Major Issues in the Family Law - Essay Example

Part Is section 25 of the Matrimonial Causes Act 1973 now out of as a means of deciding how to divide property on marital breakdown? The importance and the validity of section 25 of the Matrimonial Causes Act 1973 can be understood only by referring to the general framework of the specific legal rule. At the next level, the evaluation of the potential applicability of the particular section can be developed using the relevant case law. The Matrimonial Causes Act 1973 is an important legislative text in regard to the division of property in the context of a marital breakdown. The above Act ‘has been amended by the Matrimonial and Family Proceeding Act 1984’.1 It should be noted that the current social and economic conditions in Britain are different compared to those of the period when the above Act was introduced. However, still the Matrimonial Causes Act 1973 remains a key legal rule for resolving the disputes developed when having to divide the property on marital breakdown.2 The validity of MCA 1973 could be doubted. Reference should be made to the fact that in 1996, through the introduction of the Family Law Act, the Family Law in Britain was reformed. As a result, the pre-existed legal rules had been absorbed by the above Act in terms that any other similar law would not have power. However, it seems that in practice the Matrimonial Causes Act 1973 is still valid. This fact is highlighted in the study of Burton (2003) who notes that ‘for the time being the existing law, now largely contained in the MCA 1973, continuous in force’.3 Moreover, Lord Chancellor noted that the Family Law Act of 1996 is not appropriately customized to current social and judicial needs and for this reason the MCA 1973 should continue in force.4 Regarding specifically the section 25 of the MCA 1973, it should be noted that the above section actually sets the criteria used by the Court for the division of assets in the context of relationship breakdown. The above section is of high importance mentioning indicative the facts on which the Court should be based when having to rule in relevant cases. In accordance with the section 25 of MCA 1973, the decision of the Court in regard to the division of assets in the relationship breakdown can be based on one of the following acts: a) the financial and the physical status of each party/ spouse, b) the role that each spouse had in the accumulation of wealth and c) the age of each spouse. In fact, the age of each spouse indicates his potential to allocate the funds and the means for his/ her survival. It should be mentioned that the criteria set in section 25 of MCA 1973 regarding the division of assets among the spouses are indicative. This means that the Court would decide which of them are most appropriate for a particular case. The use of the relevant case law is always necessary in order for the judges to develop a fair decision. In general, the section 25 of MCA 1973 has been proved to be particularly helpful in the resolution of such disputes by the Courts. An indicative example is the case White v White where two important issues were highlighted by the Court: a) the amount of money awarded by the court to each one of the spouses is depended on the contributions of each spouse – referring to both the monetary and the non-monetary contributions, b) the level of the financial relief awarded to each spouse is in the discretion of the Court.5 In this context, it is possible for the Courts of different levels to be differentiated regarding their decision on such cases. In the above case, the Court of the first level focuses on Mrs White’s previous – before the marriage – financial status (giving to Mrs White a compensation of £800,000 - plus her sole assets) while the Court of Appeal was based on the value and the profitability of the business partnership6 - increasing the amount of compensation payable to Mrs White to £1.5 million. The potential of the Court to use various criteria when having to decide on the distribution of assets between the spouses has been made clear in the case of Miller v Miller (2006) where the Court held that the spouse who has been disadvantaged in terms of his/ her financial status because of the marriage should be appropriately compensated.7 In the case Charman v Charman (2007) the Court adopted a similar approach. In the above case the Court held that the amount of money awarded to Mrs Chapman should be £48 million – about 36.5% of the total fortune of spouses during the marriage.8 The specific decision has been unique in the England and Wales legal system in the following terms: the amount awarded to the wife has been the highest ever – the judge was based on the contribution of the wife to the development of the fortune at this level.9 In practice, this decision proves that the contribution of wife to