The Validity of Possible Marriage - Essay Example

? Family Law Memo Word Count 250 Dear Mr. McHenty: It has come to my attention that there are three requisite fronts that need to be concurrently addressed regarding the specifics of your particular situation. We are now talking about: a) the validity of your possible marriage; b) the occupation of the family home; and c) whether the local social services could take your son into its care. We’ll address each section separately, with a close reading of the law that takes into account the details that concern you. I. The Validity of Your Possible Marriage The first piece of information with which we should be concerned is whether the marriage itself is valid or not. If it’s proved not to be, there could be a long custody battle and who knows what other kinds of problems. The fact that the vicar, Leonie, was doing a ‘test-run’ marriage ceremony is of no consequence as long as there is proof that both parties actually went through with the ceremony. Moreover, the Family Law Act 1996 states that “…an application for divorce can only be made if the couple have been married for a year or more and the only ground for a divorce petition is that the marriage has irretrievably broken down.”1 Obviously, since Myles and Emilia have been married for more than one year—and since Emilia is having destructive ‘fits’ of sorts—this could definitely apply to your situation as having been ‘broken down.’ More so, you, Mr. McHenty, have every legal reason to receive benefits even though you don’t have a prenuptial agreement. In the court case Parlour v Parlour,2 Ray Parlour was ordered to give a significant portion of his wealth and assets to his wife. It was a shocking case because Mr. Parlour obviously did not have a prenuptial agreement—which, in the end, hurt him. Similarly, in your case it may hurt Emilia the most that she did not draw up a prenup considering the wealth of estate with which she’s been entrusted by a relative. Radmacher v Granatino3 was a landmark case in which prenuptial agreements were first seen as weighty, iron-clad documents in a court of law in the UK. Emilia’s lack of a prenup will severely hurt her in the legal proceedings. II. The Occupation of the Family Home Another element which will be in your favor besides the fact of the missing prenuptial agreement is that Emilia has accustomed you to a certain way of life that you would not have had had it not been for the estate which had been so graciously bestowed upon her—and which, she shared with you, at least in the beginning. In Miller v Miller,4 it was ruled that multimillionaire Alan Miller had to pay five million pounds to his former wife of three years, for several reasons—but one of them namely being that he had hoped his wife would have a better standard of living. Therefore, since Emilia had rights to the estate, you are in even better of a position as someone who doesn’t have the same wealth as she does. Therefore, you are allowed to earn some type of spousal support from her, as the case may be. For example, in McFarlane v McFarlane,5 it was ruled by the courts that Mrs. McFarlane should be allowed to partake of the high income of her former husband. That notwithstanding, there is another case, White v White,6 which proved that needs and reasonable requirements should be taken into account in divorce proceedings, rather than just a simple mathematical calculation which would take care of the question of equitable division of the assets. This means that not only must Emilia share her assets, but they must be divided up in such a manner that is ‘fair.’ Of course, it is up to the courts to decide what constitutes fairness; however, the case is once again going to be in your favour. With regard to living arrangements, the courts will make a suitable argument that will take care of your needs indefinitely. III. Whether Local Social Services Could Take Your Son Into Its Care Now, as to whether local social services could take your son into its care, is an entirely different matter altogether. “In all cases, it has to be shown that the harm [that was done to the child] is ‘significant.’ There is no definition in the Children Act of ‘significant.’ This word was included in the statutory formula to emphasize the gravity of compulsory intervention and to warn the court that an order should not be made in trivial cases.”7 Of course, the courts may indeed most likely decide that the child may be removed from the home until a thorough investigation can be conducted into how your son was poisoned. Causing a child bodily harm intentionally is a crime, and you can be assured that the authorities will most likely quarantine your son—at least temporarily—while they can conduct their line of enquiry. If the child requires medical treatment, the child’s treatment must be under the direction of a registered medical professional, and as a non-resident or resident patient at a health services facility.8 Moreover, the child’s mental health will be taken into account in light of him having been poisoned, according to the due process of law stated as follows. “The law concerning the psychiatric assessment and treatment of children can be considered under four main headings [, including but not limited to]: (1) the statutory provisions in the Mental Health Act 1983…”9 In fact, your son may have to be represented separately from yourself and your spouse in court in order to have his right to be heard. Mabon v Mabon10 explored if it was possible for a child to be represented in court in a manner that was separate from their guardian’s representation. In the case of you, Mr. McHenty, your son may want to seek representation for himself versus the family, either against yourself, your spouse, and/or your mother. The case could turn out a number of different ways. Since the child’s life was unduly put in danger, the liability could potentially be shared not only by you and/or your spouse but especially your mother. The fact that your mother and your spouse Emilia are unwilling to cooperate in answering any questions about the matter of the child’s health are not only cause for concern, but possibly proof that one or both of them has conspired to endanger the life of a child. This is what should concern you most above all. In court, you need to protect yourself in the sense that you need to prove that you are not responsible for the child having gotten sick or in any way causing his ailment—otherwise, you could be left with hefty fines and/or be imprisoned, depending upon the severity of the liability that you have as a parent and as a guardian. These are all important matters to consider and I hope you will weigh your options and consider taking a balanced approach to your legal representation. On the one hand, you want to make sure you litigate in order to have your needs met as the financially distressed spouse. However, on the other hand, you want to make it absolutely clear to the courts that you had nothing to do with your son’s ill health, ensuring that you provide sufficient documented evidence to this end, proving your point. I sincerely thank you for taking all my comments into consideration. Regards, Your Barrister. References Cases [2000] 2 FLR 981. [2004] EWCA (Civ) 872. [2005] EWCA Civ 634. [2006] 1 FLR 1186. [2006] UKHL 24 (UK). [2009] EWCA Civ 649. Books Anselm Eldergill, Mental Health Review Tribunals: Law and Practice (1st London: Sweet & Maxwell, London, 1997). Nick Allen, Making Sense of the Children Act 1989 (1st US: John Wiley & Sons, 2005). Websites 'Children Act 1989' (The National Archives) accessed 1 January 12. 'Family Law Act 1996' (Dictionary UK 2012) accessed 1 January 12. Read More