weeks 6-7 nov 2015 family law handouts stalford.docx

8/17/2019 Weeks 6-7 Nov 2015 Family Law Handouts STALFORD.docx

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Family Law (Law 316) 2015-16 Weeks 6-7 Professor Helen Stalforstalfor!li"#a$#%k

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F&'L L&W * +,*.'P,/&/ S,+.

Aims1) To situate your study of family law in the political, economic, social,

cultural and legal context of modern England and Wales;

2) To develop a critical understanding of the legal formation and statusof adult intimate relationships;

) To understand the concept of !parenthood" and how legalparenthood is ascri#ed$

%uring the next two wee&s of lectures, we are shifting the focus from

&nowing what the su#stantive family law says towards developing a more

critical perspective on the function, e'ectiveness and future of family law

in modern society$

To fully engage with this aspect of the course, you will #e expected to readthe relevant sections of the text #oo& A(% a range of other materials,

including academic articlescommentaries, government policy and

primary legislation$ *elevant materials will #e identi+ed at the end of

each section, #ut students who wish to perform well in this module will #e

willing to conduct their own legal research and identifyapply other

materials of relevance$

1# H. 'P,/&*+. ,F *./S&** F&'L L&W *

+,*.

1.1. Political and Economic Contexto The amily -ustice *eview 2.1. /see seminar 1)o The 0egal Aid, entencing and unishment of 3'enders Act /0A3)

2.12

1#2# So$ial an $%lt%ral +onte4t+ontrast

o R v. Inhabitants of Darlington /1452)6 !7n common parlance, the family

consists of those who live under the same roof, with the paterfamilias$$$those who form$$$his +reside" /per 0ord 8enyon, 9-)

o Blackwell v. Bull /1:)6 ‘Under dierent circumstances it means a

man’s household, consisting of himself, his wider, children and servants. It

may mean his wife and children, or his wife; in the absence of wife and

children, it may mean his brothers and sisters or his next of in, or it may

mean the genealogical stoc from which he may have sprung’ /per 0ord

0angdale)

Wito it!"atrick v. #terling $ousing %ssociation /1555) < All E* 4.=, 0ord

lynn de+ned the hallmar&s of a family relationship as mutual

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interdependence, the sharing of lives, caring and love for one another,

commitment and support for one another$

o &haidan v 'endo!a >200? @80 .,0 held that the term !as hus#and

and wife" in *ent Act legislation, should #e read as !as if they were

hus#and and wife", there#y concluding that a same sex partner who hadlived with the deceased in a spouseBli&e arrangement could #e treated as

family for the purposes of enforcing housing entitlement$

Le8islati"e enorsement of m%lti9li$ity of family formso The Cender *ecognition Act 2..<o The 9ivil artnership Act 2..


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security, pu#lic safety or the economic wellB#eing of the country, for

the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others$

&rti$le 12 !ight to marry and found a family

&oodwin v. - /Application (o$ 2:5=45=)$ ohnston and ,thers v. Ireland /Application (o$ 554:2)

&rti$le 1 !ight to non&discrimination. The grounds of

discrimination listed in Article 1< are not exhaustive$ or instance,

they and have #een held to include sexual orientation6 &haidan v &odin5'endo!a >2..


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• &rti$le 21 /Adoption)6 9hildren have the right to care and protection if

they are adopted or in foster care$ The +rst concern must #e what is #est

for them$ The same rules should apply whether they are adopted in the

country where they were #orn, or if they are ta&en to live in another

country$

@(9*9 is legally #inding #ut diJcult to enforce G #ut see per 0ord 8err

/dissenting) in6 ! 'on the application of () and others 'previously *( and others++

'ppellants+ v (ecretary of (tate for -or and ensions '!espondent+ >2.1=?

