Family Law: Marriage - Essay Example

Family Law: Marriage You’re Name University Family Law: Marriage Within the concept of marriage there are many laws that govern this relationship body. Throughout the years they have changed drastically, especially in cases of divorce and where the property and assets of the couple have to be equally divided. This is also true in the idea of child support issues as well. With regards to the divorce proceedings underway between Jennifer and Kevin, the law will view all assets that are jointly attached to them and will thus divide them equally according to the law, unless of course there is an agreement reached between Jennifer and Kevin that is on mutual terms. Furthermore, if an economic law approach is used then during the post divorce hearings all property and assets will be evaluated on the following ideals: reliance, restitution, partnership, rehabilitation, and needs-based approach1. Also, one main and strikingly odd difference in marriage in the 21st century compared to marriages in the 20th century is the fact that the idea of marriage has become more opportunistic. At the same time this is stated it is found that the law has tried to implement strategies in order to safeguard and deter adverse repercussions from being placed on the female spouse if need be, especially where children are concerned. There are of course many positive reinforcements for Jennifer in the proceedings of this divorce she is currently facing. For one, she is not financially dependent on Kevin so the divorce in itself will have no bearing on her quality of life of its own. However, Kevin does have a responsibility to his son and regardless of Jennifer’s income the law is going to insist he pay child support. Also, in regards to housing, Kevin also has an obligatory position to his son in particular to ensure that he has safe, dependable and quality housing available for his growing needs so this is another issue that the law is going to take into consideration. The major issues of Jennifer and Kevin are of course focused hardily on the property rights of both parties, as there are a lot of different revenues coming into their home jointly. The current English Law shows that there is a discriminatory form of law that legislates the rules dividing property between couples, especially since it is found that English law does not allow for the identity of community property between partners, only what is separately owned is taken into account and normally sold then the profit divided evenly. But then again, there are other ways that the law can impose on handling divorce cases such as Jennifer and Kevin’s so that it will turn out fairly and just for both partners and again, especially with special consideration for the son being given. Marriage is not to be taken lightly within the UK and the courts don’t just hand out certificates of divorce like pieces of candy at Halloween to eager children. It must be proven that the relationship is wholly irreparable as well as the circumstances surrounding the need for the divorce must be proven to be sound and logical. This is because marriage is considered to be an obligatory role between one individual towards another and not something that you so easily dismiss and back away from, especially in an aspect to leave one person for another such as Kevin’s’ current attitude and activities show that he has not been faithful to his wife2. What the Oxford Center for Family Law has been finding in the 21st century is that the role of marriage and its meaning has greatly diminished in society which is raising many concerns of what might take place if the divorce rate continues to rise. Furthermore, the law also senses that what once use to be a role of personal responsibility to one another in the sense of marriage is now almost obsolete as couples marry to eagerly and then later realize they made a mistake. Such seems to be the case between Jennifer and Kevin as well as it would appear they both married early and perhaps some issues weren’t resolved before tying the knot which has lead to interference by others in the marriage. Furthermore, in this particular case with Jennifer and Kevin there is going to be a point of who has what rights and this has always been something not so easily determined by even the body of the law3. The role of rights in marriage are expressively important and even more so in divorce proceedings as the following example quoted here gives a better cohesive thought into individual rights and relationships: There is now a greater emphasis on rights, but the rights claims are more diverse, and stem not from marriage itself, but from other States, mainly to do with childhood or parenthood4 . Therefore, in divorce proceedings the law often evaluates how the rights of the couples are perceived on an individual basis since they may differ from past experiences. Also, some couples may be unfamiliar with how the rights are delegated and therefore the governing law body has to clarify and clear up all of the relative issues. One of these would have to do with Jennifer’s rights now that Kevin had her sign an agreement on their vacation home when she did not fully comprehend what it was she was signing to begin with. Therefore the legislative body will be sure and guarantee to Jennifer what her rights are and if the agreement she signed is binding in any way. In this regard the literature moves back to the pertinent issues of property between the couple and what the laws