The Scope and Formulation of Family Law Principles - English Legal System - Essay Example

Essay Family law is dynamic; it is in a of flux. But, it is embedded in the legal tradition from which it springs. [Katherine O'Donovan: Family Law Matters, Pluto Press, 1993] Summary: The aim of this essay is to understand the scope and formulation of family law principles according to established precedents in the English legal system. Compared to other legal discussions, several experts describe family law as a relative function of ethics, changing socio-political norms, economic decisions and sensitive issues (Carbonne, 2000; Esposito, 1982; Frier & Ginn, 2004; Sutherland & McCall-Smith, 1990) such as child-rearing, abortion etc. Since society norms change with each succeeding generation, family law values will have to keep pace with the changes. In this essay, I have attempted to document the simultaneous legal traditions which act as catalysts for bringing in reform discussions within this area of research. Family law is a diverse field of study. In order to cover the full range of subjects associated with its research, my primary focus is on discussing the impact of such a study on a variety of disciplines affected by its impact: with this aim in mind I have attempted to test a central hypothesis (or research question) which would aid in deciding the course of action for better evaluation of the family law concept. Using established sources for feasibility study (Hasday, 2004; Stark, 2006; Rocher, 2003; Elardo, 2002; Abu-Odeh, 2004), the following research question has been tested in this essay: Family law is dynamic, in a constant state of flux and its mechanisms are governed by the legal traditions in which they are formulated1. In my study, I shall focus on English Common Law as the basis for this methodological evaluation. Doing it would require a detailed grasp of the following evaluation parameters which have been tested for their relevance to our study (see below). 1 Refer the following sources for a comparative analysis of main research parameters covered under study: Hasday, 2004; Stark, 2006; Rocher, 2003; Elardo, 2002; Abu-Odeh, 2004 Literature Review/research parameters: As has been discussed in our evaluation scenario, English Common Law is the basis for understanding the legal traditions within which this area of study operates. Since family law is a diverse concept, the following elements are within the scope of study (Carbonne, 2000; Esposito, 1982; Frier & Ginn, 2004; Sutherland & McCall-Smith, 1990): 1. Entering marriage: Marriage as a contract or a status and their statutory requirements. In this section, we'll mainly look at the main legal requirements of a common law marriage. 2. Legal consequences of marriage (abortion): Pregnancy and abortion are issues that hold a lot of importance to . 3. Changing marriage norms: Here we shall take a look into civil unions covering themes such as same sex marriage, rights/responsibilities and their implications. 4. Conception of children: Controversial concepts such as sterilization and surrogate parenthood are covered under this theme. Also, paternity testing is discussed. 5. Domestic violence and other family disputes: This is an important area of family law in which different ethical constraints are evaluated for common research scope studies. 6. Child supervision: This covers areas such as parental supervision, child abuse and foster care. 7. Adoption: The legal consequences of adoption have been discussed for understanding the dynamic changes brought into the system through an evaluation of adoption practices within the scope of family law. Specific cases include intercountry adoptions and step-parent roles. 8. Divorce and separation: In this case study, we shall evaluate the grounds on which divorce and separation studies have been examined e.g. adultery, impotence etc. 9. After-effects of divorce: Property redistribution, alimony etc. 10. Child support: How the model for calculating this support value has changed over the years 11. Child custody and visitation: The main criteria tested here is 'parental fitness' for the purpose of evaluation. 12. Tax consequences of marriage and divorce: In this parameter, I have looked into material fitness for formulating the basis of a sound marriage and divorce. Most of these research parameters have been tested using case studies or relevant examples. The literature sources were chosen based on their relevance to specific research parameters being discussed. 1 Entering Marriage: Marriage, as a term of contract between a man and his wife, was based on statutory laws derived from English Common Law tradition. The first known government act to regularize this commitment was the Marriage Act of 1753 (also known as Lord Hardwicke's Marriage Act of 1753) (Geldart, 1995). This legal charter gave some concepts common to English marriage law ever since e.g. (Geldart, 1995) (i) Parental consent: Both partners (heterosexual) has to be at least 21 years old failing which parental concept was necessary for marriage. (ii) Age of consent: The male had to be at least 14 years and the female 12 years (even with parental approval). The main clause of these marriages were derived from their civil rights associations, which have continued till this day, is the concept of property inheritance (Geldart, 1995). If any of the parties violated the precepts of the Hardwicke Act, they were denied their inheritance rights by the State2, a concept which still defines the legal distinction between marriage and civil partnership (Geldart, 1995), in English legal traditions. In the days of its initial formation, such marriages were exclusively solemnized in the Church (except for Jews and Quakers) and the importance of a marriage licence was undeniable. A feature of common law marriage, which has continued till this date. The basic tenets of common law marriage, according to English legal tradition haven't changed even today: they always promoted the rights of applicants (to a licence) to marry whomever fitted the eligibility criteria. 