Principles of Family Law - Essay Example

FAMILY LAW QUESTION A: "A decree absolute of divorce ends the legal status of marriage previously existing between the parties, and thereafter neither party has the legal rights or owes the legal duties of a spouse," (Cretney et al, 2002, p. 265) 11-001. Whatever is the emotional impact of divorce on the couple, courts deal only with legal status and legal rights and duties. Divorce ends a relationship, though the relationship of children with their parents would continue. Dorothy and George might have had their differences; but court would still treat them as couple, and whether they lived together or apart, court is unconcerned with that. In this case, there is no adultery. Dorothy can get divorce by consent if George agrees to it. It is the easiest way as there are a few problems in this divorce. George is not of incurably unsound mind. The 1937 Act allowed divorce for misfortune and 1964 decision of the House of Lords allowed cruelty as a ground for divorce. George cannot be divorced under cruelty, adultery and physical and mental violence, and hence, mutual consent would be the best way for the divorce. If that fails, Dorothy has to file a petition for divorce stating that the marital situation at home is unbearable to go on. "Increasingly the crucial question seemed to be simply whether the petitioner could reasonably be expected to endure the marital situation," (p. 271). Here again, George is neither offensive nor abusive. According to Divorce Reform Act 1969, provided that "the sole ground on which a petition for divorce may be presented to the court..shall be that the marriage has broken down irretrievably" (11-008, p.275). Desertion for a continuous period of at least two years cannot be a ground here. Nor George 'has behaved in such a way that the petitioner could not reasonably be expected to live with the respondent.' Parties have not lived apart for two years. According to the Act, court has to grant a divorce decree "unless it is satisfied on all the evidence that the marriage has not broken down irretrievably." If Dorothy insists that marriage has broken down, it is impossible for George to prove otherwise. The requirements are as follows: 1. The marriage has broken down irretrievably. 2. The requirements of section 8 about information meetings are satisfied; 3. The requirements of section 9 about the parties' arrangements for the future are satisfied. There are no children under the age of 16 in this case. Marital breakdown becomes the main issue, as Dorothy believes that her marriage cannot be saved. If she makes a statement under section 5(1)(a) on the marital breakdown, she has to state that: 1. The party is aware of the reflection and consideration period under section 7; 2. Wishes to make arrangements for the future. If both make the statements, each of them have to state the above. Dorothy has to prove that George spends all his time and money on his hobby, neglecting her and home. She has to prove negligence on his part and also that she is shouldering all the responsibility on her own. Another point in Dorothy's favour is that she should be able to prove that George's financial contribution to the family home had been inadequate for years. Meeting with the marriage Counsellor becomes an important prerequisite of divorce. According to Family Law Act, 1996, there is no point in allowing the 'empty legal shell' of the marriage to continue, when the actual marriage has already broken down completely. With the divorce, Dorothy will also be entitled to the share of the property, if any. She is also entitled for retirement benefit sharing, pension sharing and Cretney et al (2002), Principles of Family Law, (Family Law Act, 1996, 11-043 to 11-057, pp. 297 - 309). Ancillary relief can be made to either of the party, as in the eyes of law both are equal. In spite of that, Ancillary orders mostly are made in favour of the wives, mainly because their need and closeness to children is thought to be more important. No doubt, every case is weighed according to its own facts and figures. Financial relief covers the immediate major requirements of the spouse in need. ([14-011] p.332). Relevant cases: 1. White v. White (2000) 2. Richards v. Richards (1984), A.C. 174, HL. 3. Livingstone-Stallord v. Livingstone-Stallord (1974), Fam, 47, C.A. 4. Bergin v. Bergin 1983, F.L.R. 344. 5. O'Neill v. O'Neill, 1975, I W.L.R. 1118 QUESTION B: "A domestic partnership is another level of commitment where people live together and are presumably have some sort of love/sexual bond or spiritual bond sharing aspects of family," http://www.perkel.com/politics/issues/samesex.htm This relationship could be sexual attraction, aesthetic love, or sexual desire with the same sex. In America, Massachusetts was the first state to legalise same sex marriages. In United Kingdom, legal recognition to gay relationships is not given in the form of gay marriages, but is recognised as Legal Relationship. This Act is passed in 2004, Under Civil Partnership Act (ceremonies are supposed to be taking place in December) the gay couples can register their relationships and thousands are doing so. Gay marriages are legal in Canada, Spain, Belgium and Netherlands. "Britain has not gone that far, but civil partnership will be marriage in all but name, granting legal rights virtually identical to those enjoyed by married