Family Law - Marriage - Essay Example

Unit: Instructions: 1st Task: 300 words on the following question: "Is marriage an out d " According to physiology today website, Marriage is simply making public a relationship of two individuals who love one another and are willing to relate for life, and to make their union official. Off-late though, the trend of permanency in the marriage has been diluted because of an increasing trend of divorce among couples because of different challenges they face when they relate in the institution of marriage1. Therefore now begs the question why would one marry. Physiologists believe that marriage is a link to mental balancing and physical health. Family fact organization site believe that marriage couples tend to have lower mortality rate, financial stability and general physiological well being. That means marriage can make one better wealth accumulator. All this benefits of marriage must have culminated from some factors found in a healthy marriage only. Marriage couples enjoy sex to the fullest than their counter parts who cohabit, because of the legality of their union. They are not worried when making love as their counterparts who are very conscious lest they cross boundaries of the “illicit sex”, example impregnating. According to studies marriage women are healthier physiologically and physically, feel more secure, increases influence, and couples tend to report lower level of depression and are less addicted to substances. The biggest disadvantages of marriage, both parties are core owners of their wealth. This means if one chooses to go, the wealth will be shared between the two parties2. In conclusion, weighing cons and pros of marriage, it is moral to support its institution because of its advantages which outweigh the cons of marriage, and who doesn’t want to be wealthy? 2nd Task: 300 words on writing "a newspaper article taking a 'pro' or 'anti' same sex marriage position". An American humorist, writer and a lecturer Mark Twain (1835-1910), was quoted saying “..Do the right thing it will gratify some and astonish the rest…” I agree with him on that point because right things gratify but wrong things are bound to increase debate because they lack specific demarcations. A cup for tea, gloves for the hand and goggles for the eyes, nature has shaped them and if by any chance they are used for any other purpose, they do not fit and the user may be termed as persons with mental depravity. Same sex marriage is not the issue; the issue is the sex itself. This is not about religion, or politics. This is the argument of reasoning. It goes beyond the Hawaiian constitution, for democracy is a say of the majority but that cannot overrule the truth and the fact of nature3. From researchers gay couples are obviously unfaithful to their spouse compared to the straight ones. They are poor parents, and their sexual pleasure and fantasy is far much brutal and uncontrollable. In other words gay marriage is legalizing some sort of future sexual offenders. HIV is also rampant to the gay community because of these very same facts they emphasizes on sex not family. If it has no benefit to society, it therefore of no reason whatsoever to be legalized in the institution of marriage because it fail the test marriage4. I don’t know what the drive for same sex union is, but no matter the justification of it, there is nothing like same sex marriage. In my opinion legalizing a social sickness is legalizing a global confusion and judging them is not healing them. The main point is, same sex marriage does not exist, but the homosexuals and gays need counseling, accommodation and tolerance but not marriage. 3rd Task: 300 words abstract for the following essay: "To what extent does the law governing the allocation of parenthood successfully accommodate the diverse ways in which people become parents today?" In this context, presumably parenthood allocation means child custody and control giving the parent the power of right and responsibility. According to many state laws, a person with custody of a said child has the legal, physical control and right over the child. In a proceeding the court of law can allocate responsibility for the child in six different way so that to accommodate the diverse ways in which people become parents today. The first way is sole custody. This custody enables one of the parents to have legal and physical custody, of the said child. This is mostly fit to divorced parents and a child depends on one parent solely for a living. In some cases where the parent are separated but the child or children are comfortable with both parents, special arrangement can be provided by a court of law to allocate custody of the child or children in a quantum of time for each parent. Each parent has sole authority over the children5. Bird’s nest custody; a court of law may arrange for random visitation of parent to the resident of the said child or children. This heaps the burden of movement to parents and not children. Joint custody is given to parent where both have physical custody and legal custody over the children or child. Split custody is granted where each parent is given custody over some children and also the other parent has been accorded the right over the remaining set of children. In case of parenting from the third parties, the law grants third-party custody full custody to the child. This can happen if the children both parent are in cable to take care of the child or they are either dead or unknown. The above ways are provide by law to guarantee successful parenthood according the changing living condition of the society keeping in check the children welfare and also the parents. 