Child and Family Law

School of Law
Child and Family Law LAW3116/LAW3161 2021-22
Module Leader:
Dr Amanda Loumansky / Dr David Keane

This handbook can also be accessed via My Learning

This handbook is available in a large print format. If you would like a large print copy or have other requirements for the handbook, please contact the Disability Support Service ([email protected], +44 (0)20 8411 4945).

The material in this handbook is as accurate as possible at the date of production. You will be notified of any minor changes promptly. If there are any major changes to the module you will be consulted prior to the changes being confirmed. Please check the version number on the front page of this handbook to ensure that you are using the most accurate information.

Your module handbook should be read and used alongside your programme handbook and the information available to all students on My Learning, including the Academic Regulations. Your programme handbook can be found on the My Learning programme page for your course.

Welcome 4
The module teaching team 4
Communication with the teaching team 4
Module overview 5
Expectations of studying this module 6
Attendance policy 6
Lateness policy 7
Mobile phones 7
Professional behaviour 7
Academic misconduct 7
Extenuating circumstances: 7
Assessment 8
How is your assignment mark agreed? 9
Feedback on your assignments 9
Learning Planner 10
Term 1 12
Term 2 26
Welcome
Welcome to Child and Family Law. There is no accepted definition of child law or family law, but it is broadly considered to cover the law governing children, parents and adults in close emotional relationships. It has a number of aims including to protect family members against physical, emotional or economic harm, to adjust following family breakdown, and to encourage and support family life. The understanding of a family has changed and will continue to change over time, and the nature of family law practice has similarly evolved. The role of the family courts is to continually reflect these changes and respond quickly, effectively and justly to the many challenges involved in a legal response to the very personal issues that arise. In this course you will study topics such as parental responsibility, child arrangements in private disputes, child protection, adoption, marriage, divorce, domestic violence, and many others. On behalf of the teaching team, we hope you will find the course both stimulating and engaging, but also very real in the impact the law can have on everyday lives and would encourage you to reflect and discuss in class. We look forward to seeing you in lectures and seminars.
– Dr Amanda Loumansky, ModuleLeader
The module teaching team
Please see below details of the teaching team for this module.
Module leader: Dr Amanda Loumansky
Dr Amanda Loumansky
Room number:
Online
Email:
[email protected]
Telephone number:
020 8411 5812
Office hours:
Mondays 14.00-16.00 by email or zoom

Module leader: Dr Amanda Loumansky
Dr David Keane
Room number:
Online
Email:
[email protected]
Telephone number:
020 8411 6809
Office hours:
Email to arrange

Communication with the Module Leader
It is not necessary to book an appointment to see me during the above office hours; you just need to email. I will send urgent and/or individual messages about the module to you by email, so it is important that you read your University email regularly. Any overall module and course feedback can also be given to the student voice leader for their programme which will be included in programme feedback sessions.
Module overview
Aims
This module aims to provide students with a knowledge and understanding of the principles of Child and Family law in order to enable students to extend their ability to evaluate and analyse the development of both the legal and policy framework regulating child and adult relationships. The module will explore the tensions arising from the use of state intervention in to the sphere of the family with regard to issues of privacy, autonomy and welfare as well as the effect of regulation of adult relationships.

Knowledge
On completion of this module the successful student will be able to:
Demonstrate comprehensive knowledge and systematic understanding of the historical development of the key principles of child and family law and their interpretation by the courts.
Demonstrate detailed knowledge of the competing policy issues in this area of law.
Reflect on the relationship between the law and social, historical and cultural contexts within which it operates.
Skills
This module will call for the successful student to:
Research individually and source appropriately a range of references, including library based and electronic ones.
Analyse difficult situations of significant legal complexity relating to current issues in child and family law.
Communicate coherently, succinctly and analytically in writing.

Lectures
The module will be delivered by a 90 minute weekly lecture and a weekly 1 hour seminar. Lectures and seminars will take place on line. The lectures will be directed at promoting the understanding of Child and Family Law in specific topic areas. The lectures will be interactive and students will be encouraged to
respond to questions and undertake short activities. Lectures will promote a critical analysis and understanding of the relevant legal, ethical and international issues.
Seminars
Seminars will be based on the discussion, in groups, of legal, moral, ethical and philosophical principles. The programme of seminars follows the pattern of the lectures and the content of each seminar is fully outlined in the handbook enabling the student to prepare each seminar in advance and participate fully in the discussion at each seminar. Students will be required to debate either individually or in groups. Oral communication skills will be encouraged during these sessions.

Formative assessment
There will be opportunities throughout the year for students to receive written and oral feedback on formative work that will be set during the module.
Summative assessment
Coursework: completion of a 2,500 word essay which will assess the student’s knowledge and understanding of the law relating to children, parents and the state. This will address all learning outcomes.
Coursework: completion of a 2,500 word essay which will assess the student’s knowledge and understanding of the law relating to marriage and divorce. This will address all learning outcomes.

