The Analysis of the Family Law - Essay Example

Family Law Assessed Essay Critically discuss the Laws Regulating the Celebration of Same-sex Marriage Identity Number Law() Assignment: Law essay Date: Words count: words Introduction Same-sex marriage is the union of two adult persons of the same sex in a marital status with full legal rights and responsibilities placed on the contract under a particular jurisdiction. However, there have been many debates on the sex-sex marriage where the supporters of the law insist the law is to create marriage equality among couples of the same sex by protecting every right of the person. On the other hand, persons who oppose the legislations call it redefining marriage or use terms such as same-sex marriage. Those who opposed the idea of same-sex marriage did not celebrate the introduction of the law. Furthermore, it has raised arguments among leaders and on social media. Law on same-sex marriage has addressed several issues that protect the rights of the persons involved just as the laws on marriage of different sex-marriage. The issues covered in the legislation are; marriage and divorce, division of marriage upon relationship breakdown, parenting and children, domestic violence, adoption law, status and contract, protection of the right to marry. Importance of Sex in Marriage The first issue that the law on same-sex marriage has tackled is on the importance of sex in the marriage. The law on same-sex marriage has identified very critical points on the marriage and divorce, which protects the right the couples in the marriages just as the laws safeguard the rights of the couples of opposite sex. One of the important aspects of marriage that law has emphasising on is the importance of sex in marriage. The law defines consummation as one act of ordinary and complete intercourse. It also explains the purpose of sex in that marriage is for recreation rather than procreation. According to the law, it is not without the consent of marriage that couples should have children. It is very clear that the law protect the couples of the same sex, therefore, does not allow any person to question the reason the couples are married but not able to have children. The law as well states that an individual must obtain a gender recognition certificate and must married in order to resign sex consummate in marriage1. Acknowledgement of Marriage and Resolution of Family Disputes The second issue addressed by the law is the acknowledgement of the marriage. The law states that within any partnership there may be physical factors that same-sex-marriage require for the acceptance and accommodation in the sexual relationship of the couples. In the case of same sex-marriage, the law has given the couples to get civil type of marriage. It is where the couples are given a certificate of marriage, which is an evidence of acknowledgement, by the court that they couples are duly married, and their marriage is recognised by the government2. However, the cause of the same same-sex marriage also gives a clear instruction on the reasons that can result to divorce between the two couples. One reason that can lead to divorce between the couples is a case of venereal infection. In an event of a venereal infection, because the according to civil partnership a framework for the legal regulation of same-sex couples. Transmission of venereal disease is not a legal ground in the nullification of the marriage. In case where divorce has to be carried out, then a petition to the court within three years before a divorce. This is evidence that the law on same-sex marriage has really immunised the partners against unlawfully divorces that is done without looking every reason that can cause divorce3. Another critical issue captured by the law is on the decentralization of family disputes. Decentralization of family disputes is the mediation service where there is an involvement of an independent professional to make an agreement on how they family will take care of the business. In some instances, family dispute resolutions can granted free of charge if the complainant qualifies for full government funding. According to family law, it is ideal for family to solve their issues without litigation. The law states that it is fair if the parents or rather the couples should resolve their problems themselves4. However, Diduck 2014 states that, however, much the family issues can be resolved between the couples alone in case where a dispute has ended up at the court of law. Scrutinization of the rules the justice of the process should be done in regards to the court proceedings, legal entitlement, social values, and rights5. The law has also regulated the abuse of law by partners. Legal Aid, Sentencing, and Punishment of Offenders have defined this by the removal of funding for private family law disputes. The removal of the issue of public funding for private family law disputes has minimised incidences of minor cases reported to the court for resolution The regulation of this law has therefore defined for the misuse of the lawyers by the offenders, which to some extent, protects the right of the second party in the case. This, therefore, prevents abuse of the court of law by the offenders in the cases that avoidable by the tribunal6. Domestic violence is the fight between intimate partners. The violence can involve both cohabiting and dating couples, which are inclusive of same-sex couples. Incidents of domestic violence usually occur at levels that are is the same or at times even higher than among the heterosexual couples. Domestic violence can be a result of psychological abuse, physical violence sexual violence, and withholding resources. The law on same-sex marriage site the