Law, Policy, and the Family - Essay Example

Running Head: FAMILY LAW Family Law Family Law: From the information given, it is reasonable to assume that no one party had behaved badly. Both James and Susan accept that divorce is inevitable. The prime area of disagreement is with regard to the house and the terms of maintenance for Susan. James’ job as the Sales Head involves a lot of time away from the country and hence away from the family. Moreover James, being ambitious and career-oriented, is not willing to sacrifice his career prospects. It is implicit that both of them have accepted the fact that their marriage will not work out any longer due to James’ lifestyle. Thus, the clause most applicable in this case is one of “unreasonable behaviour” on part of James. (Family Law Act 1996) It is important to note that the reason for divorce has very little bearing on how the court decides the award of maintenance amount, property ownership/share, etc (Cook 2006). Similarly, decisions regarding the children are made independent of property issues and spouse maintenance issues. The Issue of Property: Even though the Victorian house is inherited by James, there is no guarantee that he will retain his complete ownership of the house after divorce. Though Susan has not contributed financially to the home or the bills during the marriage, she still has a right to make a claim, for she has “contributed in kind”. Her complete care for the children allowed James to concentrate on his career. Thus, Susan has a “beneficial interest” on the property and the court will consider the house as “Matrimonial Property” (www.dca.gov.uk). The court even has the power to transfer ownership, if need be. Before deciding on how to share the property, the court will take into account the length of the marriage, the parties’ age, their lifestyle needs, their earning capacity and the children’s needs. (Family Law Act 1996) Essentially, when a couple seek divorce, a court can, and quite often does, divide up the matrimonial assets, his, hers and theirs, in any way it sees fit. The resolution of financial disputes in a divorce case is also known as “ancillary relief”. Regardless of who owns the property, the court may have it transferred to the other and this applies to all property owned either by James or Susan as well as the jointly owned ones. (Watson-Lee 2006) Ownership and Tenancy are two different things. Susan had indicated her wish to continue living in the house along with the children. Susan is being reasonable in making this claim. Given the previous case histories of divorce cases, it could be predicted that Susan will probably get to continue living in the Victorian House with her children. If James will not want to see Susan on a regular basis in the future, he may be asked to find a new house for himself. Such might be the probable verdict on tenancy. James may yet retain complete or a major share in the ownership of the house. It is unlikely, however, that both will occupy sections of the house - as it will be unsuitable for future relationships. (www.dca.gov.uk) Another significant factor is the status of the mortgage on the house taken by the couple. If the mortgage is still running then it makes the decision-making complicated for the courts. The rules governing the division of matrimonial assets are laid out in Section 25 of the Matrimonial Causes Act (1973) which lists all the factors that should be considered. In addition to that, the recently ratified Family Law Act (1996) is also fully into effect presently. So far as division of property in divorce is concerned the judiciary can be perceived as adopting the maxim "from each according to his ability to each according to his needs. (Watson-Lee 2006) Maintenance for the Twins: More than the adults, children are the chief concern for the court in divorce cases. The court takes various factors into account before deciding which party contributes how much. This is quite straight-forward. Once James’ essential expenses are calculated, what is left of his income becomes the “accessible income” (Cook 2006). The expenses for maintenance are then deducted from this accessible income. The present needs as well as the future ones of the children are taken into consideration. James earns 80,000 pounds annually, which is plenty. There is no issue regarding the maintenance of children, since James had agreed to pay (McFarlane 2005). Regarding the custody of the twins, the history of case verdicts strongly point toward Susan winning the custody. Considering that the children are quite young too, this should be an automatic choice for the courts. The decisions on “contact time” with James should also be fairly simple. Issues pertaining to maintenance of children come under the purview of the Child Support Agency (CSA). It decides weather the maintenance amount for the children will be paid on a weekly, monthly or one-off basis. Once the agency had figured the essential needs of the children, it then calculates the “top-ups” (McFarlane 2005). The top-ups are those expenses pertaining to the fulfilment of children’s life-style. Maintenance for Susan: While James wants Susan to seek full-time employment and purchase a property of her own, the latter had given no indication of such intentions. First of all, James has no right to make Susan work. Secondly, considering that Susan gave up her teaching job only to take care of the twins, his stance is further weakened. If Susan will insist on continuing her present life-style, she can have her way. In that case, James will be asked to pay maintenance for Susan as well, which he is unwilling to do. Susan is on good grounds here, legally. The procedure for calculating her maintenance is quite similar to the one applied for the children. Susan does part-time voluntary work for a charity, which would suggest that her life-style is not an extravagant one. James should not find it difficult to cater to this expense. (McFarlane 2005) Susan can have a say on how she will receive her maintenance money. She can choose between weekly or monthly payments. Or, if things have gotten so bitter that Susan does not trust James anymore, she can ask for a “Clean Break”, where all the financial payments will be settled once and for all. Or, she can ask for “Secured Periodical Payments”, wherein James will commit to the court to pay a certain amount over a given period of time. (Cook 2006) Another possible verdict is one in which Susan will be given a period of a year or two towards retraining and regrouping. Given that she is relatively young and is qualified as a teacher the court can choose this verdict. This would have been the first choice had James’ earning potential been poor. But since James can provide for Susan without much difficulty, such an outcome remains less likely. References: Department of Constitutional Affairs – Legal Policy – Family Matters, retrieved on 27th March 2007 from Cook, Michael J. (April 2006)Costs out of the matrimonial pot.(ancillary relief, Calderbank letters)(United Kingdom).  In Civil Justice Quarterly, 25, p261-272. McFarlane, Jemma. (Jan 2005)Ancillary Relief Handbook, 4th ed.(Book Review).  In Civil Justice Quarterly, 24, p162-163.  Family Law Act 1996, retrieved on 27th March 2007 from McBurnie, Ron. (June 1987)Sherdley v Sherdley - yes please and no thanks. (recent opinion affecting family tax law in the UK).  In Accountancy, 99, p21(2).  Murphy, Gary. (May 13, 1995 n9519)A fair test?(UK auctions and contract law).  In Estates Gazette, p66(1).  Beckett, Celia. (August 13, 1992 n928)Adopting a stance on the act. (many children would suffer from continued contact with family as required by UK adoption law).  In Community Care, p14(2).  Watson-Lee, Peter. (June 2006)New ancillary relief cost rules: costs for all.(United Kingdom).  In Family Law, 36, p450-453.  Radford, Lorraine, Hester, Marianne, Humphries, Julie, & Woodfield, Kandy-Sue. (July-August 1997)For the sake of the children: the law, domestic violence and child contact in England.  In Womens Studies International Forum, 20, p471(12).  Bridge, Caroline. (Dec 2006)Charman v. Charman.(ancillary relief in divorce)(United Kingdom).  In Family Law, 36, p1018-1019.  Douglas, Gillian. (Feb 2007)Rossi v. Rossi.(ancillary relief in divorce)(United Kingdom).  In Family Law, 37, p104-106.  Bailey-Harris, Rebecca. (August 2005)The paradoxes of principle and pragmatism: ancillary relief in England and Wales.(United Kingdom).  In International Journal of Law, Policy and the Family, 19, p229-241 Read More