FAMILY NOTES
FA M I LY
OTES
L AW N
TABLE OF CONTENTS
INTRO, MARRIAGE & NULLITY : P.2
DIVORCE & DISSOLUTION : P.13
FINANCIAL REMEDIES ON DIVORCE : P.20
FINANCIAL PROVISION FOR CHILDREN/SEPARATED COHABITEES: P.29
PARENTHOOD & PARENTAL RESPONSIBILITY : P.46
CHILDREN’S RIGHTS & AUTONOMY : P.56
PRIVATE DISPUTES OVER CHILDREN: P.61
CHILD PROTECTION: PUBLIC LAW P.66
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,FAMILY NOTES
INTRO, MARRIAGE & NULLITY
• If relationships don’t attract family law protection, they must rely on general law- not well-suited to resolving
family disputes and therefore is important to identify ‘family’
• traditional approach seen in Gammans v Ekins 1950- no marriage, no family!
• functional approach Fitzpatrick v Sterling Housing Association 2001: long-term cohabiting couple
considered family under Rent Act 1977 (same sex)
• Lord Slynn: hallmarks of familial relationship are mutual interdependence, sharing of lives, caring & loving,
commitment & support: not transient or superficial
• but Lord Clyde said need sexual relationship!
• Note: Probert don’t assume functional equivalence of relationships too quickly- need to consider evidence
• some legislation requires people to be living in same household, sharing household (not j living together):
Kotke v Saffarini 05
• Under ECHR, Vallianatos v Greece 13 in ‘family life’= same & opposite sex couples with/without kids
• Despite this, much legislation explicitly for M/CP but not co-habitants… yet compare
• Vervoeke v Smith married couple but with no social/functional relationship: cohabitants living akin to M/CP
may have closer relationship yet prove more to get protection
• Clive has argued for an entirely functional model- ‘de facto’ approach
• Glennon argues CP/gay M have re-emphasised the formal conception of family- ironic given that M at all
time low
• Consider things like children- does/should it matter if parents married/unmarried? Is family about more than
just a marriage certificate?
• family is an ever-evolving concept- shouldn’t try to define it
• For many faiths, M= basis of family life- should this influence law?
• English law increasingly recognises relationships not formalised but focus is still on couples- could ask if go
beyond this- e.g 2 sisters? Asexual relationships? What should be determinant- blood, love, sex, cohabitation?
• Legal recognition important for: rights of intestacy, welfare benefits, domestic violence remedies, remedies on
separation- financial & property, tax exemptions etc
• Focus of law is on status-based relationships (as opposed to function-based)- marriage & civil partnership-
formalised relationships recognised by virtue of completing state-prescribed formalities
• Status based relationships have roots in past-doctrine of unity etc
• but these have gradually fallen away & of no application to opposite or same-sex couples
• Sheffield CC v E 04 Muby J ‘Today both spouses are the joint, co-equal heads of the family’
• given that status is now less distinctive/important, can question if it is the appropriate foundation!
MARRIAGE & CIVIL PARTNERSHIP
• 2001, 51% adult population married- by 2011, down to 47% (continuation of trend since 70s)
• 2014, 47% children born to unmarried parents
• 2009 marriage rate at lowest since records began
• but Probert observes most couples are still married & stay married!
• stats also don’t include marriages abroad- as many as 10% happen abroad
• Civil Partnerships-more popular than expected- registrable since 2005
MARRIAGE
• Religious institution, contract between parties & legal status
• questionable whether should continue to be shaped by Christian doctrine in multi-cultural, multi-faith society:
moved further away from religious roots
• Definition in Hyde v Hyde 1866 ‘marriage, as understood in Christendom, may for this purpose be defined as
voluntary union for life of 1 man and 1 woman to the exclusion of all others’
• every element of this is now out of date but we use it anyway!
• In Bellinger v Bellinger 01 viewed M as matter of status by Butler-Sloss whereas Thorpe LJ viewed it as a
contract which impacts upon status
• Contrast s.1 CPA 04 ‘civil partnership is a relationship between two people of the same sex… which is
formed when they register as civil partners of each other’
• introduced as the functional equivalent of marriage- aimed to end discrimination of same-sex couples &
express society’s approval of same-sex relationships- generally get same protections
• Hale (extra judicially)- ‘civil partnerships is marriage in almost all but name’- echoes by Potter P in Wilkinson
v Kitzinger 06
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,FAMILY NOTES
• BUT Act reinforced that it was distinct from M- those married abroad wouldn’t be recognised as spouses here
• Wilkinson v Kitzinger 06 argues differential treatment is discrimination: failed- held that the differential
treatment justified because of the symbolic meaning of marriage- ‘they are indeed different’
• suggests there is something special about marriage
• Was recognised similarly in Kopf v Austria 10: M has ‘deep-rooted social and cultural connotations’- BUT
also said doesn’t mean obligation for same-sex M- how?