4th Task: Case commentary (1250 words) L v P [2011] EWHC 3399 (Fam) Introduction In 28th July 2011, the court made a ruling, a ruling over a case where a 15 years girl refused to undertake DNA test that the father had applied according to the declaration under section 55(a) Act 1996 of the Family Law. The father’s plea was rejected citing that the child had a competent point. The legal impact would have a financial issues to the Father since was to settle maintenance arrears of up to ?20,000. Here begs the question was the judge right giving his judgment? Was it just to center the judgment on the girl, refusing to honors the fathers plea? Was the law justified to grant the child wish? What were the criteria used by the court of law to come up with this judgments? Did the child welfare taken in consideration before making the judgments? Was the law bias? Did the child’s argument carry any significance to allow the ruling in her favor? Did she understand the consequences of her actions? Did the court investigate the real motive behind the girls wish? As we do the case study we may come with a concrete answer to these questions6. History The case involved a father contesting paternity after the issuance of an application by the mother for child maintenance. The arrears had mounted to twenty thousand pounds. In that case the Mother could not have substantial power to object the child DNA test. Therefore the 15 old child was the central subject of the whole application. This is because certainly her mother’s objection would have overruled, therefore Leaving the child decision to determine the fate of the case. In the Law it will be regarded the child paternity to be confirmed but only to the best interest of the child according to Family Law children Act 19897. The case was transferred to the High Court after appointing a guardian for the child. Basing the case in Part 3 of the Family Law amendment, the case was heard and Mr. Justice Hedley Ruled in favor of the child. He cited that the girl was ‘Gillick competent’. Gillick competent is a legal terminology which includes all young people up to the age of eighteen. Every child above 16 is usually deemed to be automatically Gillick competent; otherwise they can deem a child less than sixteen also Gillick competent8. Gillick competence means that the young person understands the implications and the problem at a stake, understands the magnitude of the risks and benefits thereof, understand the aftermath if not treated, understands the other options, understands the weight on the family, the child is able to remember the information, the child is able to weigh the advantages and disadvantages and is able to communicate the thoughts about their wishes. The judge commented about the child Act saying that it ‘respects the right of children to resist certain types of medical assessments and recognizes that it can be unwise to compel these matters upon old children which, were it compelled upon a younger may not present a significant problem. Taking the child’s interest and will, and having considered may be the father may not be biologically the father of the girl, the judge, laying away the father plea, decline to order the test to be carried, because the child’s arguments carried enough evidence to deny the plea. Her argument based on the idea that the outcome may jeopardize her relationship with the both parent since she would feel she was lied to. Therefore weighing the effect of the test physiologically and socially, the judge decline to give the order9. Analysis Court’s Analysis; According to English law, when a case is filed that affects them; the will of the child will take supremacy. The welfare of the child is the law, and at no circumstance they can be undermined. Everything presented on that court that contains a child must be aligned to welfare of the child according to family Law Act 1989. Otherwise all other family member interest is irrelevant if they contradict these welfare and statutes. In that case as quoted in Marylyn Stowe insight, Mr Justice Hedley said that, a substantial part of reasoning is rational and cogent and reflects a degree of maturity and understanding which compel respect. To that one must also add that were in which she wished consent, she would undoubtedly be treated as wholly entitled to consent, irrespective of what anybody else chose to say10. Though the Father had a point to ask for the plea, the judge taking into account the implication into the childs welfare and concerns, gave the ruling in favor of the girl. This is in line with the children Act 1989. My analysis; according to the way the court handle the situation, I agree with the judgment though many questions still lingers in my mind. The child welfare was taken into consideration regardless of the consequences that would have befallen the parents. In my view maybe the Father might have known a long time the child is not his but did not settle the matter then, and now because the shovel was against him, he wanted to willfully embarrass the child and the mother before the court of law. Secondly, the knowledge of the real parents was not to her interest and therefore there was need whatsoever the court could have overlook that fact. If the father lied to the child that he is the legal father, it was right for him to take full responsibility. Conclusion; In conclusion, according to the principles and concept of the Children Act 1989, the Court will only make an order if it is better for the child than making no order. Consideration of the welfare shall checklist assists the Court in making this decision. The provision still state in clause 1.5, in all cases when the Court determines any question with respect to the child's upbringing, the child's welfare shall be the paramount consideration. According to these principles, I support the court ruling on the case for they placed the child’s welfare regardless of many questions that would have risen. 5th Task: Essay (1350 words): "Critically evaluate the Government's proposed options for legislative reform to promote shared parenting" Introduction The government has proposed to amend the children act 1989 so as children would benefit from the constant involvement of their parents, where it is safe and for their good and best interest. This is clearly drawn from the government legislative objective launched on 13th June 2012 and responded by 5th September 2012 by the Ministry of Justice. According to the government this amendment were necessary because even though the majority of separating parents agree on some matters about their children care, when there arises dispute about these memorandums the child welfare is overlooked. In many cases one parent is denied parental influence on their child or children. This forced the government to come up with this amendment because of the firm belief of the government to protect the parent who is able and has the will to play a