2 Refer Geldart (1995) to understand the mechanisms of Fleet marriages within the Fleet Prison of London, something done in defiance to parental approval concept. With the passage of the Hardinge Act, these marriages were declared null and void. Inter-denominational marriages were widely tolerated from the very inception (e.g. between an Anglican and a Catholic) and the Law was highly supportive of flexible associations in heterosexual setting (Oldham, 1992). The only changes to common law marriage, introduced in modern times has been the inclusion of liberal principles e.g. same-sex civil unions (which still, according to English Law fall short of the technical definition of marriage), interracial and interdenominational marriages (unlike the USA, heterosexual marriages under these conditions were never outlawed in England) and a doing away with parental approval rules due to a postmodern liberal tradition. However, the concepts of Age of Consent and Inheritance Rights3 remain central to the definition of marriage in England and Wales. The core structure of marriage has remained intact. 2. Legal consequences of marriage (Abortion) Apart from property and inheritance rights, a legal marriage oversees other vital functions critical to the functioning of a stable marriage. The main themes which have undergone a lot of change in recent years, refer to the concept of pregnancy and abortion, which have a direct fall-out from a common law marriage. While before 1861, the law was not in favour of the woman giving childbirth, the outdated traditions have been recently modified keeping in view the liberal traditions, an era of scientific progress and greater advancement of women's rights. Before 1861, when the wife was legally the property of her husband, the decision to allow her to abort the child (for her own medical safety) 3 Refer Oldham (1992) to understand the modern catalysts (descriptive) shaping new English post-war liberal traditions was in her husband's hands and many men in their own interests to seek an heirloom, didn't intervene much against law. Abortion, by the mother, the doctor or any other person, was considered a criminal act (Ethox, 2007) and even in cases, when it was allowed, it depended on the status of the foetus based on what is known as the Quickening process. The legal definition of quickening, according to English Law, depended on the stage at which life began, as it was considered the end of the first stage of pregnancy (Ethox, 2007). The pregnancy, could not be terminated after this stage. The 1861 Act made Abortion a statutory offence punishable by penal servitude for life, instead of death sentence as earlier. Another act was passed in 1929 called the Infant Life Preservation Act (1929) which made the punishment even more severe; the process of abortion was called child destruction, and any person guilty of such an offence, was said to have killed the child in bad faith. It was not until the 1967 Abortion Act (amended in 1990, by the two amendments), was the act of abortion made compliant with the health and safety of the Mother, a legal precedent which changed the very definition of such an act. From child destruction, the flexible English Law has ever since, accommodated the definition of Abortion to be something based on the health and safety of the mother alone, a condition which has since, remained unchanged4. Current, UK abortion laws (including Scotland) are increasingly pro-Choice on the issues of abortion. 4 Refer Section 4 on parallel issues of surrogate motherhood and sterilization as rights to conception of children. 3. Changing marriage norms Refer Section 1: according to the provisions held by the Hardinge Act, marriages in England and Wales as per society demands, have been recognized until today for only heterosexual couples. Homosexuality has always been viewed as abhorrent and deviant, and punishable by death even until 1835 (cases against sodomy) (Journal of Homosexuality, 1999). Right until the 1930's, convictions for sodomy was considered normal as approximately 8000 people were sentenced to various felony charges in the England and Wales (Tamagne, Date Unknown). In 1971, the chances of recognition of homosexuality was given a death blow with the passage of the Nullity of Marriage Act (1971) (Blassius & Phelan, 1997). Although, it decriminalized homosexuality; the law was designed to preserve England's unique culture from contemporary European attitudes on this subject; countries such as Netherlands and Germany were already moving towards full-fledged reforms for the rights of Lesbian, Gay, Bisexual and Transgendered People (LGBT)5. English Law took a strong exception to the prevailing scenario by recalling a core element of its legal heritage: marriages