Family Problems - Essay Example

Q In order to find out whether the claim for financial support lodged by Brenda can succeed, it is important to find whether a valid marriage existed in the first place between Brenda and Adrian. For a marriage to be valid in the United Kingdom, it must be monogamous and carried out in accordance with the requirements of the Marriage Acts 1949-1994 and a certificate issued thereof like in the case of Adrian and Brenda, an authorized minister of religion. Adrian and Brenda meet the age threshold of sixteen years and above and their marriage would therefore be deemed legal if the group leader of the ‘People of Jesus’ leader was deemed authorized to conduct the religious marriage ceremony and the garage was a registered religious building. Having met all the criteria for a valid marriage, a question arises as to the financial responsibility and child maintenance in case of a divorce. Soon after the birth of the twins implying about nine months, the relationship between Brenda and Adrian has broken down and now she is seeking a divorce from him. Brenda should have in mind that the petition for divorce can only be lodged after the lapse of one year and the relationship has permanently broken down and the marriage must have been recognized in the United Kingdom in the first place (Harris-Short and Miles 2007, p.294). She can do that through filing a petition for divorce with reasons for the divorce, apply for a decree nisi if Adrian agrees to the petition or apply for a decree absolute which will legally end the marriage. Alternatively, Brenda may have her own arrangement for divorce with Adrian whereby they will give reasons for divorce, how the child will be maintained and how to split the money, property and any other possession. As Brenda is claiming desertion as a ground of divorce between her and Adrian, she must prove that Adrian left the matrimonial home without her agreement and without a good reason. It can also be because he left her in order to end the relationship and that he has been away for more than two years in the past two and a half years. Financial support majorly covers the costs of living that the mother Brenda and her child will require once the request for divorce is made or goes through in a judicial or informal process. Brenda’s child qualifies for the child support as she is under the age of six and Brenda as the mother has day-to-day care of the child and should be the receiving parent. The child maintenance could be an arrangement between Brenda and Adrian if they arrange it themselves or can be through the Child Maintenance Service, which will work out the amount to be paid and collects the payments to be made. In the case of Adrian and Brenda, the deductions may be calculated as against his earnings and remitted to the separated spouse on behalf of the child for onward transmission in terms of provision of basic needs and wants. The Child Support Act 1995 has made new provisions that amended the initial provisions contained in the Child Support Act of 1991 and has incorporated new ways of calculating the level of provisions and how to make adjustments to the payments. The House of Lords in giving its opinion in Farley (FC) (Respondent) v Child Support Agency and another (Appellants) [2006] UKHL 31 which was an appeal from [2005] EWCA Civ 869 reaffirmed the right of the child to maintenance and support whenever the child’s parents separate and he meets the criteria qualifying him for support. The court stated that the Child Support Act 1991 and 1995 as well as the Child Support, Pensions and Social Security Act 2000 made to take care of children whose parents have separated or divorced (Bond, Black and Bridge 2008, p.252). This would be made possible through the provision of effective, cheap and considerable means for enforcing parental support obligations and reduce dependence on social security. Therefore, under section 1 of the 1991 Act, the Adrian and Brenda’s child qualify for maintenance as one parent has been deemed as absent or has deserted and is under a duty to make periodical payments for maintenance purposes which applications may be made to the Secretary of State. This can be through section 4 where either Brenda or Adrian may apply to the Secretary of State or when an application has already been made and an assessment done, a request may be made for the enforcement of the child support. After the finalization of the separation between Adrian and Brenda through mutual agreement or through a judicial process, they make arrangements how Adrian will be paying for the upkeep of his separated wife and the twin babies. Q.2 Parental responsibilities may include providing a home or a shelter for the child, having physical contact with the child, protection and maintenance functions amongst other duties and responsibilities required of a parent to the child due to their vulnerable nature (Allen 2005, p.20). Parental rights and responsibilities always arise whenever a child is born and the mother has paternal obligation from birth while the father will have parental responsibility if he is married to the child’s mother or that he is listed as the father on the birth certificate. For unmarried parents, the unmarried father may only be legally responsible for his child if he is jointly registered with the mother as a parent of the child, has a parental responsibility with the mother or has a parental responsibility from a court of law. In England where Frank and Elaine are domiciled, parental responsibility come automatically for them and does not stop notwithstanding the fact that they may not be living within the same house or that they are separated. In being involved in the responsibility of the child George, Frank can make an application to gain parental responsibility and the court must take into account the degree of his commitment to the child, the degree of attachment and the reasons for the application of the order. The court after considering the application by Frank may make orders that allow him to be largely involved in the taking care of the child together with the mother Elaine. However, in giving him permission to take parental responsibility of George, the court will have to ensure that the permission adheres to the provisions of section 8 of private law orders. Section eight Orders under the Children Act 1989 stresses that all efforts should be made to resolve matters touching on the welfare of the child be solved