positive influential role and give the parent a legal ground to do so11. The proposed amendment wants to empower the courts to reinforce the expectation that the children’s parents are constitutionally responsible to the upbringing. This amendment is due according to the government to ensure that tougher engagement of the law if the provided terms are breached, and intend to use other explore able means for additional enforcement sanctions to be accorded the courts. The additional enforcement includes options and questions on the way the court will handle family cases which regard the child/children to be effectively enforced12. But these stated amendments have not ‘gone well’ with some quarters in the society and public at large. In this passage we are going to critically evaluate the proposed amendment and weigh its weakness and strength and then give the recommendation for the above case study. The Strength of the Amendment To evaluate this amendment critically, first of all the strong point of the proposed amendment should be weighed against the weak points. Good amendment should achieve the intended purpose by implementing the “how’s to do”. By soberly reading the government objective of the amendment it is clear that; The amendment seeks to promote shared parenting. This is consistent with the private law reform. The reform standpoint is, the parent should strive to settle their disputes out of the courts, using the available support to reach supportive, cooperative, and child welfare focused agreements thus promoting parental positive involvement in the child’s life. This is to say the government is looking at other ways of clearly solving those disputes and the court to be the final arbiter13. Online support are to be implemented by the end of the year 2012 to achieve the above, which will provide diagnosis and help for parents intending to separate so that they can understand their children’s primary needs. This system will also help them to resolve disagreement, and channeling them to appropriate services which are designed to help the separation and divorce complications. Incase parents do not want to come to court but have disputes about children, property or finances due to divorce and separation issues, and yet still requires further support, the Mediation Information and Assessment Meeting (MIAM) is brought in as the next stage. MIAM is an impartial mediator that provides discussion which aid parents with relevant information on how to handle disputes arising from divorce. With this amendment attendance of MIAM will be a prerequisite for making any applications in the court of law. Presently it is expected the parent who wishes file a case or a proceeding is supposed to first attend MIAM, however this has not been so to all the courts therefore the government wants to ensure that MIAM is not by passed by making sure that evidence of attending to MIAM is presented before any court seating. The government from this proposal is aiming to scrap the existing “Child Arrangement Order”, so that the child attention should be given the priority instead of winning and losing battle of the parent. With this effect it is clear that the government has a strong argument why this amendment should be effected and shows its obligation to protect the children welfare in the expense of the parents. Loop Holes in the Proposed Amendments. The proposal has some weak points; first it shows no evidence of the courts not fulfilling its fundamental principles of protecting the non-resident parent. The children Act 1989 has already put in measure ways of prioritizing child needs and should be paramount in child up bringing. Family Justice Review’s has clearly stated that “..Courts start from the principle that contact with both parents will be in the interests of the child, unless there are very good reason to the contrary…” This shows that the government objective for amendment is solely null since the provision is already catered in the children Act 1989. The government option 1, 2, and 3 may be against the child’s own feeling and wishes. A child may want to relate with one parent against the other and if a legal process may assume the need of the child and allocate time for the parties, may undermine the child wish and feeling at a specified time14. The general population may inaccurately interpret the expectations. The term such as in Option 1“ Involvement in the child up bringing’ , option 2 ‘ the fullest possible involvement’ and option 4 ‘the best relationship possible’, may be interpreted as per time factor (i.e. time spent with the children ) instead of its quality, which are not the real intention of the government. Impact assessment of the reform; the government has not accompanied the proposal with impact assessment. If the government has not done enough Impact assessment, it may have a negative impact of financial, legal and social welfare of the concerned parties. Recommendation The government should not try to promote cooperate parenting while disregarding the child’s feeling and concerns. This will jeopardize the effort of promoting children welfare. The option 4 is highly recommended because this will foster relation in the expense of time. for thus the populace will not likely to mis-interpreted it in the context of time. The government should provide robust, comprehensive impact assessment before publishing its proposals. The social factor, legal and finance cannot be overlooked while doing such an amendment15. Conclusion The proposed amendment has a good faith to the general welfare of the children and the separated parents. This will help the concerned parties to resolve their disputes outside the courts and to be advised appropriately how to deal with issues which arise due to separation. The children welfare is taken into consideration though they may be wrongly interpreted. The fourth option of the amendment fosters relationship which is essential in upbringing the children. The government should attach the impact assessment to their proposals so that the legal, social and financial impact can be assessed. Cited from “Shared parenting consultation…“ Ministry of justice.2012. print Nexis, Lexis, British Columbia Family Law Practice: Canada,2012, Print Weisberg, Kelly, D. 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