the assets of the family is of high importance when the distribution of assets in the context of divorce has to be decided. The reasoning of the Court in the Charman v Charman case has been used in the McCartney v McCartney case. In the above case the Court held that the contribution of assets between the parties should be based on the principle of need which would refer to the following issues: ‘the financial needs, obligations and responsibilities of the parties; of the standard of living enjoyed by the family before the breakdown of the marriage; of the age of each party; and of any physical or mental disability of either of them’.10 There is also the case that both spouses are of a high financial status. In this case, the division of assets among them should not be based on their needs for survival. Reference is made to the present but also to the future. In such case, the Courts held that ‘where both spouses are earning well, payment of a lump sum can only serve the purpose of a division of property or compensation for non-material damage’.11 In the R v R case, the Court held that its decision in regard to the division of assets should be based on the following criteria: ‘a) the nature and value of the assets and b) the expenditure of the parties during the marriage, c) the value of properties’12 A problem seems to exist when the distribution of the assets among the parties has been already arranged between them – through a prenuptial agreement. It should be noted that the agreements of such type are not valid in the context of the English law; however, a different approach has been used by the Court in the Granantino case (2010); in the above case the Court has held that a prenuptial could be – under certain terms – be accepted by the Courts. Two were the cases that were mostly taken into consideration by the Court – for deciding on the validity of the prenuptial agreement in the specific case: the Miller v Miller and the Charman v Charman. Reference is made particularly to three principles developed by the Court in the Miller case: ‘need (generously interpreted), compensation and sharing’.13 In the Radmacher v Granatino case reference is also made by the Court to the MacLeod case where it is noted that ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.14 Under these terms and taking into consideration the events of the case, in Radmacher v Granatino case, the Court held that the prenuptial agreement signed between the spouses should be considered as valid as it cannot be proved to be unfair – as the term fairness is depended on the three principles discussed above. In accordance with the above, the section 25 of MCA 1973 provides the framework in the context of which the Courts can handle the disputes related to the division of assets in case of relationship breakdown.15 The specific legal rule has not become outdated. In fact, it is still quite valuable. On the other hand, the Family Law Act of 1996 has not provided an effective and integrated framework for the resolution of disputes in the specific field. Therefore, the MCA 1973, including its section 25, should continue to be used by the Courts. Part 2 John went through a ceremony of marriage with June in 1994. This was an inter-faith service conducted by a Buddhist monk that took place in a lakeside pagoda in the grounds of a luxury hotel. John and June had one child, Billy, born in 1996. In 1999 June left John, leaving Billy with him, saying that she was going to get a divorce, but John heard nothing from her after that. In 2002 John moved in with Laura. They never married, but had a child, Amy, in 2003. Laura already had a child, Rory (born 2000) from a previous relationship, who lived with them. In 2006 Laura was killed in a road accident, leaving John as sole carer of Billy, Amy and Rory. John is now planning to marry Rachel and the couple published a wedding announcement in The Times. This has led to the following: 1. June has contacted John to say that John cannot get married as he is still married to her, and also demanding to have Billy back as John has no right to him. 2. Laura’s parents have contacted John to say that now that John is getting married they are worried they might lose contact with the children. They say that they are entitled to have Amy. They also say that they will be getting in touch with Rory’s father so that he can take over care of Rory. John wants to marry Rachel and also to keep all 3 children. All 3 children want to stay with him. Questions: 1.Can John and Rachel marry? 2. Is John entitled to keep the children? 3. What legal steps might John or any of the people involved (adults or children) want or need to take in these circumstances? Answer In order to identify the most appropriate answers of the questions set above it is necessary to refer primarily to the events that are important in determining the law applicable on each particular case. Then the relevant solution can be suggested based on the legal rule, which is considered as most related to the events of the case study. 