Coursework 1 of 2,500 words in total due by Thursday 6 January 2022 at 16.00
Coursework 2 of 2,500 words in total due by Thursday 14 April 2022 at 16.00
Learning materials
Your online reading lists can be accessed from the My Study area of UniHub. They highlight essential and recommended reading for all modules you are registered on.
Expectations of studying this module Attendance policy
Students are expected to attend both lectures and seminars. Both will be recorded and available on Myunihub.

The programme of study you are undertaking is underpinned by developing professional behaviour and attitude. You are expected to behave in a professional, supportive manner to your peers and teachers. You must be prepared and ready to contribute where appropriate. Please remember that your University ID should be carried with you always and you must be able to identify yourself if asked to do so. Please conduct your email communication with fellow students, tutors and all relevant staff in a formal and courteous manner.

Students who attempt to gain unfair advantage over others through academic misconduct (contravening examination room rules, plagiarism, collusion, etc.) will be penalised by sanctions, according to the severity of the offence, which can include exclusion from the University. Links to the relevant University regulations and additional support resources can be found here:
Section F: Infringement of Assessment Regulations/Academic Misconduct: http://www.mdx.ac.uk/__data/assets/pdf_file/0027/424179/Section-F.pdf Referencing & Plagiarism: Suspected of plagiarism?: http://libguides.mdx.ac.uk/c.php?g=322119&p=2155601
Referencing and avoiding plagiarism:
http://unihub.mdx.ac.uk/your-study/learning-enhancement-team/online- resources/referencing-and-avoiding-plagiarism
The MDXSU Advice Service offers free and independent support face-to-face in making an appeal, complaint or responding to any allegations of academic or non- academic misconduct.
https://www.mdxsu.com/advice

There may be difficult circumstances in your life that affect your ability to meet an assessment deadline or affect your performance in an assessment. These are known as extenuating circumstances or ‘ECs’. Extenuating circumstances are exceptional, seriously
adverse and outside of your control. Please see link for further information and guidelines:
https://unihub.mdx.ac.uk/your-study/assessment-and-regulations/extenuating- circumstances
Assessment
The assessment is 100% coursework and consists of two essays of 2,500 words each (50% of the mark is awarded for each essay). Both components are aggregated to determine the overall module grade; in order to pass the module it is necessary to attain an aggregated pass level, not necessarily to pass each individual task. There will be an opportunity for formative assessment and feedback. Students will be required to display evidence of reading, research and reflection as a means of showing achievement of the knowledge and skills learning outcomes.
Formative assessment: Formative assessment is completed during your year of study and provides the opportunity to evaluate your progress with your learning. Classroom assessment is one of the most common formative assessment techniques although other activities and tasks may be used. Formative assessments help show you and us that you are learning and understanding the material covered in this course and allow us to monitor your progress towards achieving the learning outcomes for module. Although formative assessments do not directly contribute to the overall module mark they do provide an important opportunity to receive feedback on your learning.
Formative assessment
Deadline
Coursework 1 formative assessment
November 2020, date TBA
Coursework 2 formative assessment
February 2021, date TBA
Summative assessment: Summative assessment is used to check the level of learning at the end of the course. It is summative because it is based on accumulated learning during the course. The point is to ensure that students have met the learning outcomes for the course and are at the appropriate level. It is the summative assessment that determines the grade that you are awarded for the module.
There are 2 assessment components in this module: The table below specifies the associated deadlines:
Summative assessment
Weighting
Deadline
Feedback
Coursework 1
50%
Thursday 6 January 2022 at 16.00
February 2021
Coursework 2
50%
Thursday 14 April 2022 at 16.00
June 2021
The word count limit for each coursework is 2500 words.
The module leader has no authority to grant deferrals.

The following diagram provides an overview of the marking process for your module assessment. Details of the programme external examiner can be found in the programme handbook.

You will be provided with feedback on all coursework that is helpful and informative, consistent with aiding the learning and development process. The nature of the feedback shall be determined at programme level but may take a variety of forms including: written comments; individual and group tutorial feedback; peer feedback; or other forms of effective and efficient feedback.
Feedback will normally be provided within 15 WORKING DAYS of the published coursework component submission date as stated in the programme handbook.
Learning Planner
Date
Week
Lecture
Seminar
Staff
Reading
Link assessment
28/09/21
1
Introduction
No seminar
DK

5/10/21
2
Children, Parents and Parental Responsiblity
Introduction
DK

12/10/21
3
Children Act 1989 and Private Law Disputes
Children in Family Courts
DK

