Law Express Question and Answer: Family Law(Q&A Revision Guide) Amazon ePub

Jonathan Herring

• Publisher: Pearson
• Year: 2014
• ISBN:
  9781292063706
• Edition: 2

From the BESTSELLING Law Express revision series. Law Express Question and Answer: Family Law is designed to ensure you get the most marks for every answer you write by improving your understanding of what examiners are looking for, helping you to focus in on the question being asked and showing you how to make even a strong answer stand out.

Chapter 1

---

Themes in family law

How this topic may come up in exams

Family law exams often contain essay questions which raise general themes in family law. These do not fall within a particular topic, but require you to show a good knowledge across the subject. Students can find these questions rather frightening. They are not quite sure what the examiner expects and it may involve thinking about questions which they have not considered before.

The good news is that examiners realise that these broad questions can be hard to tackle and so can be generous when marking them. Even more good news, there is usually no right way of tackling these questions. Examiners usually don’t expect a particular structure or list of topics. Indeed, you are expected to come up with your own way of dealing with the questions. That might sound scary, but it means you can’t really go wrong!

It may help if I give you an example. Let us say there was an essay asking you to discuss whether family law should used fixed rules or a more discretionary-based approach. There are many topics you could discuss: financial orders on divorce; the welfare principle; child protection etc. Well, the good news is that you can choose which topics to focus on. The examiner will not mind which ones you use as long as you discuss them in a way which answers the essay question.

I would suggest that with this broad essay you start by discussing some of the general themes raised by the question. Then look at two or three particular issues and see how your general discussion relates to concrete scenarios.

Attack the question

A printable version of this diagram is available from www.pearsoned.co.uk/lawexpressqa

Question 1

What is a family for the purposes of family law?

Answer plan

• Explain how family law used to centre on marriage.
• Trace the way that there has been increased recognition of cohabitation.
• Discuss the growing acknowledgement of same-sex couples and their legal rights.
• Set out the growing importance attached to parenthood.
• Consider alternative ways of looking at families.

Diagram plan

A printable version of this diagram plan is available from www.pearsoned.co.uk/lawexpressqa

Answer

The traditional focus of family law was marriage and the legal consequences of marriage. However, as we shall examine in this essay society and the law have moved well beyond that narrow understanding. Rates of cohabitation outside marriage are increasing and same-sex relationships are now accorded virtually all the same legal rights as opposite sex couples.¹

Looking first at the case law in 1950 in Gammans v Ekins [1950] 2 KB 328, it was said to be ‘an abuse of the English language’ to describe a cohabiting couple as a family. A court would never take that line today. In Fitzpatrick v Sterling [2000] 1 FCR 21 two men (Mr Thompson and Mr Fitzpatrick) had shared a flat for 18 years in a gay relationship. The House of Lords were asked to rule whether they should be regarded as a family for the purposes of the Rent Act 1997. Lord Slynn firmly rejected the view that only married couples or those connected by blood could be family members. He, instead, 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’ and that the relationships should not be ‘transient’. Applying these criteria to the case at hand the majority of their lordships were able to conclude that Mr Thompson and Mr Fitzpatrick were indeed members of a family. However, their lordships rejected a view that the couple should be seen as spouses or equivalent to spouses.²

The significance of this decision is that the House of Lords no longer saw the hallmark of a family in terms of formal status: marriage, parenthood or blood tie; but rather in the nature of the relationship: is there mutual caring and love? This shift being based on relationship rather than status or form,³ has been a consistent theme in recent case law on the meaning of family.

Fitzpatrick v Sterling also heralded increasing acceptance in family law of same-sex relationships. It has been followed by two major developments. First in Mendoza v Ghaidan [2004] UKHL 30, it was held that a same-sex couple could be treated as living together ‘as husband and wife’ for the purposes of the Rent Act 1977. Notably the House of Lords in reaching this conclusion relied on the Human Rights Act 1998,⁴ arguing that the law must not be interpreted in a way which discriminated against same-sex couples. Second, the Civil Partnership Act 2004⁵ has enabled same-sex couples to enter a civil partnership which has virtually all the legal rights of marriage. Indeed the President of the Family Division has described it as ‘marriage in all but name’ (Wilkinson v Kitzinger [2007] 1 FCR 183).

So we have now reached the position where the law is willing to recognise as a family a couple living together in a mutually interdependent way, even if they are not married and even if they are of the same sex. In 2013, the Government introduced the Marriage (Same Sex Couples) Bill which will allow same sex couples to marry. Although it cannot be guaranteed that the proposed legislation will be passed, if it is it will complete the full integration of same-sex relationships into family law.

Some commentators (e.g. Dewar (1998)) have argued that over the past few decades we have witnessed a shift away from the primary obligations for family law focusing on marriage or cohabitation, towards parenthood. Increasingly the legal consequences of the end of a relationship depend on whether the couple have children, rather than whether the couple are married on not.⁶ This is particularly so following the Child Support Act 1991, where the support obligations apply to married and unmarried parents alike. There are certainly some cases where the marital status of the couple is very important in financial cases, but for less well-off couples, the central issue is often child support, rather than spousal support. The point can also be made that while in the past textbooks on family law were dominated by the law of marriage, nowadays there is more focus on the children.

It will be interesting to see where the future understanding of families goes. Consider, for example, Burden v UK⁷ [2008] ECHR 357 which involved two sisters living together for over thirty years. They were not permitted to marry or enter a civil partnership. They claimed that this disadvantaged them, especially in terms of inheritance tax. They argued that their relationship was exactly the same as any other couple, save there was no sex. So should the sexual element really have a significant impact on the legal status of the relationship?

Some commentators (e.g. Fineman⁸ (2004)) argue that the focus of family law should be on relationships of care, rather than relationships involving sex or blood ties or marriage. That might bring within the idea of a family an adult looking after an elderly parent or a person looking after a disabled adult. Fineman (2004) makes the powerful point that it is caring relationships which really help society and contribute to it, rather than sexual ones. That might mean that a marriage between two healthy employed people without children would not be a family, as there is no caring or dependency relationship. That would be quite a turn about for the law to take!

To conclude, we are witnessing a change in the understanding of the family. In the past it was determined by status: were a couple married or not? Increasingly the law’s focus is on the nature of the relationship: were the couple dependent on each other; are they living mutual lives? The shift should not be exaggerated. Where the couple are married it is highly unlikely that at the moment the law would say they were not family, because they did not love each other. The law, however, now recognises that there is a wide range of ways of ‘doing family’ and there is no rule book you have to follow.⁹

¹The examiner will like the fact that you are emphasising that we are not talking about just a change in the law, but also a change in social attitudes. Changes in the law to a large extent reflect changing social attitudes.

²This is an important point to make, because it shows that the decision is not quite as liberal as might at first appear.

³The examiner will like you drawing the distinction between formal status and relationship. This is a major theme in the academic debates and it will show you have understood the material on this.

⁴It is important to show the examiner that you are aware of the context of a decision. Noting that in Fitzpatrick the Human Rights Act was not yet in force shows that you are aware that the Human Rights Act can make a significant difference to how the law develops.

⁵When thinking about changes in family law the examiner will expect you to consider both changes by statute as well as in the case law.

⁶This shift from the focus of the law on ma...