incidence on how it deals with the lack of capacity in marriage to prevent cases of domestic violence. The law gives every authority to the court to give in preventive orders against the offender in the in relation to the acts. There has been integration of law to help prevent the case of domestic violence or abuse in the marriage of the same-sex couples7. The final issue on the law in terms of protection of the persons involved in the same-sex marriage is on criminalisation. Criminalisation in this context relates to offence of intentionally making one to enter into marriage without free and full consent by means of either violence, threats or any other form of oppression. That in the Act 2014, s. 121 on Anti-social behaviour protects the right of the offended, in this case8. In a case where the victim may have lacked the capacity to consent by any means then offended case will be categorised under the act of Anti-social behaviour, crime, and policing Acts.121 (2)9. In case the accused has a history of committing an offence under the laws, then it gives the court the opportunity to criminalise the offender10 Gender Reassignment and Protection on the Right to Marry Gender reassignment is the also known as sex change surgery. Gender reassignment is the procedure performed to replace individual external genital organs from a particular sex to another. The purpose of the sex is for two primary reason: one new born with the intersex deformities. The deformities must therefore assign from one particular sex to another. The second reason is gender reassignment is that occasionally both men and women have a believe that they physically of a different sex than they are mentally and emotionally. The ideology is so strong to the extent that the person is willing to change their gender surgically. The condition is gender identity disorder, commonly experienced by men than in female. The law regulating the same sex marriage recognises the act of gender reassignment. The law states that if an applicant of gender reassignment is married and the other spouse consents to the gender recognition certificate granted, then the opposite-sex marriage is a same-sex marriage11. However, if the applicant is married and the spouse does not consent to the full gender recognition, then the applicant can only obtain an interim gender recognition certificate or will only upgrade if there is dissolution of the existing marriage. The law therefore vividly recognises the act of gender reassignment on and integrates it in the law that regulates the law on sex on same-sex gender. Another issue on the protection of right to marry is relation to the law on same-sex marriage. Initially, there had been a lot of discrimination on the people on the introduction of the lesbianism, gay and transgender. This brought a lot of stigmatisation of the people who were involved in the act. However, the introduction of the law on the same-sex marriage has brought a lot of immunisation of the people concerned. The constitution has given a provision of choice in the forms of legal recognition of the partnership. The law has availed equality to all couples without distinction or discrimination. Cultural Bias and Marriage Compliance Cultural bias is the art of interpretation and giving judgement, which imposes one culture to other cultures. The introduction of the law that provides a guideline on same-sex marriage has greatly helped the persons involved to escape description from many dimensions. There were instances where the persons involved were living in fear, which is a result of threat, by direct danger to life, limb, and liberty. The introduction of the law on regulation of same-sex marriage has reduced the cases of biased and given the persons freedom to come to the open12. The marriage between persons of the same sex is usually categorised under civil partnership. In civil marriage, the partners must sign a document before being legally a wife or husband. The law gives the partners all the authority declared as husband and wife13. In the case of non-compliance, there is an assumption in favour of the validity of the marriage, so it is upon the party not satisfied with the marriage to challenge it in the court of law. However, the complainant does not have an easy go on the case as there are a number of requirement so non-compliance, therefore, cannot affect the validity of the marriage. The validity of the complainant will only be significant only if both parties are knowingly and wilfully fail to comply with vital formalities that make marriage considered illegal. Another is that has been tackled by the constitution drawing a clear line on the types of marriage. That is on the void and avoidable marriage. Avoid marriage is a partnership that never existed at all while voidable marriage existed until the decree/order of the court. In a case of a voidable marriage or civil partnership, the marriage can avoidable because of the following reasons. The duration since the marriage was formalised. Secondly, petitioners knowledge on the legal short comes. The third is reason is approbation, that is if the petition was aware that the partnership could be avoided and but instead acted in a manner likely to suggest that he or she would not seek to do so. In a case where marriage is considerably void, a court can order financial provision as upon divorce. Second, either party can apply for financial provision upon the death of the other if the marriage was through faith, but not cancelled. Similar to laws that guide heterosexual marriages, the law on same-sex marriages also highlight very critical issues on the validity of void and voidable marriages14. Capacity of Marriage and Time Limits The capacities, in this case, are the