19/10/21
4
Private Law Disputes 2
Unmarried Fathers and PR
DK

26/10/21
5
Children Act 1989 and Child Protection
Private Law Disputes
DK

2/11/21
6
Reading Week
No lecture or seminars

9/11/21
7
Child Protection 2
Child Protection 1
AL/ DK

16/11/21
8
Adoption 1
Child Protection 2
AL/ DK

23/11/21
9
Adoption 2
Adoption 1
AL/ DK

30/11/21
10
Older Persons and Child Maintenance
Adoption 2
AL/ DK

7/12/21
11
Article 8 ECHR
Article 8 ECHR Explored
AL/ DK

FESTIVE BREAK

4/1/22
12
UN CRC
No seminar
AL/ DK

11/1/22
13
Marriage, Civil Partnership and Cohabitation
Older Persons and Child Maintenance
AL

18/1/22
14
Void and Voidable Marriages
Marriage and Cohabitation
AL

25/1/22
15
Forced Marriage 1
Void/Voidable Marriages
AL

1/2/22
16
Forced Marriage 2
Forced Marriage 1
AL

8/2/22
17
Domestic Violence1
Forced Marriage2
AL

15/2/22
18
Reading Week
No lectures or seminars

22/2/22
19
Domestic Violence 2
Domestic Violence 1
AL

1/3/22
20
Divorce 1
Domestic Violence 2
AL

8/3/22
21
Divorce 2
Legal Separation and Divorce
AL

15/3/22
22
Nuptial Agreements 1
Pre/Post-nuptial Agreements
AL

22/3/22
23
Nuptial Agreements 2
Revision and Discussion
AL

12/4/22
24
Revision and Discussion
Revision and Discussion
AL

Textbook/Kortext: Jonathon Herring, Family Law (Longman, 9th ed. 2019

Lecture 1 (Week 1): Introduction
Commentators are arguing that at the beginning of the 21st century, we are seeing a dramatic shift from the traditional model of mother-father-child.

Formalistic or observable traits objectively defined;
Function based, concerned with practicalities and contribution to society;
Self-definition – you are a family if you say you are;
Idealised definition – father, mother and two children.

“Family law is therefore a law of relationships, between adults, between adults and children and between both adults and children and between both adults and children and the State, as continually influenced by social and demographic changes. It is a body of rules of different types (some rules being so loose that they are basically discretions, a distinguishing feature of family law) and it defines and alters status, provides specific machinery for regulating property, protects both individuals and groups, and attempts in so doing to support the family structure of our society.” Burton (2012) Family Law, page4.
“A family law textbook written in the 1950s would have looked very different to ours. At that point in the social and legal history of the English family, marriage was almost universal, cohabitation almost unheard of, and divorce by comparison with today’s standards. It was therefore more natural to focus on law governing the ongoing relationship between the spouses (and not much else). Much has changed since then. The law relating to children has dramatically expanded, such that the parent-child relationship now takes centre stage, regarded by some commentators as the central relationship of family law. And rather than the functioning family, it is the pathology of family breakdown that has come to preoccupy the discipline. Divorce and its financial consequences, domestic violence, disputes over the upbringing of children, and protection of children from abuse within the home now constitute the core of family law.” Harris-Short and Miles (2011) Family Law, Text, Cases and Materials.
The Children and Families Act 2014 was given Royal Assent on 13 March 2014 and a number of significant family justice reforms have been introduced from 22 April 2014. In particular, the new combined Family Courts came into being in England and Wales as part of family justice system reforms. Then Justice Minister Simon Hughes said it was a “hugely important change” to what had been a “very dysfunctional system”. Family matters were dealt with by Family Division of the High Court, District Judges in County Courts and
Specialist Magistrate-led Family Proceedings courts. Criticisms included that cases are heard in secret; that judges accept word of social workers over parents; that hearsay evidence is
accepted in a way not usually allowed in ‘normal’ court. Additionally parents may not have a chance to challenge evidence against them. Overall it was found to be failing children and families because it was so disorganised and fragmented, and those using it often experienced chronic delay.
Reforms to the family justice system are aimed at improving the way the system functions as a whole. In particular, they are designed to make sure that the welfare of children is at the centre of decisions, reduce delays in proceedings, and encourage families to use the courts as a last resort to resolve disputes. One of the keys to reducing delay is the more effective management of existing judicial resources with more continuity. Better listing practices will improve the preparation and hearing of cases during case management. A consistent but firm approach will be developed to litigants, whether represented or not, to ensure that issues remain in focus and are addressed within the timetable set by the court.
Textbook reading: Herring, Chapter 1 ‘What is family law?’
Please note: No seminar in Week 1.