are. There are a great number of differences between property law and family law, especially in lieu of divorce hearings because everything is suppose to be fair and just for both partners5. Due to the fact that there have been extensive problems in marriage proceedings in regards to the idea of home-sharing, such as Jennifer and Kevin with their main home and then their vacation home, the Law Commission of England and Wales6 has been requested to reform some of the laws situated around the concept of property law and family law since much confusion has developed because of the past law addressing the situation of property. Family lawyers often state that the family home should be entitled to go to the female spouse of the marriage, especially if their have been children from the marriage. Furthermore, the Matrimonial Causes Act of 19737 seemingly offers protection for the female partner in a dissolving marriage, at least in regards to housing and some property issues as well. For example, though the financial relief for the female spouse might not be as generous as other statues would allow for, it guarantees that there will be some form of compensation by the ex-male spouse to the female spouse in regards to sustenance, however in Jennifer’s case she really needs no financial help from Kevin however the money he could pay her could go towards a savings for their son when he gets older. Obviously this could be an option if the couple were governed under this civil partnership8. However, this partnership in itself can not dictate who gets what claim to what property, which can only be defined by the actual property laws or some particular family laws themselves. Nevertheless, despite specific laws, property issues have always been rather difficult in divorces. For example in 2003, the Law Commission attempted to develop a property resolution to no avail because it did not change the negativities that were already in existence9. Therefore, more discussion has been required as well as deliberation to try and reach a mutual agreement to assist with the dividing of property. It would seem that Jennifer and Kevin would gain better leverage in the divorce proceeding by having their individual lawyers follow the reformed family laws rather than any presented by the Law Commission since the last attempt by this Commission failed to even take into consideration the individual needs of both parties in the divorce hearing10. Therefore as was stated, the Family Law Act will provide mediation to decide who will gain what property rights in a more approved and civilized manner. More often than not the English law now prefers to see mediation used in the way of resolving divorce disputes, especially in the issues of property11. Also, in regards to the agreement that Kevin had Jennifer sign, it would appear that it might not be held legal as it was not a form that was notarized by a judicial body in any way. If Jennifer and Kevin vouch for a mediating party to work through this then the dispute could be solved that way but if they go through the courts then it will be entirely in the hands of the judge to decide whether the agreement would be admissible in the court hearing and have any legal standing at all. In this regard it would not be wise for Jennifer but for Kevin it could possibly sway things in his way, it is simply uncertain what the decision might be with the traditional means of the law12. Furthermore, since the agreement that Kevin had Jennifer signed was focused on the matrimonial home, the ultimate decision on what the standing of the agreement would be and the order that would be passed down could be varied as was stated. The reason for this is because even without any agreement having been signed, there are different orders that can be passed down in regards to the matrimonial home and these could be from selling the property and dividing the revenue from it equally or it could be with awarding it to the female spouse, if in fact the children (if any) are in the custody of the mother13. There are different orders that could be passed by a deciding judge, and these are as follows: Transfer to one party sole ownership (with many judges favoring this for the female spouse as in the case of where the wife stabbed her husband but still was granted the access of the home and alimony payments by the14 judge15) A Deferred Interest Order where it is agreed upon both parties can remain in the home until a set period of time and an agreement is made as to what party will pay what bills. This is of course until the children are grown and can independently take care of themselves16 Mesher Order where the court grants that the ex-wife gets to remain living in the home rent free and the sale of the home is dated for when the children are grown and independently living away from their mother Martin Order is decided when it is agreed one party or the other (doesn’t matter who) stays in the house for the rest of their life independently but if any adverse occurrence takes place or perhaps they get remarried then they must vacate the premises 17 Obviously based on these statutes, Jennifer will more than likely inherit the matrimonial home due to their having a son together and also Kevin’s’ unreasonable actions. So regardless of the agreement Kevin had her sign, a judge is going to find in her favor due to the underlying circumstances involved. The case of White v White is a good example of how property and assets should get split equally in a divorce