1. In order for John to be able to marry Rachel it is necessary for all relevant legal requirements to exist. At this point, the following problem appears: John married June during their trip (out of Britain) in 1994. The marriage was developed in accordance with the ethics of Buddhism. More specifically, in accordance with the case study a Buddhist monk conducted the ceremony. The ceremony itself could be doubted as of its validity. At a fist level, John and June are not Buddhists -no such information is provided in the case study. The ceremony could be characterized as void since no one of the parties is of the religion involved. However, even if the ceremony was typically valid, the following problem needs to be addressed: after their return in England the papers of the marriage had to be deposited to the Registry in order for the marriage to become valid (again no such information is provided by the case study). It is assumed that the specific action was omitted. However, in this way, the marriage is not considered as successfully completed. Through this point of view, John has not been married to June and he can marry Rachel. In such case, there would be no legal constraint for this marriage to take place. It should be noted here that even if the procedure mentioned above was followed, again the marriage could end without the consent of June. In this case the rule included in the section 1(2)(e) of the MCA 1973 would be used. The above rule states that in a marriage one of the parties can present a petition for divorce in case that he/ she can prove a five-year separation from the other party. In this case, June left John in 1999. Therefore, John could present such petition in 2006. 2/3. In order to identify the rights of John on the children it would be necessary to refer to the relationship between John and the mother of each of these children. Moreover, the family conditions in which these children have been raised should be taken into consideration. John has married June in 1994. Therefore, Bill who was born in 1996 was a child born within marriage. However, this marriage did not meet all the formal requirements and it could be considered as invalid. For this reason, John is considered as living with a child which is not officially his own child (there is no reference to the case study that John declared the child as his) probably thinking that his marriage with June was valid. The above problem could be resolved using the Family Law Reform Acts 1969 and 1987. In the context of the above Acts, ‘if the parties have lived together, hence with the child, for at least 3 years, the father would have the right to apply for a residence order or contact without the leave of the Court’.16 On the other hand, the fact that June left Bill to John in 1999 cannot lead to the assumption that her rights on the child have been lost. In fact, it is the Court that may take such decision if John brings the case before the Courts. In accordance with the above, John has the right to ask for the guardianship of Bill since: a) Bill is his child, even not formally stated and b) June left Bill to John, a fact that could be used by John to support his claim for the guardianship of Bill and c) John has such right based on the fact that he has lived with Bill up to 2006; in other words, the 3-years minimum of relevant article has been fulfilled in any way. When June left John, in 1999, already 3 years had been completed since the birth of Bill in 1996. Regarding his children with Laura, Amy, John has the following right: he can ask for the guardianship of Laura based on the fact that she is his child. Again, there is the problem that there was no marriage of the parents, i.e. John and Laura. The Family Law Reform Acts 1969 and 1987 could be used since John and Laura lived together from 2003 (when Amy was born) up to 2006 when Laura was killed. Again the 3-years minimum period required for the establishment of the right of John to present a petition for residence exists.17 In addition to the above, both in regard to Bill and Amy John can ask the Court to grant him the status of the parent. In the case of Bill such procedure could be used only if the marriage of John with June would be considered as invalid. The only requirement for the relevant petition to be accepted is that John proves that he is the physical parent of Bill and Amy. In this way, the Court will have just to verify the status of parent. It is noted by Burton (2003) that this status is awarded if it is proved that ‘the word parent would otherwise include the applicant if he was married to the mother’.18 Through the provision to him of the parental status for Bill and Amy John acquires the