were effectively, instruments designed by a strong paternal authority (in earlier centuries, the Anglican Church) and therefore, the legal definition of marriage could not have permitted same-sex marriages (Blassius & Phelan, 1997). Marriages, by definition, had to haven consummated between heterosexual couples. Even as the last-ditch attempts by legislation to discourage homosexuality failed and the inevitable demands by European Court of Human Rights (ECHR) forced the British 5 (Blassius & Plahn, 1997). The term LGBT has gained legal currency in English-speaking countries instead of Gay Rights and Lesbian Rights. Government to grant basic rights to LGBT couples, the word 'marriage' was effectively omitted of the definition of a 2004 landmark legislation which officially recognized Civil Unions in England and Wales (Blassius & Phelan, 1997). Today, LGBT couples have greater rights in terms of the common definition of marriage e.g. inheritance claims, child provisions etc. but the basic attempt to classify same-sex civil unions as 'marriage' is strongly opposed by English Law and it has consistently, refused to alter the definition (Blassius & Phelan, 1997). This, is in sharp contrast to other legal traditions e.g. Germany, Canada etc. where same-sex marriage is recognized as de jure marriage by law. 4. Conception of Children Having discussed abortion in Section 2, we can understand how the same legal heritage is at work in promoting modern concepts (possible through advancements and breakthroughs in Medical sciences) such as sterilization and surrogate motherhood. While historical precedents document government-sanctioned attempts at hysterectomy (in women) and castration (in men), the surgical procedures were adopted against known criminals, convicts and sex offenders, the arrival of modern surgical procedures such as vasectomy (in males) and tubal litigation (in females) as a means to control birth are a new phenomenon (Brody, 2000). Having been conceived in a relatively liberal era, the laws have more been supportive of the rights of married couples to take the decision whether or not they prefer such means to remove the chances of pregnancy altogether. The striking feature of English Common Law is, that it never imposed an involuntary sterilization law, nor launched a coercive private effort for the same (Brody, 2000). All the same, the rights of individuals to voluntary sterilization have been upheld consistently, by the liberal framework of the English legal tradition - supported by ancillary laws such as the Younger Committee Recommendations on Privacy (1972) and the Protection from Harassment Act (1997) (Gosney & Pepenoe, 2005)6. In a similar vein, surrogacy by definition, is accepted under English law if both consenting parties agree to the complex scenario in which a child born to a natural mother, has to be relinquished to another woman. Since it's a recent phenomenon, surrogacy under English law is governed by the provisions of the Surrogacy Act (1985). Under the provisions of the law, the woman conceiving the child is classified as a 'body of a person' and terms such as 'payment' are inevitably mentioned (SurrogacyUK, 2007). The law makes strict, punitive arrangements for any commercial advertising of surrogacy and only registered forums are authorized to enable couples in contacting such surrogate mothers. Even though the law mandates that, under the arrangement of a contract of surrogacy, the natural mother loses her rights to the child (SurrogacyUK, 2007) (if she changes her mind after conception), the consenting parties have the freedom to enter into alternate arrangements. Under current definition of surrogacy laws (not in specific cases of in-vitro fertilization where the intended mother donates her egg), the surrogate mother if she has given her own egg, can claim legal rights to the child within the first two years of the child's birth (Asia Times, 2006). This, some consider is a breach of 6 Refer Brody (2000) to understand the full extent of legal rights covered under the laws of privacy and surrogacy. contract but looking from a strictly Anglican perspective, this is conceived as the natural right of a mother towards the child - a close example of England's legal traditions specifying inalienable rights of the mother. 5. Domestic violence and other family disputes Family laws in the 1800's were heavily biased towards husbands on controversial issues such as domestic violence, torture and other spousal rights violations; the law was effectively silent worldwide as the wife was claimed to be property by her husband and spousal abuse inside the house was a clearly-avoided subject for too long. Even today, in 2007, at least 1 out of 4 women in Britain have been subjected to some form of abuse/torture at the hands of their husbands7 (Domestic Violence Report, 2005). Until recently, this act was a part of family disputes provisions and has been now, changed to the Domestic Violence, Crime and Victims Act (2004) which gave the first definition of Domestic Violence as per current definition of marriage by English law (Refer sections 1 and 3 for current definitions of marriage). The definition of domestic violence, thus, is all-inclusive and self-explanatory. 'Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who or are have been intimate partners or family members, regardless of gender or sexuality' (Domestic Violence Report, 2005). 