@89 1$ Argues in favour of direct applica#ility of Art @(9*9$

F%rter /eain8

• %fE and o-6 A #righter future for amily -ustice B A round up of what"s

happened since the amily -ustice *eview, 2.1<

/https6www$gov$u&governmentuploadssystemuploadsattachmentKdat

a+le


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, '&// ,/ *, , '&//@

.F** A'&//&.B

i# 'arria8e as a AStat%sB @

/e P 9ara 107)

‘In family law, marriage is not %ust a contract; it is also a status,

bringing with it rights and responsibilities, not only as between the

parties, but also as against third parties and the state’

Hrenda ale, in her article on EDuality and Automony in amily law, notes that6

3hroughout the history of family law there has been a debate between those

who see the relationship between man and woman, father and mother, as

essentially a matter of individual contract negotiated between them andthose who see it as a matter of status imposed 4rst by the established

5hurch and then by the (tate. -e do not need to regard marriage as a

religious sacrament to believe that it is more than a mere individual contract.

ll the text boos say that it is a status. 3he parties freely contract into it but

they are not free to write all the terms for themselves. 3heir relationship

aects third parties, most notably their children, as well as themselves. 3he

(tate, or rather the community as a whole, also has an interest....

ii# 'arria8e as a A+ontra$tB@

Radmacher v. &ranatino 9ara 75)

‘3he court should give eect to a nuptial agreement that is freely entered intoby each party with a full appreciation of its implications unless in thecircumstances prevailing it would not be fair to hold the parties to theiragreement.’

Hut see ale"s dissenting opinion

iii# 'arria8e as a /i8t

Article 12 E9*6 #chalk and o"f v. %ustria (&99 *o 3101;0> .+H/)

(2010)#

• ! 'on application of 6aiai and others+ v. (ecretary of (tatge for the

2ome 7epartment and others 89::< U=20 >?

• 7raper v. U= /App (o :1:4: E9*) /15:.)

• ! 'on the application of the 5(+ v !egistrar )eneral of 6irths,

7eaths and @arriages >2..2? EW9A 9iv 11

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• arriage /ameBex 9ouples) Act 2.1$ The Act, which applies to

England and Wales6

• allows same sex couples to marry in civil ceremonies

•

allows same sex couples to marry in religious ceremonies,where the religious organisation has !opted in" to conduct suchceremonies and the minister of religion agrees

• protects those religious organisations and theirrepresentatives who don"t wish to conduct marriages of samesex couples from successful legal challenge

• ena#les civil partners to convert their partnership to amarriage, if they wish

• ena#les married individuals to change their legal genderwithout having to end their marriage

+,*,*S F,/ '&//&.

• et out in ss#1-3 an te First S$e%le of te 'arria8e &$t 1::;andss#11> 12 an 13 of te 'atrimonial +a%ses &$t 1:73

'arria8e (Same Se4 +o%9les) &$t 2013

i# ener-relate $onitions

• ince arch 2.1< it has #een possi#le for same sex couples to marry

as well as heterosexual couples$

• rans8enere 9eo9leB '+& 1:73> s#11($) @ntil 2..=, transgendered people were not

permitted to marry a mem#er of the opposite sex to that of their

newly acDuired gender$B Corbett v. Corbett />1541? :, 0)6 held that a person"s

gender, for the purposes of marriage, is to #e determined

de+nitively at #irth$

B &oodwin v. - >2..2? 2 9* =44 6 E9t* found Mno Fusti+cationfrom imposing a #lan&et prohi#ition on transsexuals with regard

to exercising the right to marry$"B Bellinger v. Bellinger >2..? @80 The ouse of 0ords stated that

it was for arliament rather than the courts to change the law on such

an important matter #ut ac&nowledged that the current law was

incompati#le with the E9*B ener /e$o8nition &$t 200#- Part 2 an S$e%le 5 'arria8e (Same Se4 +o%9les) &$t

2013

ii# &8e-relate $onitions


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'arria8e &$t 1::> ss#2 an 3o arties to a marriage must #e over the age of 1$o 7f a young person is over 1 #ut under the age of 1:, they must

have o#tained the written consent of those who have parental

responsi#ility for them in order to marry$

iii# ProiDite e8rees of /elationsi9

s# 1 'arria8e &$t 1::6 marriage #etween persons related #y #lood

/consanguinity) or marriage /aJnity) is void$

• s# 6(2) of e 'arria8e (ProiDite e8rees of /elationsi9)