hearing regardless of whether or not both parties have substantial income of their own or not18. White v White defined how the judge normally rules in favor of the female spouse supposedly because the male is defined as the main bread winner for the family and thus should be required to continue this responsibility until any children that they have had together are grown. So this speaks volumes for Jennifer and Kevin’s case as it validates the fact that Jennifer will obviously receive child support for their son as well as possibly obtaining sole ownership of the matrimonial house. Furthermore, there have been a number of cases in Britain, England, and in other parts of the UK where wives have had children by other men prior to their marriage yet when they ended in divorce the men who weren’t even the children’s fathers were forced to pay child support. So it is not felt that there will be any legal problem with the issue of child support as the son will be taken care of even if it is enforced by the law surrounding divorce. Jennifer and Kevin are not so different from other couples who reside in the UK or in Britain in particular. There have been many families of royalty that have had their own share of divorces as well and the judges did not show favoritism simply because one of the spouses came from a wealthy family either. In the divorce case of Fergie and Andy, Fergie certainly wasn’t left walking away empty handed after the divorce decree19. It became nationally known that she received a rather large divorce settlement of 2 million pounds to be exact. In this case Jennifer’s husband of course has a lot of money and in that regard, based on prior divorce cases and the settlements that have been passed down; she should get a good percentage of alimony as well as child support which has already been mentioned. Also, the art that Kevin wants so desperately to hold onto will more than likely face being sold or given to Jennifer entirely. Again this is because of the fact that his affair is not going to settle well with any judge who has this case and from past history judges have already appeared biased against the husbands. So Kevin is going to have an even more difficult time standing before a judge as an unfaithful husband and apparently unfit father as well. Another divorce case that made headlines was titled the “war of the roses”20 and the reason it was so named is due to the fact that it turned into an alright verbal fight between the couple as the lawyers seemed to be egging on the problems. In this regard judges state that they are far better qualified to help and reach resolutions for couples in matters of divorce. Many judges state that lawyers are only in these types of cases for their own benefit and walk away with half of a couples assests such as in the case of the “war of the roses”21. In conclusion, this research has identified what a couple can expect in regards to divorce proceedings in Britain and the surrounding UK. It has been pointed out that regardless of a man’s financial standing or the females, the judges are going to rule in a way that is going to guarantee proper sustenance for the ex-wife and any children involved in the matter. Judges try to implement the correct methods and strategies to fairly and equally solve marriage disputes and although they don’t like to grant divorce decree’s cases such as Jennifer’s and Kevin’s are ones where it is perceived their path is at an end and divorce would be the best alternative. So, in finality, Jennifer will be granted child support, alimony, and even possibly have possession of the matrimonial house, depending upon what type of order the judge passes down. The possessions will obviously be divided equally but as was said, the judges are biased so of course Jennifer will probably walk away from the proceeding better than Kevin. Ultimately judges are trying to stress the fact that marriage is suppose to be forever and therefore when a couple splits normally someone is going to pay the penalty for it and that normally is the male of the household. Notes 1. John, Eeekelaar & Mavis, McClean, “Marriage and the Moral Basis of Personal Relationships,” Journal of Law and Society 31 (2004): 510-538. 2. W. Dnes, “The Division of Marital Assests Following Divorce,” Journal of Law and Society 25 (1998): 336-364. 3. Ezra, Hasson, “Wedded to ‘fault’: The Legal Regulation of Divorce and Relationship Breakdown,” Legal Studies 26 (2006): 267-290. 4. Joanne, Miles, “Property Law v Family Law: Resolving the Problems of Family Property,” Legal Studies 23 (2003): 624-648. 5. John, Mee, “Personal Property Rights and Relationships: Reflections on Reform,” Legal Studies 24 (2004): 414-450. 6. Sharing Pensions, Assets on Divorce, [online], and 26 May, 2006 [cited 26 May 2006; available on the World Wide Web from: http://www.sharingpensions.co.uk/assests2.htm 7. Terry & CO, UK Solicitors, Principles Applicable in Dividing the Matrimonial Assets, [online], 25 May, 2006 [cited 26 May 2006] ; available on the World Wide Web from: http://www.terry.co.uk/matcaus.html 8. The Daily Mail, “Divorce Case Judges are Deeply Biased against the Husbands,” The Daily Mail (2005): 1. 9. The Daily Mail, “Lawyers only Add to the Misery of Divorce say Judges,” The Daily Mail (2004): 1. 10. James Whitaker, “Downfall of Frump who couldn’t Join the Firm; Royal Divorce: Fergie and Andy’s Marriage was Doomed from the Very Start,” The Daily Record (1996): 1. 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