Why Family Law Has to Be Amended - Essay Example

Family Law Introduction: Laws established for social well being is largely aimed at providing justice. Family law in particular directly dealing with people's lives in relation to their social arrangements with their partners and/or children. Decisions resulting from cases under UK family law impact each and every concerned member of a family. In considering a nuclear family [father, mother and child] in an arrangement through marriage, each member is affected in a unique way by family. When it comes to disputes that arise within such a family, family law helps to settle disputes in a just manner. However, many feel that family law does not deal with disputes adequately. This is because not only does family law fail to adequately consider areas such as equal parental rights over children, it fails to deal with unmarried couples that have a relationship and do not live together. It also fails to deal with heterosexual cohabitation, same sex cohabitation, etc. Family law needs to accommodate these types of structures as well because these arrangements are growing in number. In order for family law to deal with the changing nature of family, it has to recognize and accommodate the fact that family structures now vary. Analysis: In order to develop a general understanding of the reasons why family law has to be amended in order to become more accommodating in its approach, one has to consider the areas family law encompasses1. Family law deals with the following areas that are all family-related: the nature of marriage, civil unions, and domestic partnerships; issues that occur during marriage such as spousal abuse, surrogacy, child abuse, legitimacy, adoption and child abduction divorce, annulment, property settlements, alimony, and parental responsibility orders All the three points above appear to be quite broad and encompassing. However, there are family structures today that may not necessarily be encompassed by them. This particularly refers to cohabiting couples. These may be heterosexual or same sex couples. It must be noted that same sex cohabiting relationships, however, have been recognized since 2004. It took a slow process for this type of relationship to be recognized2. Also, with cohabiting couples, cases may be more complicated because of them having children. Along with considering cohabitating heterosexual couples, a look at Figure 1 in the Appendix provides one with the trends of Marriage, Divorce and Remarriage in the UK3. These indicate perhaps an increasing trend towards families that do not consider marriage. A broader view of cohabitation is addressed later in this paper. New Family Structure [The Single Parent Family]: It is known that now marriage is becoming less significant to family structure, and parenthood is taking its place. Parenthood may be in the form of two parents or a single parent. Single parenthood may emerge from different situations. In many cases it emerges from a couple dating and having no commitments4. A dating couple that does not live together or does not even plan to get married may end up with a child accidentally. Therefore, they might feel forced into remaining together as a family. Since, in many cases, there is no commitment on either side, the mother decides to keep the child and raise it alone. In such a case, there can be little demand for child support from the father. This is because there is no civil union or any such family law that could compel the father to pay towards the child's upbringing without the existence of marriage. It must be noted here that a father becomes legally bound to pay for child support if he is married to the mother of his child. In many cases, the mother does not want to continue her relationship with her partner5. If no marriage exists, a father does not have to pay for child support, but he may also not be able to see his child. Therefore, there is every chance that the child will grow up without knowing or seeing his or her father. Figure 2 in the Appendix shows the percentage of single parents in the UK. Family law in the UK needs to consider this barrier to fathers seeing their children, regardless of whether they can or cannot support their children. Having said this, since there is ongoing work in the field of gender equality, fathers should have equal rights as mothers regarding them being able to see their children. For example, when a father has custody of a child or if an unmarried mother decides to hand over her child to the father when it is born, she should not be kept from seeing the child on account of her not being able to provide childcare. The point to emphasize on here is that both, mother and father, regardless of their financial situations, should not be kept from seeing their children. Specific reference needs to be made to the Children Act (1989), which will be addressed in the following section of this paper. Parental Rights: The Fathers' Rights Movement that commenced in the 1970s is made up of two kinds of fathers: fathers who have or had a legal bonds [marriage] with the mothers of their children, and fathers that didn't or don't have any legal bond or commitment6. However, both kinds of fathers feel deprived of their rights as parents. Under the Children Act 19897, mothers are granted greater rights, and the courts prefer to retain the status quo. This is perhaps because the mother appears to be the more logical or natural guardian of a child8. In considering the Children Act 1989, it is also worth referring to the Shared Residence Order, which holds that both parents are equal. This order aims at giving each parent equal rights. However, this may not mean an exact split in terms of having time with a child. There are particular cases that are referred to under this point of equal rights. One is Miller vs. Miller (2006), and D vs. D (2001). D vs. D (Shared Residence Order) [2001] 1 FLR 495 is worth referring to here. In this case, where Shared Residence Order was applied, the father of the children calculated that he had 38% of his children's time, and he also said that he did not feel that he had an equal right9. The Child Support Act: The Child Support Act is another