The Foundation of Family Law - Essay Example

Family Law I. Introduction The emergence of many forms of cohabitation and partnership often brings us the question of what is a family. There popular schools of thoughts, which defines what is a family. The formalist conception of a family gives us a traditionally meaning of a family as composed of a man, a woman and their unmarried children by blood or adoption. In this concept, marriage is at the center of family life. In a decided case of Blackwell v Bull1, the Court said that “it is evident that word “family” is capable of many application”. The Court argued in this case that a family could be a “man’s household” with himself, his wife and children or it could be him alone with his children. Another definition of a family springs from the functions upon which the family is founded upon. This approach, otherwise known as the “functionalist approach”, includes in the definition of a family as any group of people performing roles and functions, which are closely associated with their responsibilities of being members of a group. For instance, we usually refer to a group of people such as a certain class as a family by association. A further definition of family would give us the “genealogical stock” from which an individual came from. For instance, John belongs to the Adam’s family. Here, family is the group from which Adam actually came from. As time evolved, we become more open to different family forms, thus the subjective approach to definition of a family came into the picture. Under this approach, the definition of a family depends on the fact that the people involved regard themselves as such. Of three approaches to the definition of a family, this is type promotes the most liberal definition. Yet, however, we may define family, I still believe that marriage should still play a central role. To clarify my position on this issue, let us discuss this in relation to existing laws and cases. II. Marriage and the Law Section 1 Family Law Act 1996 so provides that “the institution of marriage is to be supported.” Marriage is well defined in the case of Hyde v Hyde and Woodhouse (1866)2 when the Court ruled that it is a “voluntary union for life of one man and one woman to the exclusion of others.” There are two very important elements of marriage described in this case; (a) that the union should be that of a man and a woman (b) that such union is exclusive. Marriage is also founded upon a bond, which is more than a mere contracting of mutual support and obligation. It is a kind of institution that “confers a status”.3 In other words, marriage enhances an individual by conferring a status or a title. a. What makes marriage special under the law? Although society has become more permission and allows for various types of human partnerships and family set-ups, provisions of the la can still be clearly seen to favor marriage. According to the Law Commission’s Sharing Homes Report (2002), although it is a recognized fact that there are many types of living arrangements in society nowadays, marriage remains a “special status”. This is because under the law, only a man and women can enter into marriage. In Corbett v Corbett4, the Court so ruled that a “marriage is essentially a relationship between an man and a women.” The definition is exclusive and the basis of gender in biological, meaning the gender of which you are born with. Although the Gender Recognition Act of 2004 recognised under Section 9(1) that for all purposes (including marriage), the acquired gender of the person should be made the basis, still such marriage would remain voidable under Section 125 of the Matrimonial Causes Act 1973 (as amended) subject to the provisions of Section 136 thereof. A declaration of incompatibility may also be made on reason on such biological gender status.7 Anybody cannot just enter into a contract of marriage without the meeting the requisites thereof.8 The Marriage Act of 19499 so provides for a specific age that a man and woman must first attain before they can contract marriage. Part of the rationale of this provision is that marriage should be founded on the basis of mutual consent not vitiated by “duress, mistake, unsoundness of the mind or otherwise.”10 b. Privileges of Marriage Unlike mere cohabitation and other forms living arrangements, marriage provides greater security. As soon as the marriage takes places, operations of law automatically applies to the couple, thus, affording both parties and their children greater protection. “The current law affecting cohabitation fails to provide people with adequate protection, particularly on relationship breakdown.”11 Children of married couples enjoy more security as the Court can order the re-distribution of finances of couples in cases of divorce, based on the doctrine of equitable contributions set out in the case of Midlandbank v Cooke (1995).12 Under the Matrimonial Causes Act 1973, the Court can assess maintenance payments and adjust spouses’ interest in property. For instance, where the property in question is the family home, the Court has the power to rule that the property should be in the name of both spouses if it is only registered under one of the spouses or to rule that only one spouse should be registered as owner thereof in case of joint ownership13. Cohabitation does not afford this kind of protection under the law, as there are no clear indications other than the couples perceived “common intention”.14 Bear in mind that division of property in cohabitation