Set of Rules and Regulations in a Family - Essay Example

?FAMILY LAW Introduction Law refers to a set of rules and regulations that governs people’s behaviour. It defines actions as either legally good or bad and stipulates penalties for legal wrongs. One of the main objectives of law is to ensure peaceful coexistence of members of a society through regulation of behaviour. It achieves this objective through ensuring good relations in interactions and facilitating litigations on conflicts between parties. Family law is a branch of law that regulates domestic matters. It covers subjects such as marriage, divorce, cohabitations, and domestic partnerships. This paper seeks to discuss some elements of family law and its legal principles. The paper will explore the subject of marriage, separation, and divorce with the aim of advising a party to a case. Facts Samira, a ‘nineteen-year-old’ got married to Devesh when she was still sixteen years old. Devesh was then 22. Their respective parents organized the marriage, and Samira and Devesh did not meet each other until their wedding day. The marriage was against Samira’s wish as she was in love with another person, Clay, who had a different cultural background. She knew that her parents would not approve of her marriage to Clay and agreed to their planned marriage in order to avoid conflict with her family. Her decision was further influenced by the isolation that she would be subjected to by both her family and the entire society for disobeying her parents to marry Clay and not Devesh. Even though Samira decided to forget about Clay and settle in her marriage, she informed Devesh of her then existing relationship, a fact that affected Devesh and has been a turbulent element in their marriage. Both parties decided to work out their marriage for the sake of their families. Samira has however started seeing Clay who wants her to cohabit with him. She now believes that her family can accept Clay if they get married but fears the possibility of isolation for divorcing Devesh. Issues 1. Validity of the marriage, whether the marriage is valid or voidable 2. Termination of the marriage, whether Samira is able to terminate the marriage and by which means 3. Possible defences against termination of the marriage and whether they can succeed in the case 4. Possible remedies 5. Breach of marriage obligations prior to termination Ruling and advice 1. Validity of the marriage One of the fundamental principles in family law is the existence of a legal marriage. Based on the contractual aspects of a marriage, it can be valid, void, or voidable. This is because a marriage is an agreement and is regulated by laws of contract. While a divorce is dissolution of a legal marriage, an annulment refers to pronouncement of lack of a legal marriage between two parties. Annulment is a consequence of a union, in the form of a marriage that was either void or voidable. Oliphant and Steegh define a voidable marriage as one that is considerably legal until an order is issued to its nullification by a judicial process (Oliphant and Steegh, 2007, p. 48). One of the conditions that may render a marriage voidable is lack of contractual capacity of the parties (Stark, 2005, p. 17). Being a legally binding agreement, marriage is largely regulated by the law of contract. Contractual capacity of the parties is therefore an essential element in determining validity of a marriage. Either under the general principles of a contract, a party lacks contractual capacity if the party is a minor, is intoxicated or if the person is in sane. Contracts entered into by these parties are therefore considered as either voidable or void. Voidable agreement can however be ratified by the disadvantaged party at discretion. Samira therefore stands a high chance of annulling the marriage as was held in the case of Pazpenda De Vire v Pazpenda De Vire that presumptions of a legal marriage are rebuttable on strong grounds. Her minority age is a strong basis for rebutting existence of a legal marriage (Helewitz, 2010, p. 124- 127; Bainham, 2003, p. 165). The extent to which capacity can be cited as a ground for annulling a marriage is however relative to the states of the parties. It also depends of the progress that a party has made with respect to his or her state. In the case of Patey v Peasley, the plaintiffs, family members of a deceased person claimed that the deceased’s marriage was void because she was mentally unstable at the time of her marriage. The court however noted that the deceased had significantly recovered from the unstable state at the time of marriage and that the plaintiff’s timing to annul the marriage war wrong, late. The case however acknowledged the principle that a marriage can be voidable based on contractual capacity of the parties. Samira’s minority age at the time of marriage therefore forms sufficient grounds for avoiding the marriage. Her move to marry Devesh was also undertaken as a result of duress and undue influence from her parents and the society. This is because the parties posed a threat of harsh treatment to Samira if she refused to marry Devesh (Kline and Kline, 2007, p. 224, 225). Like in contracts, family law prohibits marriages involving minors. Such marriages are known as ‘non-age’ and can be legally granted under special circumstances. The first condition that allows for a ‘non-age’ marriage is parental consent. This follows the general responsibility of parents to act in the best interest of their minor children and to consent on their behalf. While no marriage can be granted to a person who has not attained sixteen years of age, a minor between sixteen and eighteen years can marry upon a written consent of the minor’s parent or guardian (Mansfield, 2005, 321; Jud, 2011, p. 3). A minor can also be allowed to enter into a marriage if the girl is confirmed to be pregnant of if a child is already born to the parties. This conditions allows for the marriage in the