law that goes against the rights of fathers10. This can be argued because there are many fathers that are unemployed. They may not be able to financially support their children. However, this does not mean that they should be deprived of seeing their children. After all, parenting is not only about financially supporting children. Supporting this argument is the establishment of new UK legislation that supports fathers' rights. It is normally unlikely for a mother to be deprived of seeing her child for not having the finance to support the child. Here again, it can be asserted that the Child Support Act puts fathers at a disadvantage. It can be observed that there is an inconsistency in family law then. Mothers without finance can have some right over their child, and at least be able to visit the child. A father is normally without any ground to stand on if he does not have finance to pay some form of child support11. Advocates of the Fathers' Rights Movement further assert that family law is feminist12. This is a severe accusation. However, they assert that the slant towards sympathy for mothers is evident in official statistics. Individuality and Family Structures: Aside from focusing on family law having to reflect the way that family structures are today, there are other viewpoints to consider. There is need to look at the way that individual lifestyles have been transformed over the years. This includes the manner in which people live and how they live. Over the past 30 years, there has been an increasing number of individuals living alone. Many people leave their homes at an early age to live an independent life. This provides more chances of individuals wanting to live independently for the rest of their lives. So, settling down and having a family [nuclear family] is not what many of these individuals want. Though many of them would want to initially leave their parents homes so that they can develop their own life styles and find a partner that matches them13. Some of the following statistics are perhaps ones that family law does not reflect at the moment. Analysing the British Household Panel Survey data reveals that 40% of all mothers can be expected to spend some time as a single parent.14 There are more people living alone. From 1961 and 2001, the number of single-person households doubled. Figures went from 14% to 30%. It is expected that this figure will increase to about 35% by 2021.15 Around 36% of children born in wedlock are likely to see their parents get divorce by they reach 16 years of age.16 With the above statistics it is clear that family law has to be accommodating to the idea that there will be an increasing number of children living with one parent17. Family law cannot or should not allow delay or a slow process, particularly during a separation. The law should help the process to move quickly in order to come to an agreement in which both parents feel that they have their rights to see their children. Since there will be many more cases coming up in years to come, family law should not let parents suffer because of its slow process18. It must be remembered that children grow up fast, and a few weeks can create rifts between parents and children, which makes things even more difficult19. Cohabitation and Family Law: How far can family law stretch itself This is an important question to ask because family may be targeted unduly. If one to considers cohabiting couple that lives together for 5 years or so, can family law really be applied to it Can separation law be applied to it This is difficult to answer. It is thought that family law cannot be applied to cohabiting partners or their arrangements because it would then leave very little room for those cohabiting partners who do not want to make any commitment20. In other words, if separation laws were applied to separating cohabiting partners, partners might as well have gotten married.21 This is a point at which family law does not reflect the changing nature of family today. Considering the above statistics, it must be asserted that with more and more people wanting to live independently22. With many people used to an independent life, it is unlikely that they will stay as couples for long [married or cohabiting couples]23. At this point, it is worth considering what the Law Commission has to say regarding cohabitation and financial claims. With marriage becoming less significant, the Law Commission, in its preliminary observation, says, "having been in a cohabiting relationship should enable some, but not all, couples to make financial claims on separation".24 In the same report, the Law Commission also highlighted points that could be very accommodating to cohabiting couples. Though there are other points to be considered along side the ones mentioned here, these alone are quite significant. The Law Commission asserts, "there is a strong case for making available to separating cohabitants the full range of financial orders available on divorce."25 They also assert, "a new scheme should enable those couples who did not wish to be subject to" a financial or formal arrangement "to be able to "opt out" by agreement. A scheme, which required cohabitants to "opt in" is likely to prejudice the economically vulnerable people it was designed to protect"26. It is equally important to note here that the Private Member's Bill in 2001-2 proposed registered civil partnerships for cohabitants. This shows that there is a significant degree of considering cohabitation in family law27. Cohabiting Step Families and Child Abuse: Family Law certainly does have its laws for child abuse. However, there is not enough emphasis on children that get caught in a cohabiting stepfamily28. A woman may have a child with her first cohabiting partner, and then shift into a more risky cohabiting arrangement with another man29. It is easier for cohabiting women to shift from one partner to another. This new partner is believed to be a great threat to the safety of the child30. Family law in the UK does not reflect these developments in family structures. It appears that family law tends to be focused more on the legal arrangements of two people living together, in marriage