There is no complete agreement as to how adults regarded their children in the past nor, in fact, whether there was a clear concept of childhood or its corollary, parenthood. For example according to Aries: “medieval art until the twelfth century did not know childhood or did not attempt to portray it. It is hard to believe that this neglect was due to incompetence or incapacity; it seems more probable that there was no place for childhood in the medieval world.” – Philippe Aries, Centuries of Childhood (Penguin, 1973), p.31.
The position of children today has advanced significantly, with a child’s autonomy and rights to participate in society, including legal proceedings, increasingly recognised. There is a developing jurisprudence in which respect for children’s participatory rights in proceedings about them is more readily acknowledged. In relation to parents, who is a parent is, in the majority of cases, those who genetically produce the child, but a number of developments challenge the contemporary concept of parenthood, including: reproductive technologies; divorce rates; child psychology – children may have a ‘psychological parent’ who is not genetically a parent; and the so-called ‘fragmentation’ of fatherhood, difficult to explain with precision but referencing the fact that in law, fathers have no automatic rights and as a consequence, can have a variety of roles in a child’s life. In combination, parenthood is based more on day-to-day interaction, companionship and shared experiences, a role that can be fulfilled by biological, or adoptive, or any other caring adult but never by inactive, absent adult, and the law has endeavoured to recognise this.
Parental responsibility (PR) is the key term, located in s.3 of the Children Act 1989. It means those who are to have legal responsibilities and rights attached to being a parent.
Textbook reading: Herring, Chapter 8 ‘Who is a parent?’ and Chapter 9 ‘Parent’s and children’s rights’

What does a child and family lawyer do? Pick two entries from ‘A Day in the Life of…’ and describe the experience: https://www.familylaw.co.uk/l/day-in-the-life-of
Read the following: Adam Wolanski, ‘Reporting the Courts: Children, Experts and Open Justice in the Family Division’, available at: https://www.familylawweek.co.uk/site.aspx?i=ed1737
Do the family courts need to be less secretive?
Read the following: Family Law Week, ‘Sperm Donors Given Leave to Apply for Contact with Children’, available at: https://www.familylawweek.co.uk/site.aspx?i=ed111500
What did the court decide in Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam)?
Read the following: Law Commission, ‘Surrogacy Reforms to Improve the Law for All’, 6 June 2019, available at: https://www.lawcom.gov.uk/surrogacy-reforms-to-improve-the- law-for-all/
What reforms to the law on surrogacy are being proposed by the Law Commission and do you agree?

Private law cases involve disputes between parents over the upbringing of children. There is an assumption parents promote welfare of their children and usually no need for court intervention. Hence the rules only apply in cases of dispute – with the exception of divorce, where the court must consider arrangements concerning children even where there is no dispute. Section 8 of the Children Act 1989 brings together the orders appropriate for private disputes involving children. These include:
child arrangement order;
specific issue orders; and
prohibited steps orders.
Note that a child arrangement order replaces two previous orders known as residence order and contact order. They have the exact same meaning, in that a child arrangement order is just a residence order and contact order combined. The most common circumstance in which an application for s.8 orders is made is when the relationship of the parents breaks down.
Textbook reading: Herring, Chapter 10 ‘Private disputes overchildren’

Read the following and answer the questions.
Rachel Langdale QC and James Robottom, ‘The Participation and Involvement of Children in Family Proceedings’ Family Law Week (2012), available at: http://www.familylawweek.co.uk/site.aspx?i=ed96057
What is the old or historic approach to children in family court proceedings?
What are the circumstances in which children should attend court?
Should children be able to give oral evidence and what are the dangers?
How important are a child’s ‘wishes and feelings’ in deciding cases?
Is it a good idea that children meet judges?

When the Family court decides an issue about the upbringing of a child, the child’s welfare must be the court’s paramount consideration. In other words, the most important factor is what is best for the child. The criteria considered is set out in the Children Act 1989 (s1(3)) and is commonly called in this context the Welfare Checklist. It covers seven key considerations:
The wishes and feelings of the child concerned;
The child’s physical, emotional and educational needs;
The likely effect on the child if circumstances changed as a result of the courts decision;
The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision;
Any harm the child has suffered or may be at risk of suffering;
Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs;
The powers available to the court in the given proceedings.
This lecture examines further the caselaw in Private Law Disputes and how these factors are reconciled in practice.
Textbook reading: Herring, Chapter 10 ‘Private disputes over children’

What is the meaning of parental responsibility (PR) under the Children Act 1989? Is there a difference between men and women in relation to PR?
How does an unmarried father get PR?
What is meant by child abduction? Read the following: Family Law Week, ‘Parental child abduction has almost doubled in a decade’, available at: https://www.familylawweek.co.uk/site.aspx?i=ed106422
Read the following two cases, decided together: Re W ; Re B (Child abduction: unmarried father) [1998] 2 FLR 146. What were the facts and what did the court decide?
Read the following case: J (A Child – Hague Child Abduction Convention – Physical Chastisement and Homophobic Abuse) [2018] EWFC 85. Do you agree with the decision?