• now that we have same-sex M, there is no justification for CP only being for same-sex couples- see Steinfeld
& Keidan v SS for Education 16
• at 1st instance judge seemed truncate Art 8/14- said didn't fall under Art 8 because didn’t relate to serious
enough detriment- Fenton-Glynn says incorrect as matter of ECHR jurisprudence & illogical!
• CA said did fall within Art 8 BUT decision to ‘wait & see’ justified- for legislature to make change. Arden LJ
in dissent said would become increasingly difficult to justify this ongoing ‘wait and see’ approach
• Gov have struggled to explain why no sexual relationship necessary for CP (see divorce notes)
• and yet blood relatives are within prohibited degrees
• Therefore CoE have asked- is it about safeguarding those who wish to share their lives together or gay rights?
Should non-sexual/romantic couples be able to get CP- or straights?
• Note: Goffey-Rhys argues that denying mixed-sex couples right to form CP amounts to breach of Art 8 &
Art 14
• idea that married couples can’t call themselves partners etc
• Marriage is seen as the ‘gold standard’- some might argue CP undermines institution of M- could argue it
reinforces it though
SAME-SEX MARRIAGE
• Sexual orientation actually irrelevant!
• Harrogate BC v Simpson 1985 CA held lesbian couple couldn’t be deemed living together as husband and
wife- ECtHR said no violation of Art8 & 14- legit for state to protect concept of family- margin of
appreciation
• Fitzpatrick v Sterling HA 2001 HL still not prepared to accept same-sex couple’s relationship as akin to
husband and wife- but did accept family- Lord Nicholls seemed to place sex as being important- interesting
• Ghaidan v Godin-Mendoza 2004 HL said exclusion of same-sex couples from tenancy succession legislation
(Rent Act) incompatible with ECHR-HRA- Art.8/14 violated
• Hale said homosexual relationships have same qualities of intimacy/stability/interdependency as heteros
• said marriage-like homosexual relationships analogous to marriage-like hetero relationships
• CPA 2004 came off back of this
• Only requirement under ECHR following Schalk & Kopf v Austria 2010 is that state don’t treat same-sex
couples differently without strong justification- on basis that is necessary (& proportionate) to pursue a
legitimate aim
• said no requirement for same-sex M- left open to states- given that M has ‘deep-rooted social & cultural
conniptions which may vary etc’
• Marriage (Same Sex Couples) Act 13 allowed same-sex M from 2014
• s.1(1) Marriage of same sex couples is lawful
• Main arguments for- 53% of consultation agree- homosexuals should be allowed to express love/happiness
same as other couples
• CP seen as second class therefore equality
• good for society as whole- reflects modern views
• Disagreements: legal definition of M is between man/woman
• COE concerned it changed definition as outlined in Christian teachings
• Some thought bad for society
• Strasser said wouldn’t threaten traditional institution of M- there is no single purpose of M
• Note: although some see M as icon of equal rights, others view it as a patriarchal monolith to be avoided in
favour of more diverse/egalitarian ways of living, or see it as irrelevant
• but study found 81% of those considering legal commitment to same-sex relationships would prefer M
• only 6% favour CP
• Lind says gay M goes further in creating demarcations e.g non-monogamous relationships etc
• but said goes some way to addressing patriarchal nature of family regulation
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,FAMILY NOTES
• Note: Eng/Wal & Scot are only jurisdictions on planet where same-sex couples are privileged over opposite
sex- coz they have M & CP! But one report showed 20% of straights would prefer CP!
• 2013-2014 number of Cps formed down 82%
GENDER
• Human rights arguments have been used to extend legal conception of family
• GRA 04 now provides for trans people to have their preferred gender recognised for all purposes
• in early unsuccessful challenges pre GRA, Martens J dissent in Cossey v UK 93 M about more than sex &
procreation- societal bond- traditionally marriage void if not man/woman: Corbett v Corbett 71
• Note: w.o certificate of gender recognition, gender determined in biological sense. Chromosomes, genitals,
ignore any operationsCorbett v Corbett 71
COHABITATION
• General trend= M down, Cohabitation up (esp. among younger people)
• 2001, 2mil cohabiting couple families -> 2.9 mil 2013
• often as prelude to M but more and more not marrying at all
• data suggests cohabitants’ relationships less stable (2000)-95% of mothers married at birth of child still with
father 3 years later, only 85% for cohabitants
• Note: 2009 study showed 51% people still wrongly believe there is such thing as common law marriage which
gives cohabitants some rights as married couples
• We still have no special legal regime for co-habitants- very behind rest of world- use general law!