7 Figures are approximate and subject to validity of information It can be clearly seen that domestic violence, as per its first and foremost definition under English law, has been made inclusive to the possibilities of a diverse scenario of family conflicts. It acknowledges the possibility of same-sex civil union violence, as well as violence against men (what is known as the battered men syndrome)8 (Domestic Violence Report, 2005). The law also clearly speaks for the rights of children who can be abused by their paedophile parents; violence against children/elderly members at home and other newer definitions of domestic violence which, according to the ever-changing provisions of English law, is highly accommodating for different scenarios. 6. Child Supervision Abuse of children is criminalized under the Domestic Violence Act. There are other instances requiring clarification on the issue of domestic violence. One such scenario that presents itself is the case of foster care. There are different cases under this situation (Surrey.UK, 2007): 1. Use of babysitter: English law derived from natural Anglican traditions of independent choice, do not specify an age when the child should be left at a babysitter (and they may not be left). This is in sharp contrast to US laws which require working couples to employ the compulsory services of a babysitting agency. However, the law is clear on the front that if the child encounters any injury or health hazard due to lack of parental supervision, the parents can be brought to court to face charges of neglect. 8 Refer to learn more about battered men syndrome. And to learn about domestic violence among gay/lesbian couples. The NSPCC looks after legal responsibilities connected with child welfare under babysitter schemes (Surrey.UK, 2007). 2. Using au-pairs: Again, in comparison to US laws (see the example of British au-pair Louise Woodward), British laws do not make any distinction in using single au-pairs mostly from member European countries (Surrey.UK, 2007). The only legal provision calls for setting up of a minimum age for the concerned au-pair which is, currently set at 16 years. The Home Office looks after recruitment and scrutiny of eligible au-pairs. 3. Using nannies: The Department for Education and Skills (DfES) is a concerned agency looking after the recruitment of nannies for foster care (Surrey.UK, 2007). Under English legal tradition, failure to provide correct supervision to children is counted as a cognizable offence and the case is administered as a willful neglect of the child. 7. Adoption England did not have a general adoption law until 1926 when a legal precedent was made to prevent instances of human trafficking (Hall, 1969). As with in-vitro fertilization and surrogacy rights, adoption laws pose additional problems due to foreign issues (in cases of intercountry adoptions which make up more than 70% of all adoption cases in Britain). Most present adoption schemes are covered under the Children's Act of 2004 which consists of having a ministerial body, called the Children's Commissioner of England which along with other local safeguarding bodies, looks after the overall health and well-being of adopted children, and at the same time, facilitate willing couples to come with easy, and facilitated adoptions of children who can be given a better life in a new home (BAAF, 2007). Adoption laws are a continuation of existing legal tradition as applied to the Care Standards Act (2000) and Family Law Act (1996) which studies isolated instances of divorce and separation under which the child falls, and thus, is isolated for better treatment. It should be known that present adoption schemes are dynamic in nature as they seek to accommodate the demands of LGBT couples (refer section 3) to be able to adopt children and raise them according to a pro-choice lifestyle (BAAF, 2007). 8. Divorce and separation In the ancient times, the highly restrictive influence of the moral code had raised a society which did not encourage divorce on the grounds of canonical principles (the clergy). Though the Anglican church gave the woman her rights to divorce on the grounds of male impotence and mistreatment, it consequently meant that women would lose rights to the property as was the scenario back then. It was not until 1957 when the Church of England Commission on Divorce, came with a view that divorces need to be handled with 'maximum fairness' and 'minimum bitterness', did the law gain maximum powers of execution (Mantle, 1996). However, the concept of 'fairness' was inherent to English Common Law as it was integrated into the fabric of the legal system in terms of ease of application. Even in the 18th century, the formal definition of divorce meant a 'petition' which sought to dissolve the marriage on grounds of irreconcilable differences between the spouses (Mantle, 1996). In more liberal times, when women have gained more rights the need for a formal legal petition, represented by solicitors has remained much in place (Mantle, 1996). The first modern legislation to this effect has been the Matrimonial Causes Act (1973) which clearly lays out financial arrangements for a divorce (Refer section 9). The other legal precedents of divorce, today, are the Family Act and the Children Act, which give a clear and unambiguous picture into the rights of individuals affected by the divorce (Mantle, 1996). 