best interest of the female or the child that is involved (Nolan and Wardle, 2006, p. 122). Further, Blackstone et al. argues that a marriage by a minor is voidable without actions for divorce. Samira, having grown up in a society that minors are prohibited from getting into marriage can therefore cite the case of Alhaji Mohamed v Knott in support of the void status of her marriage. However, until the marriage is avoided, Samira is considered as Devesh’s legal wife (Blackstone and Lewis, n.d., p. 402; Murphy, 2005, p. 61). The definition of marriage as an agreement between a man and a woman to enter into a legally binding union stipulates that marriage cannot be dissolved by a mere agreement of the parties and neither can the parties decide to have extra marital affairs while in marriage. The definition therefore illegalizes marital infidelity. Dissolution of marriage is only legally recognized in the event of death of one of the parties to the marriage or through a judicial process (Statsky, 2003, p. 3). 2. Termination of marriage Samira can institute a suit for divorce based on legally recognized grounds. Infidelity in couple’s unfaithfulness is one of the grounds for divorce. Adultery, according to Cochrane, establishes an undisputable ground for divorce. It is however important to note that the person guilty of the infidelity cannot institute a divorce case (2011, n.p.). Incompatibility would be Samira’s perfect reason though this is applicable only if they cannot live together anymore and exhibit “irreconcilable differences.” Devesh’s inability to consummate the marriage would form substantial ground for incompatibility (Statsky, 2003, p.92). With duress as a major reason, Samira can easily succeed in annulling the marriage. Devesh will absolutely have no defence in the case due to absence of “ratification, and statute of limitation.” The case of Schlamberg v Schlamberg would be applicable (Npc, 2012, p. 1). 3. Possible defences against termination Possible defences that can be applied by Devesh include “collusion, connivance, condonation, and recrimination” (Clare, n.d., p. 128). These factors compromise the right of a plaintiff to sue the other for divorce. An act done under collusion, like under connivance, deprives the offended party a right to divorce for being a party to the act. Samira’s acceptance to enter into the marriage when she knew that Devesh was adversely affected by her relationship with Clay particularly induces condonation. Recrimination, based on Samira’s infidelity can also be used against her divorce case. Devesh however has no defence against annulment (Clare, n.d., p. 128). 4. Possible remedies While Samira would be entitled to remedies such as alimony or division of property in divorce, there is no remedy in annulment of marriage (Sember, 2009, p. 198). 5. Breach of marriage obligations Intentional infliction of emotional distress Samira also faces a tort liability with respect to family law based on her extra marital involvement with Clay. Intentional infliction of emotional distress is another applicable principle that governs relationships between married couple. The general rule of duty of care to the whole society as well the specific obligation of spouses to exercise a duty of care while dealing with each other is essential. The doctrine of intentional infliction of emotional distress is applicable in cases where one party negligently engage in an act that results in emotional distress of the other. It falls within the scope of the law of torts under the duty of care. The underlying principle is that the defendant must have been in a position to contemplate possible injury to the plaintiff. There must however be fundamental elements to qualify a claim for intentional infliction of emotional distress. One of the conditions is the defendant’s prior knowledge that the actions would lead to emotional distress. This means that liability goes beyond the defendant’s intentions to inflict distress. The test for liability rests on the knowledge of the defendant that the actions could inflict distress. The defendant’s actions must have also been indecent within the rational view of the society, a concept that would be defined by morality and even law (Newman and Lipchitz, 2001, p.8-1; Becerra, Rubinoff and Berman, 2009, p. 29). Similarly, the action to induce liability must have resulted into distress in the plaintiff. The level of emotional instability induced on the plaintiff must also be serious to an extent that a normal person cannot be able to sustain. The plaintiff is further spared the burden of proving physical impacts of the defendant’s actions. Samira’s actions meets these requirements, hence liability. Damages is the most common remedy for intentional infliction of emotional distress (Newman and Lipchitz, 2001, p.8-7). In the case of John B v Superior, 137 P.3d 153, a husband was held liable for negligence that resulted into emotional distress on his wife (Weisberg, 2008, 89). A count of intentional infliction of emotional distress can similarly be instituted together with other charges such as divorce as was witnessed in the case of Twyman v Twyman Ct. 855 S.W. 2D 619 (1993) (Aspen, 2007, 75) Based on the circumstances around Samira’s case and the involved legal principles, she is advised to seek annulment of the marriage as the best alternative to dissolution. She should further refrain from seeing Clay because this induces a legal liability as long as the marriage is not yet annulled. She should also consider solving the infidelity issues, with Devesh, outside court because her marriage is considered as valid until she annuls it. Bibliography Aspen. (2007). Family Law: Keyed to Courses Using Areen and Regan's Family Law, Fifth Edition. New York, NY: Aspen Publishers Online Bainham, A. (2003). The international survey of family law. Boston, MA: M. Nijhoff Becerra, J., Rubinoff, A. and Berman, C. 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