&$t 1:?6> ela#orates on what relationships fall within this exclusion6

B arentBchild

B CrandparentBgrandchildB HrotherBsisterB @ncleBnieceB AuntBnephew

• s#6 Se4%al ,Een$es &$t 2003 7t is a criminal oJce for a person to

have a sexual relationship with anyone who is within a prohi#ited

degree of relationship to himher$

Half-Dloo relati"es@

+ases of &o9tion@

n-Laws@B B v. -


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• ,&P& 1?61> s> 57

'+& 1:73> s#11()

'arria8e (Same Se4 +o%9les) &$t 2013 section 5 permits couples

in a civil partnership to convert them into a marriage$

"# 'ental +a9a$ity

• 9A 154, s$ 12/c) and /d)$

• Re #% 67ulnerable %dult with 'ental Ca"acit/8 'arriage9

/2..) >2..


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5


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1.

+L P&/*./SHP

1# ntro%$tion

• The 9ivil artnership Act 2..<

• #ecretar/ of #tate for >ork and Pensions v. ' the 9A 2..


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# e on8oin8 $ontro"ersy asso$iate wit +i"il Partnersi9

• Why not extend 9ivil artnership to opposite sex couplesL

• Why not extend 9ivil artnership to nonBsexual relationshipsL

F%rter /eain8

• A Harlow and - mithson !7s modern arriage a #argainL6 Exploringperceptions of preBnuptial agreements in England and Wales", 5hild and/amily 0aw Buarterly, Nol 2< /eptem#er 7ssue) /2) 2.12, .


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*'&//. +,H&G&,*

1# eInin8 A+oaDitationBB omesti$ iolen$e an 'atrimonial Pro$eein8s &$t 1:76

(s#1(2)) a man and a woman who are living with each other in thesame household as hus#and and wife"

B Family Law &$t 1::66 !two persons who, although not married to

each other, are living together as hus#and and wife or /if of the

same sex) in an eDuivalent relationship" /s#62(1)(a) as amended #y

the %omestic Niolence, 9rimes and Nictims Act 2..


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# e Le8al .Ee$ts of nmarrie +oaDitation

'aintenan$e

+oaDitation +ontra$ts

Parental /es9onsiDility

S%$$ession

a4ation an So$ial Se$%rity

& tac& v %owden >2..4? @80 14

- -ones v 8ernott> @89$ =, (ovem#er 2.11

5# e Jo%rney towars reformB 0aw 9ommission 24: /2..2) -uly 2..26 0aw ociety, 9oha#itation6

The 9ase for 9lear 0aw

B The amily 0aw /cotland) Act 2..B The 0aw 9ommission, !9oha#itation6 the inancial 9onseDuences of

*elationship Hrea&down", -uly 2..4 /0AW 93 (o .4)- +oaDitation /i8ts Gill 2013-1 - A rivate em#ers Hill from

0ord ar&s of enleyBonBThames to provide certain protections forpeople who live together as a couple or who have lived together asa couple; and to ma&e provision a#out the property of deceasedpersons who are survived #y a coha#itant; and for connectedpurposes#

F%rter /eain8

• 9 9rawford, A Coodman, E Creaves and * -oyce, !9oha#itation, marriage and child

outcomes6 an empirical analysis of the relationships #etween marital status and

child outcomes in the @8$$$" 5hild and /amily law Cuarterly, 2.12, -une, pp$14B

154

• E$ eaton !What"s mine is mine" /2.1) Aew 0aw *ournal Nol$ 1 7ssue 4=:=, 5

• or progress on the current 9oha#itation *ights Hill 2.1B1


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WH,BS H. & (,/ ''')@

Wat is 9arentoo@

• *e 8% /a minor) >15::? 1 All E* =44, 0 /at page =:: per 0ord3liver)6 Oarenthood, in most civilised societies, is generallyconceived of as conferring on parents the exclusive privilege of ordering, within the family, the up#ringing of children of tender age,with all that that entails$P

• 9hildren Act 15:5 /9A 15:5)6 parenthood per se does notnecessarily confer parental responsi#ility$ arental responsibility rather than parenthood determines what rights and duties a parenthas in relation to the child and is outside the scope of this lecture$

•

%iJculties of ascri#ing parenthood6 see6 :eeds @eaching $os"ital ;$# @rust v %


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OThe woman who is carrying or has carried a child as a result of theplacing in her of an em#ryo or of sperm and eggs, and no otherwoman, is to #e treated as the mother of the child$P