9. After effects of divorce The laws in England and Wales, have always held the concept of ancillary relief on divorce claims and resolving any outstanding financial issues to the court's proceedings. The earlier laws favoured these financial arrangements, only to women which recently, due to the dynamic nature of the English legal tradition, have been conferred to husbands as well. Until 2000, the English courts divided a married couple's assets in such a way that they would ensure that the financially 'weaker' party9, would be able to fend his/her lifetime needs (Morley, 2007). England is one of the few countries in the world which do not support a 'clean break' from marriage in the form of a lumpsome 9 Refer Morley (2000) for extended coverage of the parameters which decide whether a partner is strong or weak, in divorce examples. payment. Instead, the stronger party is constrained to make periodic payments in the form of the English tradition called maintenance (maintenance is originally, an English concept) (Morley, 2007). The term 'financial capacity' is of vital consequence in the English law, as couples who don't have financial capacity to pay maintenance, are given periodic reviews of their status (Morley, 2007) Referring Section 3, LGBT couples in England and Wales do not have any claims to the property of the other person (on the grounds that their civil unions are not recognized as marriage by the law). The only case emerges when the couples have to battle for custody rights of their children and the financial support for it, which will be discussed as under. 10. Child support The model for calculating child support, in the event of a divorce, lies with the stronger party, who is able to provide better financial support to the children, as has always been the case in England and Wales. Even in the 18th and 19th centuries, the model of child support after divorce, mandated that the husband take every possible steps to ensure that the childrens' lifetime needs are met, in the event of a divorce (even though the laws were highly skewed in favour of male heirs) (Gibson, 1994). Current England and Wales laws are just a minor extension of this mandate, and make divorcing couples pay enough for the education and ancillary expenses of the son/daughter until they come of legal age (18 years). This includes education up to A-level and relocation expenses as mandated. Currently, the 'fairness' of English divorce laws can be tested on the fact, that in the event of remarriage and a subsequent divorce, the second spouse has no legal obligations towards the support of the children born through the other spouse's previous marriage (Gibson, 1994). 11. Child custody and visitation rights A very integral aspect of English Common Law, has been the facilitation of child custody rights to the stronger parent (financially). In the event of both partners being equally capable of achieving the same degree of financial support for the child, the general consensus makes it necessary for the court to decide, what is in the best interests of the child (White, 2005). Under no condition, separation of siblings is allowed which means any one adult wins the rights of custody to both children. The laws are equipped to decide that the custody battles are short, and not prolonged and do not involve any distress to the concerned children. It is with this feature in mind that the court mandates the election of a Court Welfare Officer (CWO) who evaluates the financial, emotional and psychological benefits of the child before deciding on child custody (White, 2005). As for visitation rights, in accordance with the traditional legal concepts of 'fairness', the concept remains to ensure that the child is not denied the importance of a father in the event of his losing the custody battle. At the same time, under the Child Welfare Act (2004), the court has the legal rights to ensure that convicted felons especially paedophiles to not enjoy visitation rights under certain conditions, again, for the welfare of the child (White, 2005). 12. Tax consequences of marriage and divorce Tax arrangements come into picture in the event of transference of property and proceedings between the intending parties. The concept of 'joint liability' comes into picture which ensures that divorcing couples are able to achieve a realistic assessment of their tax liabilities in effect of such issuances/deeds. In order to ensure that the proceedings are fair, and simple, the help of a tax solicitor is mandated by court to oversee the financial dealings10. 10 Refer Confetti Article on this subject. Conclusion In this essay, in response to the testing of our central hypothesis Family law is dynamic, in a constant state of flux and its mechanisms are governed by the legal traditions in which they are formulated, we have been able to prove its validity for the legal system of England and Wales, as spelled out in detail in individual examples. As has been mentioned, the following concepts (Sections 1-12) have been evaluated for the various instances in which family law concepts have changed over time, in keeping with newer legislation demands for equality, justice and fairness. References Asia Times. (2006, June 16). India's New Outsourcing Business - Wombs. Asia Times Online Edition. Retrieved 29 Aug 2007 Abu-Hoday, L. (2004). Modernizing Muslim Family Law: The Case of Egypt. 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