is only governed by generally accepted principles of trust and not based on the family law. Clearly, “there is no obligation on cohabitants to provide for each other.”15 Society itself is not very receptive when it comes to the appropriateness of imposing general right of maintenance between cohabitants. Even in modern society where different living arrangements are already accepted, the rights of married couples to demand support from each other is still held inviolable but not where the couple is only cohabiting. However, there are exceptions to the rules as under the Social Security Administration Act 1992, if a parent who is taking car of the child in under income support, other parent has the obligation to provide personal allowances and maintenance to the child and the parent who is taking care of the child. A “parent as carer” is also considered under the Child Support Act 1991. Child support is clearly accepted in society and it does not matter whether the child is born out of wedlock or not. On the other hand, in construing the property relations of couples, married couples still enjoy better protection under the law. In the absence of any pre-nuptial agreements, the parties are to be considered joint owners of properties by operation of law. This is not true with cohabitation. Without a clear showing as to ownership of the property in question, party who is not so named, as owner thereof does not have the right to ownership of the property. This case can be illustrated in the extreme in the case of Burns v Burns16 where after cohabiting for 17 years, caring for the kids, redecorating the house and contributing for its payment, the court ruled that the woman have no right over the property but things would have been different had “she married the defendant and had taken appropriate steps under the Matrimonial Causes Act 1973.” Note that unlike marriage, which is based on the family law, the relationship in cohabitation is built on common trust. Thus, the intent of the parties thereof is binding. In the case of Pascoe v Turner (1979) 17 the operations of law on estoppel was applied in court in determining the ownership of the property. There are three elements that must be proven to avail of the defence of estoppel namely; (a) applicant has proven interest on the property (b) change in position based on reliance on the assurance (c) change in position is disadvantageous to the applicant.18 As these requisites were satisfied in the case of Pascoe v Turner, the property was awarded to the applicant. Again, compared to the privileges of married couples under the provisions of the law, relying on operations such as estoppel by co-habiting couples in claiming ownership over properties is rather more difficult. Another area where marriage has more advantages than cohabitation under the law is in the case of inheritance and succession. Unlike married couples where inheritance and succession automatically apply, cohabiting partners still need to apply under the provisions of the Inheritance Act 1975. III. Conclusion Different forms and definitions of family may have found greater acceptance in modern society but marriage still stands as the supreme form of family relations. The laws of England clearly protect and promote marriage as an institution, which is inviolable. Laws such as the Gender Recognition Act may have paved a way for same sex marriage by recognizing the acquired gender of the parties for all purposes including marriage but still, under the Matrimonial Causes Act 1973, this is still recognized as one of the grounds for declaring the marriage viodable. Furthermore, marriage continue to afford couples with more rights and privileges which they could not avail of by merely cohabiting with each other no matter how long. This is a clear indication of the supremacy of marriage. On the other hand, the rights of children to support and other privileges remained as one of England’s primary concerns. This only fair as children did not have any hand on their parents’ decision to marry or not to marry. The Family Law Reform Act 1987 abolished the label illegitimate on children born out of wedlock but did not confer automatic parental rights on the father as in those children born in marriage. Again we see indications of how our laws still favor marriage over cohabitation. Thus, we can safely say that at this point that legal institution of marriage remains fundamentally important in family law. Bibliography Laws and articles 1. Article 12 European Convention on Human Rights 2. Article 23, International Covenant on Civil and Political rights 3. Child Support Act 1991 4. Civil Partnerships Act 2004 5. Degrees of Relationship Act of 1986 6. Family Law Act 1996 7. Family Law Reform Act 1987 8. Gender Recognition Act of 2004 9. Inheritance Act 1975 10. Law Commission “Sharing Homes: A Discussion Paper” online available at www.lawcom.gov.uk/files.lc278/pdf last accessed April 24, 2006 11. Law Society (2002) Cohabitation; The Case for Clear Law online available at www.lawsociety.org.uk/dcs/pdf/family_cohabitation.pdf last accessed April 24, 2006 12. Matrimonial Causes Act 1973 13. Social Security Administration Act 1992 14. The Marriage Act of 1949 Cases 1. Bellinger v Bellinger (2003) 3 FCR 1 2. Blackwell v Bull (1936) 1 Keen 176 3. Burns v Burns (184) 2 FLR 167 4. Corbett v Corbett (1971) P 83 5. Hirani v Hirani (1982) 4 FLR 232 6. Hyde v Hyde and Woodhouse (1966) LR 1 P&D 130 7. Midlandbank v Cooke (1995) 4 All ER 562. 8. Pascoe v Turner (1979) 1 WLR 431. Read More