Family law Unit 17

Prepare your own definition of a family and answer the following questions Which elements should be taken into consideration when defining a family?  Do you think that the definition of a family has changed in recent years?  Do you know who can marry and who cannot?  Which rights result from marriage, and which from civil partnership? What do you think about marriage?

Read the text quickly and decide whether these statements are true or false 1. Marriage can be defined as a voluntary union for life of one man and one woman to the exclusion of all others. 2. Family can be defined as a group that generally shares the same residence. 3. A marriage is void if one of the parties did not give their consent. 4. Until 1969, matrimonial offences were the sole grounds for divorce in the UK.

Family Law Family law is an area of the law that deals with family matters and domestic relations, including: marriage, civil unions, and domestic partnerships; adoption and surrogacy, child abuse and child abduction. English family law consists of a body of statutes and case law that govern the legal responsibilities between individuals who share a domestic connection. These cases usually involve parties who are related by blood or marriage, but family law can affect those in more distant or casual relationships as well. A family can be defined as a primary group whose members assume certain obligations towards each other and generally share a common residence.

Marriage Lord Penzance gave the following definition of marriage in the case Hyde v Hyde and Woodmansee: ‘the voluntary union for life of one man and one woman to the exclusion of all others’. While it is true that in English law marriage must be monogamous and voluntary, it is no longer necessarily entered into by one man and one woman, as same sex marriage became legal in England and Wales with the passage of the Marriage (Same Sex Couples) Act in 2013.

Termination of Marriage  Marriage can be terminated by death or divorce and it can be annulled. It is important to appreciate the distinction between nullity and divorce (or, in the case of civil partnership, dissolution). Divorce entails the termination of what had been a valid marriage. Nullity recognizes that, for legal purposes, there never was a valid marriage. Within the law of nullity we distinguish between void and voidable marriages and civil partnerships.

Void Marriage The parties must be at least 16 years old. If one of the parties is younger, the marriage is void. If one of the parties is over 16, but under 18, the law requires parental consent. There are also rules prohibiting marriage between certain categories of persons (relationships of consanguinity and relationships of affinity), bigamy It means that marriage is void if parties are within prohibited degrees, if one of them already has a spouse and if certain formal requirements were disregarded.  

Voidable marriage A marriage is voidable if either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.   According to the Matrimonial Causes Act of 1973, marriage is voidable if there was lack of consent by either party, if either party was suffering from mental disorder, if the respondent was pregnant by a third party at the time of marriage, if the marriage was not consummated owing to incapacity of either party or the wilful refusal of the respondent, and on grounds relating to gender recognition.

Civil partnership According to the Civil Partnership Act 2004, a civil partnership is a relationship between two persons of the same sex (“civil partners”) which ends in death, dissolution or annulment. The principal distinction between marriage and civil partnership lies in the parties’ genders: spouses must be of the opposite sex, civil partners of the same sex. Same sex marriage also became legal with the passage of the Marriage Act 2013 Parties’ genders for these purposes are determined by biological criteria or, in the case of trans-gender people with a gender recognition certificate, by acquired gender.

Divorce Judicial divorce was introduced by the Divorce and Matrimonial Causes Act 1857. Until the Divorce Reform Act 1969 divorce was fault-based and matrimonial offences were the sole grounds for divorce. The Matrimonial Causes Act of 1973 consolidated the Divorce Reform Act of 1969 and clearly laid down that there is only one ground for divorce: that the marriage has broken down irretrievably.

Divorce The Matrimonial Causes Act stipulates that the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, which are:

Grounds for Divorce (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;  (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (unreasonable behaviour)  (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition (desertion);  (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted (2-year separation);  (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (5-year separation).

Divorce The Matrimonial Causes Act also stipulates that on a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent. According to the Act, it is the duty of the court to inquire into the facts alleged by the petitioner and by the respondent. However, since nearly all petitions are undefended, the respondent is silent and the contest is a thing of the past. The divorce decree is in two stages: the decree nisi and the decree absolute. The petitioner may apply for the decree nisi to be absolute after the expiration of six weeks, unless the court fixes a shorter time.