factors that considered before declaring that persons qualified to be married. The factors are age, existing union, relationship, and gender. To ready for marriage, a person must be of a minimum of 16 years old15.In case where an individual is below, a parent or guardian consent is mandatory otherwise, the marriage is considerably invalid16. Civil partnership is considerably void if either a party to existing formal relationship in existing union17. The parties relationship is considerably a factor to declare them worthy of marriage. Persons who are closely related are prohibited from being married18. For long, same-sex marriage has been perceived as impossibility but it has become real19. An individuals sex has to be determined for this particular reason. Gender recognition certificate is applied, and then the application is scrutinised by the Gender Recognition Panel. Medical confirmation of sex identity dysphoria is completed. Then the person are checked if he/she has lived with the sex for at least two years and still intends to live in it until death. Finally, Gender Recognition Certificate is issuable after confirmation of gender of the person20. In this context, time limits are the duration that partners were in a relationship. There, however, had never been a declaration of marriage that is recognisable within the jurisdiction21. The law addresses the issues on time limits and categorises the type of marriage that is presentable within the time limits. In addition, the law also meets the kinds of marriages within the time limit and it how it defines the relationship between the two partners. Threat is another issue that has been incorporated in the law of same-sex marriage. Initially court cases that involved same-sex couples had incidences of genuinely held fear caused by a threat of immediate danger to life, limb, and liberty22. However, later, cases accepted any threats/pressure that destroyed the consent of the marriage through cultural expectations is not necessary23. However, law on same-sex marriage has provided a lot of immunisation to the victims. Under civil protection in the law, forced marriage or relationships any threats or other psychological means is categorised, as means of force and the accused is liable to align in the court of law as a lawbreaker. Under the same-sex marriage law, the persons must be tested mentally if ready for the marriage24. An individual must be mentally capable of appreciating that is involved in the marriage attaching to marriage. Marriage is a contract be it a civil or religious type of marriage which must be entered formally. The primary goal of the contract is an agreement between a man and a woman to live together, and the status is changed as husband and wife barring others. Marriage creates a relationship of mutual and reciprocal obligation, typically involving the sharing of a home, domestic life and the right to enjoy one anothers society, comfort, and assistance25. If one is not mentally ready for all this responsibility, however, it becomes quite technical to persons who not prepared for the responsibilities. Wilful Refusal to Consummate Wilful refusal to consummate is the unjustified decision not to consummate a marriage. This can provide a ground for the termination of marriage. Because of this, introduction of the law on same sex marriage provides a ground where test is performed on a person whether the respondent has settled and made a decision with giving an excuse. Wilful refusal to consummate a relationship can be indication of refusal of one partner to do with the other person26. However, an individual can petition a case in court based on the wilful refusal to consummate based on his or her refusal27. Notably, the introduction of the law on same-sex marriage was to protect the rights of the persons involved in the same-sex marriage. There was an introduction of the law because the individuals participating in the marriage activity had experienced significant challenges that were considerably a serious threat to their social life in the society. It is wise to introduce the law regulating their marriage to protect them and reduce the incidences of abuse by other people. Bibliography Anti-social Behavior, Crime and Policing Act 2014, s.121 (2) Crime and Policing Act 2014, s.121 Hirani v Hirani (1983) 4 FLR 232 J v C and E (A Child) [2006] EWCA Civ 551 MCA s. 11(a) (i) Provision for Family and Dependants) Act s. 25(4) Same Sex Couples) Act 2013 Singh v Singh [1971] P 226 Szechter v Szechter [1971] P 286 Szechter v Szechter [1971] P 286 The Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, reg. 4(2) (c)).4 B v I [2010] 1 FLR 1721 Coates, David. The Oxford Companion to American Politics. New York: Oxford University Press, 2012. Print. Donovan, Catherine, and Marianne Hester. Domestic Violence and Sexuality: Whats Love Got to Do with It? Bristol: Policy Press, 2014. Print Family Justice Review, para.104 Gender Recognition Act, 2004 Gender Recognition Act 2004, s. 3(6B), as inserted by the marriage (Same-Sex Couples Act) 2013, Sched, para 2 MA 1949 ss. 25 and 49 Maclean, Mavis, and John Eekelaar. Managing Family Justice in Diverse Societies. Oxford: Hart Publishing Limited, 2013. Print. Marriage Act 1949 s. 1(1) and Sched 1. Marriage Act 1949, s. 3 MCA s. 11(a) (ii) MCA s. 11(b) One declaration under the mentality Act 2005 and under the act of forced marriage Act 2007 Strasser, Mark . On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads. Westport, Conn: Praeger, 2002. Print. White, James E. Contemporary Moral Problems. Australia: Thomson Wadsworth, 2009. Print. Woodhouse, Violet and Matthew, Perry. Divorce & Money: How to Make the Best Financial Decisions During Divorce. , 2014. Print Read More