. Thus, a
same sex partner could take a succession of a property from that partner on death on the basic
of his being a member of the family. The hall marks of the relationship were essentially that
there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and
love, of commitment and support. Lord Nicholls of Birkenhead asked, ‘can the expression
‘family’ legitimately be interpreted in 1999 as having a different and wider meaning than
when it was first enacted in 1920?’ He answered ‘yes’: a statement must necessarily be
interpreted having regard to the circumstances when it was enacted. It is a fair presumption
that Parliament’s intention was direct to that state of affairs. When circumstances change, a
court has to consider whether they fall within the parliamentary intention. They may do so if
there can be detected a clear purpose in the legislation which can only be fulfilled if an
extension is made. Minority reference to the lack of conformity with idealised versions of
family.
Definition of family further shifted in: Ghaidan v Godin Mendoza [2004]
Interpretation in accordance with HRA 1998 and ECHR. The case concerned not the
relationship between an individual and a public authority but the legal relations between two
private individuals. Mr Mendoza lived with his partner Mr Wallwyn-James in West London,
of which Mr Wallwyn-James had a statutory tenancy. On Mr Wallwyn-James’s death, the
landlord sought possession of the property. Mr Mendoza claimed that he was entitled to
succeed to the statutory tenancy. He was arguing not only for the family right to tenancy, but
for the spousal right to tenancy. The Court found that they could set aside Fitzpatrick on the
grounds that the HRA had not come into force then. The interpretation of homosexual
couples who are not a spouse was in violation of discrimination under the ECHR, therefore it
held that same sex couples can be living together as husband and wife.
Themes of Family Law
The way in which we define family is affected by different themes in family law.
What is the social purpose of family law?
Eekelaar – said that one of the purposes of family law is to be protective, protecting members
against emotional, physical or economic harm. Family law is affected by many social
impetus’. He also said that it was to be adjustive on the breakdown of relationships, and
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