physical custody the children, i.e. the right ‘to have the children reside with him’ (Oliphant et al., 2007, p.85). In the case of Bill, John could be awarded a ‘joint legal custody’ in common with Jane; in the context of this scheme, John and Jane would agree that they would cooperate ‘in all the major decisions affecting their child’ (Oliphant et al., 2007, p.85). As for Rory, the right of John in regard to the potential guardianship of the child can be regulated using a similar scheme. However, at this point, the following problem exists: John is not the physical father of Rory. The physical father of the child would first have the right to present a petition for residence.19 In case of the physical parent’s refusal, John could refer again to the Family Law Reform Acts 1969 and 1987 and present a petition of residence for Rory.20 The following issues should be highlighted in regard to the Court involvement in the resolution of the relevant dispute: a) the Court would have the right to decide on the residence of the children since they are all under 16 and they are not adopted. Moreover, under the specific circumstances, the place where the children would stay should be clearly defined by the Court (The Court Service, Leaflet D185); b) the Court procedure could be avoided. In the case of Bill, John could possibly arrange with June to proceed to a ‘joint legal custody’. In the case of Amy and Rory however, it would be more difficult for John to reach an agreement with the grandparents. For this reason, for Rory and Amy it would be necessary for the Court ‘to exercise its powers under the Children Act 1989’ (The Court Service, Leaflet D185). C) In the case of Bill, the Court may decide that it would be preferable for the child to reside with his mother. John has the right to ask for a contact order (The Court Service, Leaflet D185). At this point, it should be mentioned that John could avoid using the Courts for the resolution of his conflict with June. The alternative legal actions available to John are the mediation and the collaborative family law process, a procedure established recently and which gives the right to the parents to discuss on all the facts of their dispute.21 In accordance with the rules governing the above procedure the lawyers of the parties are present in the discussion. In this way, it is ensured that the rights of both parties are adequately protected. References A. Books Barton, C., Douglas, G. (1995) Law and parenthood. Cambridge University Press Bryan, D. (2008) Straightfoward Guide to Family Law 6th. Straightforward co Ltd Burton, F. (2003) Family law. Routledge Burton, F. (1996) Guide to the Family Law Act 1996. Routledge Fortin, J. (2003) Childrens Rights and the Developing Law. Cambridge University Press Herring, J. (2009) Family Law. Pearson Education Mallender, P., Rayson, J. (2005) The Civil Partnership Act 2004: a practical guide. Cambridge University Press Oliphant, R., Ver Steegh, N. (2007) Family Law: Examples & Explanations Examples & explanations series. Aspen Publishers Online Probert, R. (2007) Family life and the law: under one roof. Ashgate Publishing, Ltd. Rodgers, M. (2004) Understanding family law. Routledge Statsky, W. (2003) Family Law: The Essentials. Cengage Learning Weisberg, K. (2008) Family Law. Aspen Publishers Online B. Online Sources The Court Service: http://www.courtservice.gov.uk/ The Department for Constitutional Affairs: http://www.dca.gov.uk/ The Ministry of Justice: http://www.justice.gov.uk/ The Home Office: http://www.homeoffice.gov.uk/ The Department for Education and Skills: http://www.dfes.gov.uk Resolution (formerly the Solicitors’ Family Law Association): at http://www.resolution.org.uk/ The General Register Office: http://www.direct.gov.uk/en/Governmentcitizensandrights/Registeringlifeevents/Marriagesandcivilpartnerships/DG_175717 Foreign and Commonwealth Office: http://www.fco.gov.uk/ C. Legislation Family Law Act 1996 Matrimonial Causes Act 1973 Children’s Act 1989 D. Case Law B (Children), Re [2008] EWCA Civ 695 (21 May 2008) Charman v Charman [2007] EWCA Civ 503 (24 May 2007) H v H [2007] EWHC 459 (Fam) (04 April 2007) MacLeod v. MacLeod (Isle of Man) [2008] UKPC 64 (17 December 2008) McCartney v McCartney [2008] EWHC 401 (Fam) (17 March 2008) McFarlane v McFarlane [2004] EWCA Civ 872 (07 July 2004) Miller v. Miller [2006] UKHL 24 (24 May 2006) Moore v Moore [2007] EWCA Civ 361 (20 April 2007) Mr E v Mrs E [2006] EWCA Civ 843 (27 June 2006) Norris v Norris [2002] EWHC 2996 (Fam) (28 November 2002) Otobo v Otobo [2002] EWCA Civ 949 (2 July 2002) Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42 (20 October 2010) R v R [2009] EWHC 1267 (Fam) (09 July 2009) S v S [2008] EWHC 1925 (Fam) (18 July 2008) W (Children) [2008] EWCA Civ 838 (02 July 2008) White v. White [2000] UKHL 54; [2000] 3 WLR 1571 (26th October, 2000) Read More