• Scotland have specific regime
• It is often children that suffer in event of separation etc- German Consti Court says this is indirect
discrimination of children and so law had to change
• e.g Burns v Burns 84 couple lived together 20 years- 2 kids but house in man’s name- split up- all she got was
washer-dryer she had bought (despite having cared for kids etc)
• Many statutes refer to couples who ‘live together as if husband/wife/CP’
• test in Crake v Supplementary Benefits Commission 82 factors like same household, stability, financial
support, sex, children, public acknowledgement
• Nutting v Southern Housing Group 04 ‘lifetime commitment to permanence’
• but concerning that people continue to organise their lives oblivious to legal implications
• some think educating people about law is best policy- have been attempts but not very successful
• ECHR jurisprudence has endorsed UK’s separation of M & Co- habits- justified to protect traditional concept
of family
• BUT ‘restaurant of life analogy’- ‘just because don’t want champagne (M) doesn’t mean you don’t want rest of
meal (other legal rights/responsibilities)
• Marriage Resource & Evangelical Alliance against reform- think will undermine institution of M- but
evidence suggests law will have little effect on what people choose (e.g current situation!)
• LC in favour of reform & statutory remedies for co-habitants- need to react to factual reality
• LC says particularly need reform in relation to children
• could have opt-in or opt-out schemes- LC favour opt-out
• better because opt-in means dominant person in relationship could control- if opt-out people will just accept
• BUT may put pressure on couples?
• Probert says M/CP already opt-in= demand for alternative quite low- can normally cover yourself with
contracts etc
• BUT it is ignorance which is problem- hence opt-out would help
• Burden and Burden v UK 07: sisters living together- challenged Eng tax law under Art 8/14
• argued discrimination because can’t formalise their relationship- argued loving, committed, stable, long-term,
shared household- sex shouldn’t matter because unnecessary for CP/gay M
• BUT failed- took v formalistic view- not M/CP therefore shouldn’t be treated as such
• identified traditional reason for M= pro-creation & M being best to raise kids- v out of date
• other reason: mutual support- applies to cohabitants too
• Few laws have been interpreted as applying to platonic/non-conjugal family
• domestic violence legislation does apply; ‘associated persons’ FLA 96
• BUT seems sex is at centre… makes them cohabitants
• Diduck says should take purely functional approach
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, FAMILY NOTES
• In Belgium can enter CP with anyone- is asexual- just gives tax benefits and certain care allowances: need
incentives for caring etc- ageing population!
• Slippery slope to polyamory? BUT why not? if people want live their lives like that shouldn’t we at least
regulate it?
• NSW Aus have legislation for ‘domestic relationships’ since 1999!
• All sorts of different living arrangements these days…. e.g 10% of British adults ‘live together apart’- Kotke v
Saffarini said this does not equal cohabitation
STATS
• Average age of M= 36.7 years men & 34.3 years women (2013)
• Re-marriages down- only 15% of Ms
• First-time M’s up from 58% to 67%
• Factors affecting= easier immigration, econ downturn 2008-2009, marriages abroad etc
A RIGHT TO MARRY?
• Right to marry in art 12 ECHR
• Johnston v Ireland 86: said no right to divorce
• F v Switzerland 87: ‘any restrictions on access to M must not restrict/reduce the right in such a way or to
such an extent that the very essence of the rights is impaired’- said bar on re-marriage violated ECHR
• Note: recent cases have considered what is effectively right not to marry- e.g capacity issues
RIGHTS-BASED APPROACH
• Family law switches between rights-based and welfare-based approaches- tension between rules-based system
& discretion-based system
• Originally dominated by rights (mainly of husbands and fathers) then in 20th century move towards welfare,
now rights-based model doing battle with welfare approach
• ECHR & HRA mean rights-based focus now inevitable
• Art 2 right to life & Art 3 (torture/inhuman/degrading treatment)- relevant to child protection
• Art 6 obviously for disputes
• Art 8 respect for private and family life, home & correspondence
• only respect for existing fam relationships, not prospective ones: Fretté v France
• qualified i) in accordance with law ii) pursue legitimate aim in 8/2 iii) be necessary in democratic society
(proportionality)
• Art 12 right to marry and found family
• Art 14 non-discrimination (only with regard to other convention rights)
• Hale has described as ‘essential to democracy’
• return to rights-based approach gives previously excluded groups a more promising position from which to
argue for change- BUT not unanimous support
• some conservative groups think will undermine traditional family unit/values- coz focusing on individual
family members
• some think individualistic focus inappropriate when dealing with family e.g Fartin concerned that children’s
interests will be marginalised at expense of parents
• but Dewar argues rights-based will lead to more principled outcomes
• ECHR is a floor-minimum standards - national law cannot go below
• R(Ullah) v Special Adjudicator 04 ‘duty of national courts to keep pace with the Strasbourg jurisprudence
as it evolves over time: no more, but certainly no less’
STRUCTURE FOR ART 8
• Is an Art 8(1) right interfered with?
• interference in accordance with law? (if not, breach)
• does interference pursue legit aim listed? (if not, breach)
• is interference necessary in a democratic society? (if not, breach)
• Pressing social need? Relevant/sufficient reasons? Proportionate?
STRUCTURE FOR ART 14
• Does case fall within scope of at least 1 Convention right?
• difference in treatment between C & others in comparable situation?
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