Beginning Family Law

Jonathan Herring

• Verlag: Routledge
• Jahr: 2015
• ISBN:
  9781317676454
• Auflage: 1
• Thema: Law
• Thema: Family Law

Whether you're new to higher education, coming to legal study for the first time or just wondering what Family Law is all about, Beginning Family Law is the ideal introduction to help you hit the ground running. Starting with the basics and an overview of each topic, it will help you come to terms with the structure, themes and issues of the subject so that you can begin your Family Law module with confidence.

Adopting a clear and simple approach with legal vocabulary carefully clarified, Jonathan Herring breaks the subject of family law down using practical everyday examples to make it understandable for anyone, whatever their background. Diagrams and flowcharts simplify complex issues, important cases are identified and explained and on-the- spot questions help you recognise potential issues or debates within the law so that you can contribute in classes with confidence.

Beginning Family Law is an ideal first introduction to the subject for LLB, GDL or ILEX and especially international students, those enrolled on distance learning courses or on other degree programmes.

Visit the companion website: http://www.routledge.com/cw/beginningthelaw/

Chapter 1 An introduction to family law

DOI: 10.4324/9781315771793-1

For most people their relationships and their families are the most important part of their lives. Nothing can bring greater joy than a happy relationship. Few things can bring greater misery than a relationship that goes wrong. Family law, therefore, deals with hallowed ground; the most sensitive issues in people’s lives. It is not surprising then it is highly controversial and raises issues of considerable significance.

This book will seek to introduce you to the fascinating world of family law. On its own, it will not provide you with enough information to get a first in your final exams! However, it will start you down the road to doing really well in your work on this topic. The book provides you with an introduction to the key legal principles; the main cases and important pieces of statute that you need for family law. It will lay the foundation for a successful study of family law.

One of the joys about family law is that generally the facts of the cases are easy to understand. The cases do not involve complex financial arrangements you have never heard of, or dense corporate structures that make no sense. Rather we are entering the world of love, heartbreak and the chaos of human relationships. That makes the cases more interesting! It makes it easier to get a handle on the subject and therefore to do well.

The Structure Of The Book

We start, in Chapter 2, with marriage and civil partnership. As we shall see, marriage has long been regarded as at the heart of family law, but that idea is increasingly coming under challenge. Many couples choose to live together outside marriage. Even for those who do marry, the precise meaning of marriage is unclear. As the debates over same-sex marriage demonstrate, there is considerable uncertainty over the extent to which marriage is a religious, patriarchal or individual institution. Chapter 3 turns to cohabitation, a popular form of relationship for many couples. It gives them freedom to enter or leave without involving courts. But with that freedom comes considerable problems. It means a person can suffer serious financial disadvantage as a result of a relationship, but receive no compensation from the other person. A cohabitant, under the current law, is taking a huge financial risk in deciding not to get married.

In Chapter 4 we discuss divorce. Traditionally the law has sought to uphold marriage by only allowing divorce where something has gone seriously wrong in the marriage. Divorce law has moved on. It is now recognised that by the time people seek a divorce, any hope of saving the marriage has passed. Indeed the question is now regularly asked, if a couple recognise that their marriage has come to an end, should the law do any more than give them what they want? Telling the couple that their relationship is not “that bad” and they should stay together seems very paternalistic. As we shall see there is even a suggestion that divorce should become “on demand” through a computer programme.

In Chapter 5 we turn to a common cause of divorce: domestic abuse. This difficult but extremely important issue has troubled family lawyers for decades. In the past it was dismissed as a private matter, best left to the parties to resolve themselves. Now it is recognised as a major social problem and it has attracted considerable attention. There is still much work to be done to find an effective response.

Chapter 6 looks at the issues relating to finance on separation. It is now common to read in the papers of wives of millionaires receiving extraordinary sums of money on divorce. This chapter will try and explain the thinking the courts use when producing these results. However, the chapter will also emphasise that for most people divorce produces poverty, especially for women. It is not always the windfall the media sometimes portrays it to be.

So far you might be forgiven for thinking we have forgotten the most important people in family law; the children. Don’t worry – the rest of the book will focus on them. Chapter 7 looks at the definition of parent. How do we decide who will be given the status of parenthood and the authority to make decisions in relation to a child. In the past the question “Who is the parent of this child?” was relatively straightforward. But in this age of sperm donor, multiple family breakdown and same-sex parents, the issue has become far more complex.

Chapter 8 looks at the position of children’s rights. To what extent should children be able to make decisions for themselves? Is it best to choose an age at which children are deemed mature enough to make decisions or should we test children to see how intelligent and sensible they are? How can we balance the rights of parents to make decisions about children with giving respect to children?

Chapter 9 looks at the issue of child abuse. How serious does abuse have to be before a child can be removed from their parents? Some have suggested that we need to recognise that not every child can have a perfect parent and so we have to be tolerant of a wide range of parental qualities and only remove children when there is appalling abuse. But does that protect children adequately? And what are we to do in cases where there are suspicions that children are being abused but there is no clear evidence to prove it? These are enormously difficult questions and give rise to some of the most troubling cases in family law.

Chapter 10 looks at the question of adoption. What needs to be shown before a child can be adopted? What should the relationship be between an adopted child and her birth family? We will also look at the concept of special guardianship, which provides a long term carer for a child, without severing completely the links between the child and the birth family.

Reading Family Law Cases

Most people study family law in their second or third year when you will be familiar with how to read a case generally, so this section will focus on the particular issues that are raised in relation to reading family law cases. The first point to note is that the facts of the cases can be really interesting! Indeed there is a danger that you will get so caught up reading the facts that you will lose sight of the key legal points. It is understandable if the case is emotionally engaging, but do not let this prevent you from making an intellectual assessment of the decision.