or some civil union and does not encompass all those that are born outside marriage31. Figure 3 in the Appendix shows the increasing number of births outside marriage. UK society and other western societies have changed over the past 30 years. Family law has to accept and reflect this fact. At the moment, there are an increasing number of people in cohabiting relationships with children who are unprotected. Many of these children will move into cohabiting stepfamilies. Conclusion: With many children already living in cohabiting families, and many also moving into cohabiting step families, the situation of growing individuals in the UK does not look bright. Many of these individuals are at risk, and family law does not reflect the growing need to protect such children. Family law also does not take into consideration the changing nature if individuality that has been taking place over the last 30 years. Individuals want to be more independent and live alone. Marriage is becoming less significant, and cohabitation is on the rise. A significant number of couples that do marry may separate while their first child is in his or her teens. Unmarried dating couples are also known to end up with a child unexpectedly. This is particularly a problem because many young people today do not want to get tied down or do not want to settle down and live a traditional family life. Family law needs to reflect the desires of individuals who lead faster and more independent lives. Family law also does not really reflect the need to grant parents their rights to see their children. Though both mothers and fathers feel that the process is slow, advocates of the Fathers' Rights Movement believe that more mothers win their cases. Advocates of the Fathers' Rights Movement also assert that the process is very slow, and thus helps to maintain a status quo. This status quo and slow process keeps fathers away from their children. This is thought to be one of the major reasons why many children grow up without knowing their fathers. In light of the ongoing appeals for fathers and generally for parents to be awarded their rights to see their children, family law needs to operate quicker and be more accommodating. In addition to this, it is finally worth mentioning that family law needs to also accept and act according to the changing nature of individuality and resulting family structure in the UK. References: Bailey harris 'new families for a new society In cretney (ed) family law: essays for new millennium (2002 Jordan) P67 Barlow and James, 'regulating marriage and cohabitation in 21st century Britain [2004] mlr 67 (2) pp 144-175 Booth A. and Amato P. (2001), 'Parental predivorce relations and offspring postdivorce well-being', Journal of Marriage and Family 63 (1), pp. 197-212. Burghes, L., Clarke, L., and Cronin, N. (1997), Fathers and Fatherhood in Britain, London: Family Policy Studies Centre, pp. 65-66. Child Support Act 1991 (c. 48) http://www.opsi.gov.uk/acts/acts1991/Ukpga_19910048_en_1.htm Civil Partnership Act 2004. http://www.opsi.gov.uk/ACTS/acts2004/20040033.htm Dame Elizabeth Butler-Sloss, P. and Hale, L.J. (2000, 20 November). Law - D v D (SHARED RESIDENCE ORDER), Court of Appeal. http://www.familieslink.co.uk/pages/law_ukcases_dvd.htm Ely, M., West, P., Sweeting, H., & Richards, M. (2000), 'Teenage family life, life chances, lifestyles and health: A comparison of two contemporary cohorts', International Journal of Law, Policy and the Family 14, pp. 1-30. Ermisch and Francesconi (2000), 'Patterns of household and family formation', pp. 38-40. Ermisch, J. & Francesconi, M. (2000), 'Patterns of household and family formation', in Berthoud, R. and Gershuny, J. (eds.), Seven Years in the Lives of British Families, Bristol: The Policy Press, p. 39. Ermisch, J. & Francesconi, M. (2000), 'The increasing complexity of family relationships: Lifetime experience of lone motherhood and stepfamilies in Great Britain', European Journal of Population 16, pp. 235-249. Gaulthier, A. H. (1999), 'Inequalities in children's environment: The case of Britain', Childhood 6 (2), pp. 243-257. Gibson 'changing family patterns in England and Wales over the last 50 years in katz et al (ed) cross currents (2000 OUP) ch 2 Haskey, J. (2001), 'Cohabitation in Great Britain: Past, present and future trends - and attitudes', Population Trends 103, pp. 4-25. Haskey, J., 'Trends in marriage and cohabitation: The decline in marriage and the changing pattern of living in partnerships', Population Trends, Vol. 80, 1995, pp. 421-29. King D., Hayden J. & Jackson R. (2000), 'Population of households in England to 2001', Population Trends 99, pp.13-19; and Social Trends 32 (2002), Office for National Statistics, p. 40. Malkin, C.M. & Lamb, M.E., 'Child maltreatment: A test of sociobiological theory', Journal of Comparative Family Studies, Vol. 25, 1994, pp. 121-30. Private Member's Bill in 2001-2 Proposing Registered Civil Partnerships for Cohabitants. Smart, C. and Stevens, P., Cohabitation Breakdown, London: Family Policy Studies Centre, 2000, pp. 33. Social Exclusion Unit, Consultation on Young Runaways, March 2001, p. 11 Social Trends 32 (2002), Office for National Statistics, London: The Stationery Office, p. 40. Solicitors Family Law Association, Fairness for Families: Proposals for Reform on the Law on Cohabitation, Autumn 2000. The Law Commission's Consultation Paper: Cohabitation, [31-05-2006] http://www.manches.com/text/news/news.phpid=76 Waite, L.J., 'Does marriage matter', Demography, Vol. 32, No. 4, 1995, pp. 483-507. Wellings, K., Field, J., Johnson, and A., Wadsworth, J., Sexual Behaviour in Britain: The National Survey of Sexual Attitudes and Lifestyles, London: Penguin Books, 1994, p. 116. Whitehead, B.D. and Popenoe, D., 'Sex without strings, relationships without rings', The State of Our Unions, The Social Health of Marriage in America, The National Marriage Project, Rutgers, The State University of New Jersey, 2000, p. 13. Appendix: Figure 1 Social Trends 32 (2002), Office for National Statistics, pp. 43. Figure 2 Population Trends 108 (2002), Office for National Statistics, 74-76. Figure 3 Social Trends 32 (2002), Office for National Statistics, p. 47. Read More