couples," http://www.guardian.co.uk/gayrights/story/0,12592,1657772,00.html Paul and Carlton can register as civil partners and this means having taken the responsibility of supporting each other financially, even after the relationship ends. They have to go through a process of 'divorce' to divide and split the assets and ownership in case the relationship does not work out. They can do it by a mutually agreeable settlement. They will have the same pension rights as the married couple and are exempted from inheritance tax if the first partner dies. Before entering into legal relationship, Paul and Carlton have to understand the legal implications. First gay divorce will not happen before 2007 as courts want the gay couples to give it a really trial before deciding to split. Law society is advising the gay couples to have a prenuptial agreement clearly mentioning what asset who will get in case of a split. "The snag is that, although the courts will take account of them, they are not legally enforceable." Two people of the same sex who are having a relationship, but are not closely related to one another can register civil partnerships. The following duties, benefits and rights could be derived from the civil partnerships: 1. A duty to provide reasonable maintenance for your civil partner; 2. Civil partners to be assessed in the same way as spouses for child support; 3. Employment and pension benefits; 4. Recognition under intestacy rules; 5. Access to fatal accidents compensation; 6. Protection from domestic violence and 7. Recognition for immigration and nationality purposes. http://www.womenandequalityunit.gov.uk/lgbt/partnership.htm#What%20is%20Civil%20Partnership If Paul and Carlton are willing to commit themselves in the way mentioned above, there is nothing to prohibit them from entering into a legal partnership. Relevant cases: unavailable. QUESTION C: Robert's having an affair with Pauline's friend Emilia and admitting it should give enough ammunition for Pauline to take a divorce easily on the ground of admitted adultery. She will not have any problem with the divorce decree that would be readily granted to her as infidelity is the cause of one third of divorce. Divorce is available to Pauline, being the 'innocent' party here and Robert will not be able to get it, as he is the committer of adultery. Robert will have to grant divorce even if he has any second thoughts. There are time limits and Pauline should file the petition within six months of knowing adultery committed by Robert. They have lived together for those six months and the law recognises it and hence, she has to file a petition within that period. If they have not lived together after her knowing about the adultery, this becomes irrelevant. Otherwise, she is believed to have 'condoned' it. She can either name Emilia as co-respondent, or make the divorce easier without naming Emilia. It is not actually necessary to have a co-respondent because it only lengthens the process. Then there is a possibility of the co-respondent's non-co-operation. It could be an amicable divorce because either Robert would feel guilty or would be in a hurry to continue his relationship with Emilia or might even think of getting married to her. And this might lead to a more favourable financial settlement for Pauline. She can take advantage of such a situation while deciding the financial aspect and the custody of 4-year-old Bethany. Robert has not misappropriated any family assets during his affair. There was no interspousal tort of battery or giving a sexually transmitted disease to the other partner. Also, Robert is not financially supported by Pauline. Infidelity affects divorce proceedings and financial agreements, mostly in favour of the 'innocent' party. About the parental responsibility of Bethany they can enter into a parental responsibility agreement detailing on where the child should live and how often should meet the other parent. Residence order can be made specifying the time the child should spend with each parent. It is important for both the parents to maintain contact with the child. They can settle for an out of court settlement about the child and finance both with either family or professional mediation. To get the divorce, Pauline has to show that arrangement about Bethany has been made satisfactorily. If Pauline remarries before the financial arrangements are agreed upon, she might lose her rights. It is important to completing Bethany's education and training according to children Act, 1989. Bethany becomes the most important issue of this divorce. "When married parents divorce, the court can adjust the parents' property rights under the Matrimonial Causes Act 1973and will have as its first considerationwelfare while a minor of any child of the family who has not attained the age of eighteen," Hale et al ((1996, p.185). The settlement culture has more of bargaining and less of collusion. Also there will not be many disagreements over money and property. It considers: 1. Income, earning capacity, property and resources of each person. 2. Child's welfare and requirements. 3. Financial needs, obligations, and responsibilities. 4. Standard of living before marriage breakdown. 5. Age of each person and duration of marriage. 6. Physical or mental disability 7. Contribution of each person to the welfare of the family. 8. Conduct of each person, though not important while considering financial matters. 