A second point is that many family law cases depend on their particular facts. A case on a dispute over children may tell you about how the court decided to resolve the dispute for that particular child in that particular family. Rarely do family law cases establish rules that you can automatically apply in a particular case. Most family law cases are used in exams in one of two ways. First, it might be used as an example of the tensions the law has to deal with and how the law needs to balance competing interests. Second, it might illustrate one factor that can be used in deciding a case. So, you might not in a problem question be able to use a case to establish a rule. For example, you might say in a criminal law exam_ “In the case of R v Cunningham the Court of Appeal established that the mens rea for murder is an intention to kill or cause grievous bodily harm.” In many contexts in family law you cannot use a case in that way. In a family law problem question it is more likely you would say: “One factor the court will take into account is the fact that generally it is seen as good that a child keeps contact with both parents; see, for example, Re W (Children).”

A third point is that family courts tend to be very aware that in many cases a range of acceptable results might be taken. If the appeal court is persuaded that a judge took into account all the relevant factors and produced a reasonable conclusion it will uphold the judgement, even though the court itself might have reached a different conclusion. Your answer in an exam might, therefore, quite properly refer to a range of orders that a judge might sensibly make. In short, in family law, there is often not a clear right or wrong answer.

Statutes

Statutes play a part in family law as they do in nearly all areas of law. However, statutes in family law tend to be slightly different from other areas of law. For example, the Theft Act 1968 defines the offence of theft. It lists the five elements that need to be proved and explains what those elements mean. In family law a statute will often state a general principle and list factors that can be taken into account. For example, s 1(1) of the Children Act 1989 states that in resolving disputes over the upbringing of a child, the child’s welfare should be the court’s paramount concern, although it then, in s 1(3), provides a long list of factors that should be taken into account in deciding what is or is not in a child’s welfare. The statute does not, however, seek to define what welfare actually is.

This means that in a problem question in an exam it is not possible to give a definitive answer as to what order a court can make. You should go through each of the statutory factors and explain how either side might want to rely on that factor. Although you cannot say for sure what a court will order, it is a good idea to indicate how you think the factors will be weighed.

Family Law Essay Questions

Essay questions in family law typically ask you to consider not only what the law is, but also the theoretical issues surrounding the law. You will need, therefore, to learn not only what the law is, but also why it is the way it is; what social changes have influenced the law; and what broader policy issues are at play.

One trap, however, that some students fall into is getting carried away by the emotions in a particular issue. Let us say, for example, there was a question on same-sex marriage. That may be an issue on which you have strong views. Beware of writing an answer that might work well as a Guardian or Daily Mail editorial (depending on your point of view), but that does not demonstrate to the examiner you are aware of the legal issues or the law. You should never write an essay that fails to mention a single case or a statute. While you need not shy away from making an argument, it should be rooted in a clear demonstration to the examiner that you understand the law, the leading cases and the important statutory principles.

A good answer will show knowledge not only of the case law and statute but also the academic arguments. Citing the views of academics and discussing them will prevent your answers becoming too “journalistic” and show the examiner your have read the material you have been set.

Family Law Problem Questions

Many universities use problem questions in an examination. You will already be familiar with these and have developed techniques to respond to them. There are, however, a number of issues that are particular to family law problems.

The first is that in many cases there is no “right answer”. The best you can do is to list the factors a court will take into account. You might predict what outcome the court could make, but you will want to make it clear that there is considerable judicial discretion in this area.

The second, flowing from the above, is that in many cases you can use the statutory framework to guide your answer. For example, in deciding what order to make in relation to financial issues on divorce, Matrimonial Causes Act 1973, s 25 lists nine factors that will be taken into account. You can go through each of these one by one. Cases can be referred to where the courts have placed particular weight on that factor or which have explained how it is relevant. Remember to not just list the factors but to apply them to the factors of the case. So do not just say “the age of the parties is a factor to take into account”, but rather say, for example, “the fact that Angela is 68 is relevant because she cannot reasonably be expected to find full-time employment at this point in her life and will be entering retirement. This means she will need income from her husband to support her in the future.”

Helpful Journals

Family Law provides some helpful summaries of cases and good short articles. It also carries up-to-date news on family law.

Child and Family Law Quarterly provides some excellent articles and detailed case comments.

Journal of Social Welfare and Family Law has some good articles on a broad range of issues relating to families.

International Journal of Law, Policy and Family has some fascinating articles on family law, often from an international perspective.

Some Helpful Websites

There are some excellent family law blogs including:

www.marilynstowe.co.uk/

www.pinktape.co.uk/

http://flwblog.lawweek.co.uk/

The following provides up-to-date news on family law:

www.familylawweek.co.uk/site.aspx?i=ho0

Chapter 2 Marriage and civil partnership

DOI: 10.4324/9781315771793-2

Learning Objectives

After reading this chapter you should be able to:

• understand the nature of marriage;
• explain when a marriage is void or voidable;
• appreciate the differences between marriage and civil partnership.

Introduction

This chapter will explore who can marry whom and the significance of marriage. It will include a discussion of the grounds on which a marriage can be void or voidable. It will also explore the introduction of same-sex marriage and the status of civil partnership.

Marriage has traditionally been at the heart of family law. However, it has come under challenge in recent years. First, there have been extensive debates over who can marry. In particular, there have been fierce debates over whether marriage should be permitted for same-sex couples. We now have the Marriage (Same-Sex Couples) ...