Child abuse is increasingly common in contemporary western society and provokes widespread public concern. This concern highlights the potential for conflict between parental rights and the child’s rights in relation to protection from harm. It is another example of the tripartite relationship between the state, parents and children. Originally from the Ivory Coast, Victoria Climbie had been sent via France to the UK for a better life by her parents. The results of a post mortem carried out on her body showed that she had died from hypothermia. She was malnourished, kept in a damp environment and her movement had been restricted. She had 128 separate injuries – showing that she had been beaten with a range of both sharp and blunt instruments. The last days of her life were spent living in a cold unheated bathroom, her hands and feet tied together, inside a black bin bag, lying in her own urine and excrement.
When she died Victoria was 8 years and 3 months old. Lord Lamming who chaired the public inquiry into her death said that there were at least 12 key occasions when the relevant services had an opportunity to intervene – but they had failed to do so. Lord Laming made a number of recommendations for reform of the law in this area. The government accepted many of his proposals and issued a Green Paper, Every Child Matters.
The Children Act 2004 is the legislation enacted as a response to the Green Paper. It
includes: A Children’s Commissioner appointed to promote recognition of the views and interests of children; The various agencies working with children must work in partnership to improve the child’s welfare; Creation of local boards to coordinate the work of these agencies; Children’s Services authorities have to publish a Children and Young People’s Plan to set out their strategy for services for children and relevant young people. These changes did not prevent the death of ‘Baby P’ in 2007. Despite having been visited by social workers
some 60 times, he died from injuries including a broken back, broken ribs, mutilated fingertips and fingernails missing.
In terms of the law, the powers and duties of Local Authorities (LA) in respect of children whom it is feared may be suffering harm can be divided into 3 categories: 1. provision of services; 2. investigation; 3. compulsory intervention. The State can remove children from their parents which is one of the greatest powers it has. The history of law reveals tragedies resulting from excessive intervention in family life as well as a gross failure to intervene.
Textbook reading (Lectures 5 and 6): Herring, Chapter 11 ‘Child protection’ (pp.621-678)

1. What orders are available to the court in private law disputes? What is the checklist of factors that must be taken into account?
3. Read the following case: Re L, Re V, Re M, Re H (Contact: Domestic Violence) [2000] 2 FLR
334. What were the facts and what are the rules on contact where there has been domestic violence?
What did the court decide in relation to a Specific Issue Order on religious education in Re G [2012] EWCA Civ 1233?
Read the following article, Bindu Bansal, ‘‘It’s Good to Share’ – Should there be a
presumption of equality between parents when it comes to caring for their children?’ Family Law Week (2012), available at: http://www.familylawweek.co.uk/site.aspx?i=ed97451 What are the arguments for and against Shared Residence Orders?
5. Discuss the following scenario. Sam is a student in London. He meets Maria, a student in Sweden, on an online forum. They start a relationship and she soon moves to London. They eventually graduate, move in together and have a child, Magnus. When Magnus is three years old, and attending nursery in London, Maria becomes dissatisfied with the relationship. She decides she wants to leave Sam and move back to Sweden to raise Magnus. She maintains that her mother will be there to help her. Sam does not wish for Magnus to live in Sweden. He considers Magnus to be English, and settled where he is. He points out it takes several days of travel to get to Maria’s family home in rural Sweden.
Discuss the arguments of: (i) Sam; (ii) Maria; and (iii) what you think the family court should decide.

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REMEMBER NEXT WEEK [WEEK 6] IS READING WEEK – THERE WILL BE NO LECTURE OR SEMINARS.

Lecture 6 (Week 7): Child Protection 2
The Children Act 1989 introduced a new statutory criteria that must be met before compulsory state intervention is allowed. As Standley summarises: “One of the main philosophies of the law relating to children is that parents, not the state, have primary responsibility for their children. This philosophy is reflected in the law governing child protection. Sometimes, however, when parents fall down in their responsibilities, the state intervenes. Thus, criminal sanctions may be imposed on parents who harm their children, and the civil law also provides protection in various ways. The main Act of Parliament governing the law of child protection is the Children Act 1989. Local authorities by means of their social services departments have the primary responsibility for making provision for children in need and for dealing with children who suffer, or who are at risk of suffering,
child abuse.” – K. Standley Family Law (2006) p. 421
S. 31(2): A court may only make a care order or supervision order if it is satisfied –
that the child concerned is suffering, or is likely to suffer, significant harm, and
that the harm, or likelihood of harm, is attributable to
the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
the child’s being beyond parental control.