9. Any serious disadvantage to either person, which would be caused by ending the marriage. (Based on http://www.sfla.org.uk/factsheetdisplay.phpid=12) Court has a wide discretion. Still it hopes that finance will be split with the couple's agreement. Here, mediation services and solicitors can help better than the court. Maintenance for Pauline and Bethany will be paid, as Robert has to pay maintenance to both the child and Pauline. Pauline's income is substantially lesser than that of Robert. A suitable home has to be maintained for Bethany and for this purpose, their home could be sold and money could be divided so that a smaller home could be maintained for the child. Or it could be transferred to Pauline, as Bethany will stay with her mother most of the time, under the circumstances. "Parties to a marriage have financial claims against each other for income, capital which includes pension provision and property. The Matrimonial Causes Act 1973 allows the court to consider the making of the following orders for financial provision: 1. Maintenance pending suit or interim maintenance; 2. Periodical payments 3. Lump sum provision 4. Pension provision 5. Property adjustment." http://www.canter-law.co.uk/family/finance.htm If negotiations and mediations fail, then court proceedings would take over. It will be done according to Section 25 of the Matrimonial Causes Act, 1973. As the matrimonial home is in their joint name, it would be better if the joint tenancy is discontinued to prevent the right of survivorship applying. It could be sold immediately, or could be transferred to one party, a deferred trust for sale or a deferred charge. The Court will give its attention to Bethany's need for a home. At the same time, the mortgage balance too would be split up in the same way. In this case, there is a frank financial disclosure. Pauline would be entitled for pension benefit and the rest of the finance would be split into half, keeping child maintenance apart. Other savings could be subject to their own rules. There are no firm rules about the asset splitting. The law will treat husband and wife equally. Usually their conduct is not applicable to the finance. There will not be any break in the child maintenance till Bethany becomes 17. It can be a financial break order if Court thinks it suitable, as Pauline earns lesser than Robert. Tax relief may not be applicable on the maintenance amount. They have to enter into suitable parenting arrangements, so that Bethany does not suffer in any way, due to the parental split. Child support, pensions and social Security Act, 2000 gives way to the maintenance to be calculated (from 2000) according to a formula (Part 1 of Schedule 1 of the Act). Absent parents have to pay 15% of their take home pay for one child and there are penalties for non payment. Relevant Cases: 1. Cleary v. Cleary and Hutton, [1974], I.W.L.R. 73. 2. Ropar v. Ropar, [1972], 1 W.L.R. 1314 at 1317. 3. Thurlow v. Thurlow [1976] Fam 32. QUESTION D: Annulment is as though the marriage never happened and it is different from marriage. "In Great Britain, a transsexual was refused permission to marry a man after surgery to change from male to female. The European Court of Human Rights refused an appeal to change the birth certificate. ..the European court based its decision on biological principles. It, in effect, declared that sex change is a misnomer for the operations. Ion these operations there is a mutilation of the body, but it is impossible to change the gender determined by sex chromosomes," http://www.americancatholic.org/Messenger/Mar1998/Wiseman.asp England, Ireland, Albania, Andorra are the countries who do not recognise sex change in marital matters. Here Andrew has another strong reason to for an annulment: He was not even informed that Ludmilla had gone through a sex change. Courts in England do uphold such annulment. Gender Recognition Bill, provides the Anglican clergy to opt-out from performing the marriage. After the annulment, Andrew need not suffer any further repercussions of the marriage, financial or otherwise. It is as though the marriage had never taken place. Andrew can take the reason as deceit by holding back information. Ludmilla will not be entitled for any financial considerations from Andrew. But if she is not a citizen of UK, she can apply for a Gender Recognition Certificate, from her country, because according to UK law, a foreigner who has not been legally acknowledged as female can only marry a female, as she legally remains a male. But here, as Andrew was married to Ludmilla based on a lie, the marriage will be annulled in spite of the gender recognition certificate. Relevant cases: 1. Elizabeth Bellinger, http://www.pfc.org.uk/news/2001/lb-an1.htm 2. Corbett v. Corbett , 1970:49 3. http://www.timesonline.co.uk/article/0,,2090-1849743,00.html BIBLIOGRAPHY: 1. Cretney, S.M., Masson, J.M. and Bailey-Harris, R (2002), Principles of Family Law, 7th Edn., Sweet & Maxwell, London. 2. Hale, Mrs.Justice, Pearl, Judge David, Cooke, Elizabeth J. and Bates, Philip D. (1996), The Family, Law and Society, Cases and Materials, Fourth edition, Butterworths, London. ONLINE SOURCES: 1. http://www.womenandequalityunit.gov.uk/lgbt/partnership.htm#What%20is%20Civil%20Partnership 2. http://www.guardian.co.uk/gayrights/story/0,12592,1657772,00.html 3. http://www.canter-law.co.uk/family/finance.htm Read More