voluntarily or as a last resort through courts orders. The orders usually include the residence orders that look at the conditions and where the child stays or lives and the ability and condition of the person taking care of the child and contact orders on whom the child has a right to contact or not (Allen 2005, p.34). There may also be specific orders that may be sought by a parent in order to solve particular areas of disagreement in relation to the exercise of parental responsibility for example medical care and religion matters. When there is contest in special guardianship applications as shown in Section 8 private law proceedings, the court in applying the welfare principle must ascertain the feelings and wishes of the child, his physical, emotional and educational needs, the age, the likely effect on him of any change in circumstances amongst other criteria. Therefore, courts must always take into account all the relevant matter and treat the welfare of the child as of utmost importance and look at it from the child’s point of view in choosing what action take concerning the life of a child as was held in Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181. In the case of Elaine and Frank as well as their son George, the court may make any other order pursuant to Section 8 of the Children Act 1989 other than those sought or applied for. This is if the court thinks that it is in the excellent wellbeing of the child that it makes such an order or one that may trigger an investigation by any concerned authority or government representative pursuant to section 37 of the Children Act 1989. However, the court may not make an order if it is not in the best interests of the child or may not make an order at all and the major reason for such is that it is meant to discourage unnecessary court orders from being made. The orders are also made if they are likely to improve the welfare of the child like in the case of George, the court may grant Frank the orders sought as it would be in the best interest of the child to be immunized. Frank who is an unmarried father may therefore make a freestanding application for section 8 orders of the Children Act 1989 under section 10 (2) of the same Act in order to take care of the interests of the child. From the foregoing argument, it is important to note that the parental responsibility will only be granted to Frank if only he proves that his actions and want of parental responsibility are meant to improve the welfare of the child George. Through an application to a court of law under Section 8 private law orders of the Children act 1989, he will be able to have unlimited access to the child and even ensure that he gets the requisite medical treatment including immunization. Q.3 Once the marriage between Harry and Isobel has irretrievably broken down and the divorce is granted, a question arises as to financial provision, which may include how the matrimonial property will be shared and maintenance. It is in the best interests of the parties that are divorcing to negotiate a divorce settlement that provides for each party and their dependants in a fair manner (Sendall 2012, p.29). Before the final divorce is reached, at the time of separation, Isobel may be entitled to financial support before an agreement is reached through an application to a court of law for an interim financial order requesting the Harry to meet her financial needs. In the determination of the financial provision, courts of law in England will look at the income of the spouse as well as the fact that he may be having other financial resources and the spouse’s financial needs as well as the length of the time the marriage subsisted. The court will also look at the contribution by each of the spouse in income or acquisition of the matrimonial property and the standard of living of the family prior to the breakdown of the marriage or the divorce. Isobel should negotiate with Harry first for a divorce settlement by disclosing her financial position before going through the judicial process after which if successful, the negotiated settlement can be made binding through a court consent order. In coming up with a good settlement, Isobel and Harry in the present case may discuss on who retains the matrimonial home, maintenance costs after the divorce and whether there is any dependent children who should be taken care of. In this case, all their children are grown up and have left the matrimonial home and the matter at hand will only be financial provision to Isobel who has never worked all her life. Isobel can rely on the Section 22A of the Matrimonial Causes Act 1973 which gives a provision for financial assistance after the divorce at the appropriate time and may be in the form of lump sums or in periodical payments or instalments. For financial provision to exist the court must make the order, the courts must be convinced that it is justifiable in the circumstances of each case as presented to it. Once the divorce goes through, the court may order Harry to make property adjustments under section 23A or alternatively order for the sale under section 24A and the sharing of the proceeds amongst the couples. Isobel may also commence proceedings under Section 26 of the same Act for ancillary relief before the divorce suit is determined according to the rules placed by the court of law. The current law after the reform of the decision in White v White [2001] 1 A.C. 596 the courts now state that the party that generated the assets of the family in this case Harry who had shown exceptional industry is entitled to more than half of the distribution. The House of Lords also in the decision in Miller v Miller [2006] UKHL 24 and McFarlane v McFarlane [2006] 2 AC 618 developed three criteria for the distribution of the property as that of “the meeting of needs”, “the giving of compensation” and “sharing” (Great Britain 2012, p.31). If Harry was not married to Isobel, it implies that they were cohabiting and not married and therefore the Matrimonial Causes Act 1973 has no effect on property owned by such persons. The matrimonial home rights will therefore not vest in Isobel as she played no role in its acquisition but she may apply to the court to be allowed to continue occupying the home as shown in Tanner v Tanner [1975] 1 WLR 1346. In such an instance, the court will consider the nature of the relationship between Harry and Isobel and the length of time they have lived together (Clarkson, Hill and Thompson 