Subsection 2 sets out what are commonly referred to as the threshold criteria which must be met before the court can go on and consider whether or not to make a care or supervision order. If the threshold criteria are met the court will then decide – applying the welfare principle and the non intervention principle – whether the child’s best interests require that a care order is made. What is the standard of proof required to satisfy the court that the child is likely to suffer significant harm? The court is in effect being asked to predict the future. How do they do this? What evidence is sufficient to prove a likelihood of something happening? See for example:
Textbook reading (Lectures 5 and 6): Herring, Chapter 11 ‘Child protection’ (pp. 6621-678)

What happened to Victoria Climbie and Baby P?
What orders are available to the court to protect children?
Was the threshold criteria met in Re B (A Child) [2013] UKSC 33? What did Lady Hale argue, dissenting?
Read the following case: F (A Child – Placement Order- Proportionality) [2018] EWCA Civ 2761. What are the facts and decision, and do you agree?
Read the following report: Local Government Association Research Report, ‘The Impact of the Baby Peter Case on Applications for Care Orders’ (2010), available at: https://www.nfer.ac.uk/media/1630/bpi01.pdf Can you summarise the impact of the case on care orders and more widely on the work of Local Authorities in relation to child protection? Note: You will find the main points in the Executive Summary (pp. vi-ix)

In English law adoption refers to the process by which a child’s legal parentage is entirely and irrevocably transferred from one set of adults, usually the birth parents and vested in other adults – namely the adoptive parents. Note the continuing decline in adoptions over
time, until a small increase in recent years. Why was there such a steep decline in adoption?
Increased availability of contraceptive advice and treatment;
Availability of abortion;
Overall birth rate was reducing;
Changing attitudes towards unmarried mothers and the availability of state benefits and reasonable employment prospects;
Adoption is now seen as a service for children as opposed to the provision of children for infertile couples.

The 2002 Act sought to improve the adoption rates in a number of ways, hence the recent small rise in numbers. The Act extends the category of those who can adopt as part of the process of encouraging adoption. There is a checklist to be performed under s.1(4) of the 2002 Act in deciding on an adoption order.
Textbook reading (Lectures 7 and 8): Herring, Chapter 11 (pp. 686-717)

What are the solutions for Local Authorities in terms of accommodating children in care? Which is the best option in your view?
Read the following case: S-B (Children) [2009] UKSC 17. What did the Supreme Court decide?
Read the following article, Jacqui Thomas, ‘The Cost of Care’, Family Law Week (2013), available at: http://www.familylawweek.co.uk/site.aspx?i=ed112494
What are the arguments in relation to the cost to Local Authorities of children in care?
Read the following case: Re DE (A Child) [2014] EWFC 6. Outline the facts and the decision. What is the relevance of Article 8 ECHR?
Read the following piece: Claire Fitzpatrick, ‘Why have so many people in prison spent time in care as children?’, The Conversation (26 October 2016), available at: http://theconversation.com/why-have-so-many-people-in-prison-spent-time-in-care-as- children-66941
Do you agree with the author that we need to avoid the prosecution of children in care?

An adopted child is the legitimate child of the adopter(s). This means the Adoption Order (AO) will have the following effects: PR for the child is given to the adopters; Adoptive parents can make all decisions about the child that other parents can make; AO extinguishes parental status and PR of any other person. There is one exception where a step-parent adopts their partner’s child, where their partner retains PR.
A major concern with adoption is that it terminates parental status of the birth parents. Those troubled by this have sought to supplement adoption with an institution which will provide security and appropriate status for new carer and child without ending completely the status of the birth parents. The ACA 2002 introduces the status of special guardianship (s.115) as an alternative to adoption.
Textbook reading (Lectures 7 and 8): Herring, Chapter 11 (pp. as above)

Is the State correct to try to increase adoption rates?
Outline the necessary steps in the path to adoption under the Adoption and Children Act 2002.
What are the facts and decision in: Re C (A Child) (Adoption: Duty of LocalAuthority)
[2008] 1 FLR 1294?
Contrast with the decision in: Re A (Father: Knowledge of Child’s Birth) [2011] 2 FLR 123.
What are the challenges involved in international adoptions? Read the following short newspaper articles on international adoption:
New York Times Parenting Blog, ‘In an Orphanage, But Not Orphaned, in Sierra Leone’, 18 December 2014, available at: https://parenting.blogs.nytimes.com/2014/12/18/in-an- orphanage-but-not-orphaned-in-sierra-leone/?_r=0
Moscow Times / The Guardian, ‘The Russian parents challenging stigma surrounding adoption’, 31 August 2015, available at: https://www.theguardian.com/world/2015/aug/31/russia-adoption-stigma-ban
You may be interested in reading further on private international law and its regulation of international adoptions: Hague Conference on Private International Law (HCCH), ‘1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption: 25 Years of Protecting Children in Intercountry Adoption’ (2018), available at: https://assets.hcch.net/docs/ccbf557d-d5d2-436d-88d6-90cddbe78262.pdf