Domestic violence Violence can occur in many forms and it may cause the breakdown of a relationship, including family relationships. Domestic violence can be defined as any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. The definition points out that abuse may occur in many forms and that it is not restricted to people living together, but also includes violence between family members and intimate partners.

Domestic violence Under the Family Law Act 1996, the victim of domestic violence (the applicant) can seek a court order that the abuser (the respondent) does not molest them and secondly, that the molester leave and stay away from the family home. These are known as non-molestation orders and occupation orders.

Answer the following questions: 1.      What does family law deal with? 2.      How can marriage be defined? 3.      What are the requirements for a valid marriage? 4.      What is the difference between a void and a voidable marriage? 5.      What is the ground for divorce according to the Matrimonial Causes Act 1973? 6.      What must the petitioner prove to the court? 7. How can domestic violence be defined? 8.      What are non-molestation orders and occupation orders?

Complete the following definitions with one of the three terms: void, voidable or valid? A _____________ marriage is one which is in no sense defective and is, therefore, binding on the parties; it can only be terminated by death or by a decree of divorce. A _____________ marriage is not really a marriage at all, in that it never came into existence because of a fundamental defect. A ______________ marriage is a valid marriage unless and until it is annulled; it can be annulled only at the instance of one of the spouses during the lifetime of both.

Read the paragraph about domestic violence and supply the missing word:   Domestic violence can be defined as any incident of _____________________________ between adults who are or have been intimate partners or family members, regardless of ________________________. Abuse may occur in many forms and is not restricted to people living together, but also includes violence between ____________________________________. Under the ____________________ Act 1996, a victim of domestic violence (the applicant) can seek a court order that the abuser (the respondent) does not molest them (______________________ order) and secondly, that the molester leave and stay away from the family home (________________________ order).

Complete the table with words from the text and their related forms: VERB NOUN ADJECTIV E valid satisfy continuous presentation apply

Match the verbs in the left column with the nouns in the right column: to hear the court to commit the petitioner to satisfy a decree to grant adultery to desert a petition

DISCUSSION 1. Discuss the changes in the definition of marriage. 2.      Discuss what can be defined as unreasonable behaviour. 3. Write down your arguments for or against same sex marriage.

Research 1.      Prepare a 10-minute presentation about interesting marriage customs around the world. 2.       Find out more about the case Hyde v Hyde and Woodmansee and its implications. 3.       Find out more about the case Wilkinson v. Kitzinger and Others and its importance for same sex marriage legislation in England.

From the Family Law Act 1996. An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling-house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes. [4th July 1996] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part I 1 The general principles underlying Parts II and III. The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles— (a) that the institution of marriage is to be supported; (b) that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage; (c) that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end— (i) with minimum distress to the parties and to the children affected;

PART I (ii) with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and (iii) without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and (d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.

Answer the following questions: What does the Family Law Act regulate? What are the parties to a marriage which may have broken down encouraged to do? How should a marriage which has irretrievably broken down be brought to an end? How are children protected by this Act?  

Complete the text with the words from the box Complete the text with the words from the box. ground, facts, petitioner, respondent, divorce, defend Divorce under the Matrimonial Causes Act 1973 is granted on the basis of a petition where one party (the ___________) presents an application for __________ which the other party (the ______________) may choose either to ___________ or not. The sole      ___________ for divorce is   that the marriage has irretrievably broken down. But the      only way of proving irretrievable breakdown is by proving one of the five ____________. If none of the facts is proved then a divorce cannot be granted.

DISCUSSION   1.      Discuss the ways in which the attitude towards divorce has changed in the last 50 years. 2.      Discuss how the rights of children affected by divorce are protected by the Family Law Act.

Research 1. Find out more about the divorce rate in Croatia and other EU countries. 2. Prepare a 10-minute presentation about the rights of children guaranteed by the Children Act 1989 or the Convention on the Rights of the Child from 1989.