2001, p.31). Further, the court will have to look at whether they had given each other the commitment involved in a marriage. The upshot of this is that if it can be proven that Harry was not married to Isobel, then she cannot seek maintenance from him and the courts have no power to distribute his property or make any financial provision orders in her favour. In the case beforehand, the court will grant some form of maintenance before the absolute divorce but when they separate, there shall be division of property and other forms of finances. Each of the spouses as well as the length of the time they have been married amongst other factors will do this depending on many factors such as the contribution. Isobel must also prove to the court that she is deserving of the financial provisions and that she contributed in one way or the other in the accumulation of the wealth and any other investments including property. Q.4 What Janja is being subjected to is what is known as a forced marriage as she has not consented to the marriage that has been organized in India as she is being pressurized by her parents through psychological and emotional coercion to get married to her cousin against her will. Right from the onset, it is important to note that England recognizes foreign marriages and at times may ignore incapacities that may make a marriage invalid in England aiming to tolerate even marriages that may be offensive to English courts as was held in Cheni (otherwise Rodriguez) v Cheni [1962] 3 All ER 873. A marriage that has taken place in a foreign jurisdiction in this case India will only be recognized by English courts it is formally valid and the parties to the marriage had capacity to contract a marriage. In this case, the marrying off of Janya may be found to be invalid if it did not conform to the requirement of a ceremony as provided by the local laws of India. The capacity to marry will therefore be governed under Rule 67 of Dicey and Morris which states that the capacity to marry is governed by the marriage laws of a party before they get married as held in R v Brentwood Superintendent Registrar of Marriages ex parte Arias [1968] 2 QB 956.968 and may be void if one of the parties lacked the capacity to marry. The capacities of the party in this case Janja, though not in doubt, what the court will consider is the fact that the marriage has not been procured out of the free will or consent of one party contrary to both common law judicial precedents and statutory law as enacted in England. Having been born in Newport in the United Kingdom, Janya is considered an English citizen and the English law applies and the marriage to his cousin who is in India is assumed to be void as it does not meet the provisions of the Marriage Acts 1949 to 1986 as enshrined under section 11 of the Matrimonial Causes Act 1973. Similarly under Section 12, the marriage is deemed voidable as Janya has not willfully consummated it neither has she consented to it as her parents. Janya can rely on the provisions of Section 14 (2) of the Matrimonial Causes Act which states that a marriage celebrated outside England may be void or on the basis of the rules outside the jurisdiction of England and Wales voidable. Janja can contact the Forced Marriage Unit (FMU) which assists British nationals who are facing forced marriages abroad which can help in bring her back to Britain or alternatively bring her to safety. The FMU may also be helpful to Janja as it may offer information and advice including legal remedies to her which may stop her forced marriage in India. As already stated, marriages contracted overseas or outside the United Kingdom, they will only be deemed valid if the law of the place of celebration recognizes the marriage ceremony and the capacities have the capacity to marry under the law of the particular domicile. The marrying off of Janja against her will falls under the Forced Marriage (Civil Protection) Act 2007 which aims to protect the victims of forced marriages as they empower courts of law to make forced marriage protection orders to protect victims of forced marriages (Great Britain 2008, p.85). Similarly, the Universal Declaration of Human Rights at Article 16 provides that marriage shall only be entered into through the free will and consent of the intending spouses and therefore the forcing of Janja into marriage in India is contrary to human rights provisions. Though at the beginning the marriage looked as an arranged marriage, it turned out to resemble a forced marriage as the non-consenting party; in this case Janja is forced to be married off under coercion and duress. S.12(c) of the Matrimonial Cases Act 1973 also makes a marriage voidable if either of the parties to the marriage did not consent to it and in this case, the fact that the marriage was made under duress and coercion of Janja including an attempt to make her travel by force, the marriage will be vitiated. The legal implication of this marriage is that it may still valid until a decree of nullity is obtained and have been commenced within three years of the marriage. The parents to Janja may also be prosecuted for a number of offences such as abduction or threatening behaviour amongst others for securing a forced marriage of a person deemed a British national. The court when faced with such a case may issue orders that at times is difficult to enforce due to the international nature of some forced marriages requiring that there is cooperation between all persons concerned in the enforcement of laws not within their domicile jurisdictions. References Allen, N. 2005. Making sense of the Children Act 1989. Chichester, West Sussex, England, Wiley. Bond, T., Black, J. M., & Bridge, A. J. 2008. Family law 2008. Oxford, Oxford University Press. Clarkson, C. M. V., Hill, J., & Thompson, M. P. 2001. Study on matrimonial property regimes and the property of unmarried couples in private international law and internal law: national report : United Kingdom : England. [Brussels], European Commission, Director-General Justice and Home Affairs. Great Britain. 2008. Human rights: annual report 2007. [London], Stationery Office Great Britain. 2012. Matrimonial property, needs and agreements: a supplementary consultation paper. London, Stationery Office Ltd. Harris-Short, S., & Miles, J. 2007. Family law: text, cases, and materials. Oxford, Oxford University Press. Sendall, J. (2012). Family law handbook. Oxford, Oxford University Press. Read More