Family Law has Evolved to Suit Modern Society - Essay Example

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Essay Topic: Family Law Has Evolved to Suit Modern Society. However it Still has Further to Evolve. Family law has continued to evolve in England and Wales with significant changes introduced in 2005.1 The Civil Partnership Act 2004 came into force in December 2005 as well as the Adoption and Children Act 2002…
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Family Law has Evolved to Suit Modern Society
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Download file to see previous pages However, the Law Commission’s paper recommending reformations that would govern the distribution of property between cohabitants upon the breakup of the relationship3 demonstrates that Family Law in England and Wales has still further to evolve before it can be consistent with modern society. The Law Commission’s paper identifies a crucial inconsistency between British Family law and modern society. The reality is families are formed without the benefit of a solemnized marriage in modern society, particularly between same sex partners. These families start out like any other family intending to make their lives together indefinitely and by making this commitment they raise children together and purchase property together. In other words, in modern society the structure of the family has changed dramatically.4 The introduction of the Civil Partnership Act 2004 grants same sex couples with the facilities to establish a partnership that is similar to a civil partnership and confers upon the partners specific rights and responsibilities that are commonly granted to married couples.5 However, there is no right to claim financial/spousal support upon the breakdown on a civil partnership.6 Beyond the 2004 Act, unmarried couples remain at a disadvantage in terms of settling property once the relationship comes to an end. This reality has led the Law Commission to refer to the concept of common law marriage as a “myth”.7 As Baroness Ruth Deech explains, the idea that there is a family institution in England and Wales referred to as “common law marriage” is “erroneous”.8 The judiciary does not have the authority to settle property or the rights of couples who have lived together for any period of time and have decided to end their relationship. The only recourse of cohabiting couples ending a relationship is to seek civil remedies relative to claiming property through litigation.9 For unwed couples who live together all questions relative to finances and property must be resolved by reference to the applicable property and trusts laws.10 It is unfortunate that unmarried couples are denied the opportunity to resolve the financial issues arising out of the breakdown of their cohabitation when modern society demands that they do. Samantha Singer explains that public opinion is on the side of granting unmarried cohabitees the same property rights as married couples. For instance, British Social Attitudes Survey conducted in 2006 revealed that most members of the public are of the view that “cohabitants should have access to financial relief on relationship breakdown”.11 A more recent study on unmarried cohabitees in 2007/2008 revealed that 74% of the respondents supported the idea of unmarried couples having access to marital property settlement laws upon the breakdown of their relationship.12 The consequences of the denial of matrimonial property settlement laws are particularly difficult for the cohabitee who depended on the financial support of the other cohabitee. The Family law applicable to married couples certainly recognizes the potential for hardship on the dependent spouse. For instance, Section 25A(2) of the Matrimonial and Family Proceedings Act 1984 provides that the court is required to determine whether or not an order for spousal support is necessary and in doing so, the court must determine: Whether it would be appropriate to require those payments to be made… ...Download file to see next pagesRead More
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