The position of older people is of increasing importance in family law. No legislative
definition of ‘older people’ – perceived as retirement age or age at which state pension becomes payable (65). One-third of all adults in the UK are grandparents. Grandparents now the single most important source of pre-school child care after parents. 44% of children were receiving regular care from grandparents – but 42% of grandparents lose contact with their grandchildren when parents separate. Grandparents do not have an automatic right to contact with their grandchildren – do they deserve greater recognition in family law?
Other issues impacting older people in family law include arguments around whether there is a duty to look after older people outside of State obligations; and the issue of abuse of elderly people, which is far less prominent than child abuse. The context of a rapidly aging population in the UK strengthens the argument that family law procedures need to focus more on older persons.
The related question of child maintenance has long exercised politicians and policy-makers. In 1991, the Child Support Act was introduced to replace the former court-based system, setting up the Child Support Agency (CSA). The CSA operated amid massive controversy, and was widely considered to have cost far more than it recouped from supposed recalcitrant
‘non-resident parents’, usually fathers. The shift in the ethos of child maintenance from 1991 must be considered a major failure, and tasking the State with recouping payments via an agreed formula disincentivised a more cooperative attitude between parents as to how best to share maintenance of children following relationship breakdown. Today, a more humane approach seeks agreement between parents first, with recourse to legal measures as a back-up only in case of non-agreement; with a penalty applied to both the resident and non-resident parent as an incentive to agree without State involvement. Whether this improves or detracts from provision for children has yet to be fully ascertained, although it is clear the previous system under the 1991 Act was ultimately counter-productive
Textbook reading: Herring, Chapter 12 ‘Families and older people’ and Chapter 6 ‘Property on separation’ (pp.202-218)

Read the following and summarise the position of the courts on special guardianship, David Bedingfield, ‘Adoption or Special Guardianship?’, Family Law Week (2007), available at: http://www.familylawweek.co.uk/site.aspx?i=ed563
What are the facts and decision in: Re R (A Child) [2005] EWCA Civ 1128?
What are the facts and decision of the European Court of Human Rights in Chbihi Louboudi and others v. Belgium [2014], Application no. 52265/10
How did the court differentiate between adoption and step-parent adoption in ReP
(Step-Parent Adoption) [2014] EWCA Civ 1174?
Read the following decision: RE B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29. What is the future for post-adoption contact?

Article 8 ECHR reads:
8(1): Everyone has the right to respect for his private and family life, his home and his correspondence.
8(2): There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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.
Article 8 raises issues around children’s rights per se; adult rights which involve children; questions around contact; child protection; and other areas. For example, in relation to child protection any removal by the state of a child will automatically constitute an infringement of Article 8, but may be justified by taking into account welfare of the child. It must be necessary which clearly includes interests of the child. There is little difficulty in justifying intervention in order to protect a child from abuse. Furthermore abused children have right to respect for private life that can be protected only by intervention. Thus Article 8 imposes positive obligations on the State to protect a child from abuse. In addition, Article 3 requires State to protect a child from torture and inhuman or degrading treatment. If the state is to
intervene in child’s life, it must be shown that level of state intervention is proportionate to risk child is suffering. In K and T v Finland [2000], a newborn baby was removed from her mother at birth with concerns mother suffered from psychoses. As the mother had never behaved violently towards her other children and appeared calm at birth, it was held to be a disproportionate response to remove the child. However the ECtHR stressed a wide margin of appreciation in deciding whether to remove a child and only where it is clearly disproportionate (as in K and T) will the Convention be infringed. The Court has also found violations of Article 8 on account of the undue length of proceedings, or for insufficient involvement of the parents in the decision-making process. The Court’s approach is relevant in many other areas of family law and its impact is still evolving. These will be explored in the lecture.
Textbook reading: Herring, All sections on ‘Human Rights Act 1998’ in Chapters 1, 8, 9, 11

Note: Cases are summarised on the ‘Factsheet of the European Court of Human Rights on Children’s Rights’, available at: https://www.echr.coe.int/Documents/FS_Childrens_ENG.pdf
Summarise the facts and the decision of the European Court of Human Rights in D.H. and others v. Czech Republic [2007] and Orsus and others v. Croatia [2010]. What do these cases indicate about the plight of children of Roma origin in Europe?
What was the Court’s decision in Bogonosovy v. Russia [2019]? Do Russian grandparents have similar rights to UK grandparents?
Read the decisions of the European Court of Human Rights in Dogru v. France [2008] and Kervanci v. France [2008]. Do you agree? Does France have a different approach to the UK when it comes to expressions of religious belief in schools?
Read the decision of the European Court of Human Rights in Odievre v. France [2003]. Do you agree with the Court that there is no absolute right under Article 8 to trace your roots?
What were the facts in Paradiso and Campanelli v. Italy [2015] and do you agree with the decision?