• Exception where child is adopted$

• urrogacy situations6 the surrogate is the mother /irrespective of whether she is genetically related)$Example6 An em#ryo is created from A"s sperm and H"s egg$ 7t isplaced in 9 who gives #irth$ 9 is treated as the mother$

(ote6 surrogacy agreements not enforcea#le /s$1A urrogacyArrangements Act 15:=$

7n relation to surrogacy arrangements, in order for commissioning

couple to #ecome legal parents they must either6

o adopt the child; oro o#tain a parental order under s$=< of the EA 2..:

/previously s$. of 155. Act)$

A parental order will only #e granted if certain conditions /set out ins$=< EA 2..:) are met6

o The child must #e genetically related to at least one of the

commissioning couple;o The surrogate mother /and her hus#and or partner) must consent

to the !parental order" /unless they cannot #e found or areincapa#le of giving consent) and these consents cannot #e givenearlier than six wee&s after the #irth;

o The commissioning couple must #e at least 1: and married, civilpartners or living !as partners in an enduring family relationship">prior to the 2..: Act the couple had to #e married?;

o The application must #e made within six months of the #irth of the child or for #irths #efore the 155. Act came into force withinsix months of that;

o (o money or other #ene+t other than reasona#le expenses musthave #een given or received #y the commissioning couple unlessauthorised #y the court /or a discussion of this provision see !e5 >2..2? 1 0* 5.5);

o The child must #e living with the commissioning couple /whomust #e domiciled in the @8) at the time of the application andthe court ma&es an order$

The e'ect of a parental order is that it ends any parentalresponsi#ility gained #y the surrogate and her partner and treats

the child as a child of the commissioning couple$ 7t also entitles the

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child to an amended #irth certi+cate /arental 3rders umanertilisation and Em#ryology *egulations 155< 7 155< (o 244)$

9onsider the case of6 !e D and E '5hildren+ 89:FF< 1-25 ?FGH'/am+. What do you thin& of the FudgmentL; what do you thin& ofthe actions of the commissioning parentsL %o you thin& theoutcome was rightL 7f so, whyL

The child"s father or other !parent"

• ather of the child is usually the #iological father$

• @nmarried heterosexual coupleo 7f a man was not married to a woman who #ecomes pregnant

have received fertility treatment, he may still #e treated asthe father if Othe agreed fatherhood conditionsP in EA 2..:apply to him$

o o what are the Oagreed fatherhood conditionsPLi The man has give a notice to the treatment provider

that he consents to #eing treated as the father of a childresulting from treatment to the woman;

ii The woman has also given notice the she consents tothe man #eing treated as the father; andiii (either party has withdrawn consent and the woman

has not as&ed for another man to #e treated as thefather /s$4)$

o 7f a man is treated as a father under these provisions noBoneelse can #e treated as the father /s$: /1))$

• 9ivil partners

o 7f the woman receiving treatment is not married #ut is a civilpartner, her female 9artner $o%l De $lasse as aA9arentB of te $il conceived via donation of spermandor eggs or em#ryo provided that partner consented to thetreatment$ n s%$ a $ase no man may De treate as tefater of te $il /s$


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#oth parties to the nonBmother #eing classed as a parent of the child$

• %eceased persono The position where the man wose s9erm was %se as

ie can #e regarded as he father if he consented in writingto the use of his sperm after his death to #ring a#out a childand that he #e treated as the father of any child$ This is thecase regardless of whether the treatment occurred in the @8 or elsewhere$

o ! v$ 2/1 ex parte 6lood >1554? 2 All E* :4 9A$

• perm donoro %onation in treatment services6 the donor is not to #e treated

as the father6 s$


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- ortin, !9hildren"s right to &now their origins G too far, too fastL" 5hild and/amily 0aw Buarterly 21(3) /2..5)

0 mith, !7s three a crowdL 0es#ian mothers" perspectives on parentalstatus in law" 5hild and /amily 0aw Buarterly 1?(2) /2..) 21

A Hainham, !Arguments a#out arentage" 5ambridge 0aw !eview 67' 2..:) 22

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weeks 6-7 nov 2015 family law handouts stalford.docx

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