The UN Convention on the Rights of the Child was adopted by the General Assembly of the United Nations by its resolution 44/25 of 20 November 1989. This was the end of a process which had begun with the preparations for the 1979 International Year of the Child. That year, discussions started on a draft convention submitted by the Government of Poland.
Children had been discussed before by the international community. Declarations on the rights of the child had been adopted by both the League of Nations (1924) and the United Nations (1959). At present almost every country in the world has signed the Convention, making it by far the most ratified international human rights instrument. While laying down common standards, the Convention takes into account the different cultural, social, economic and political realities of individual States so that each State may seek its own means to implement the rights common to all. There are four general principles enshrined in the Convention. These are:
Non-discrimination (article 2): States parties must ensure that all children within their Jurisdiction enjoy their rights. No child should suffer discrimination;
Best interests of the child (article 3): When the authorities of a State take decisions which affect children, the best interests of children must be a primary consideration. This principle relates to decisions by courts of law, administrative authorities, legislative bodies and both public and private social-welfare institutions;
The right to life, survival and development (article 6): The right-to-life article includes formulations about the right to survival and to development, which should be
ensured “to the maximum extent possible”. The term “development” in this context should be interpreted in a broad sense, adding a qualitative dimension: not only physical health is intended, but also mental, emotional, cognitive, social and cultural development. The right to life also includes freedom from malnutrition, starvation and disease;
The views of the child (articles 12 and 13): Children should be free to have opinions in all matters affecting them, and those views should be given due weight “in accordance with the age and maturity of the child”.
Supervision of the Convention is provided by the UN Committee on the Rights of the Child, which monitors its implementation. It is composed of ten members who are independent and serve in their individual capacity. The mechanism for monitoring is a system of periodic reports, called State Reports. These must be submitted by all states parties within two years of signing and every five years from then. Committee has issued guidelines as to what it expects from state reports. A new system of indiviual complaints akin to taking a case is also available, but the UK has yet to sign the relevant Optional Protocol to the Convention. The most recent report of the UK saw the issuing of Concluding Observations by the UN Committee on the Rights of the Child in June 2016. These will be explored in the lecture.
No textbook reading.

END OF TERM 1.

Having successfully completed this unit you should:
Have a clear understanding of the law relating to marriage.
Be able to discuss and apply the law in this area constructively and critically.

Based on exchange of consents.
No formal ceremony
Consent created the marriage.
Valid in England and Wales until 1753
Disadvantages – informality = uncertainty.

Act said must have public ceremony.
Consent of minors parents to be obtained.
Entries made in an official register.
Act applied to all except the royal family.

Introduction of civil marriage.

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.” Hyde v Hyde (1866) LR 1 P & D 130, 133
Involves four conditions:
Must be voluntary – we will return to this in later lectures.
Must be for life – unless divorce – again we return to this point in later lectures.
Must be monogamous – offence of bigamy.
Must be heterosexual – has now been removed.

Vervaeke v Smith [1983] 1 AC 145
R (on the application of the CPS) v Registrar Gen of Births, Deaths and Marriages [2003] I FCR 110.

“Marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state.” Redmacher v Granatino [2010] UKSC 42, para 132

According to Herring “If a man and a woman live together, believe themselves to be married, and present themselves as married, the law presumes that they are legally married. Where the presumption does apply anyone who seeks to claim that the couple are not married must introduce evidence to rebut this presumption. The policy behind this is that a couple who believe themselves to be married should not suffer the disadvantages that would follow from being found not to be married without their being clear evidence. In many cases the
presumption can be rebutted by showing that they do not appear on the register of marriage” Herring, p.46

Chief Adjudication Officer v Bath [2000] 1 FLR 8
H and W went through Sikh marriage.
Lived together as husband and wife for 37 years.
H paid tax and national insurance as a married man until his death.
W applied for widows benefit.
Refused on the grounds that the temple where the ceremony took place was not registered and therefore it could not be presumed that a valid marriage existed in accordance with the Marriage Act 1949.
Held: the marriage was valid. The parties had not knowingly and wilfully failed to comply with the relevant statutory provisions.
The marriage had been entered into in good faith.
Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460
W applied for a divorce from her husband. Met in Germany but had married in Uruguay.
Married by proxy.
Lived together as husband and wife for 35 years.
Relationship broke down.
H claimed no marriage had taken place and he had forged the wedding certificate.
W argued that there was a presumption of marriage arising from the duration of the cohabitation.
Held: the marriage was valid. The presumption of marriage could only be rebutted by clear evidence that there had been no marriage ceremony or that formalities had not been complied with.

1972 transsexual marriage allowed in Sweden.
How does the law define the sex of a person?
Corbett v Corbett [1970] “WLR 1306
“It appears to be the first occasion on which a court in England has been called on to decide the sex of an individual, and consequently there is no authority which is directly in point.
Since marriage is essentially a relationship between a man and a woman the validity of the marriage in this case depends in my judgement on whether the respondent is or is not a woman. I am not concerned to determine the legal sex of the respondent. The criteria must be biological. The law should adopt the chromosomal test…these should determine the sex of the person for marriage.”
Cossey v United Kingdom [1987] 2 FLR 111
Wanted to be recognised in her new gender.
Wanted the right to marry.
Failed in the English courts.
Also failed in the European Court of Human Rights – although majority was much smaller.

Goodwin v United Kingdom [2002] 2 FLR 487
European Court of Human Rights decided that denying transsexuals the right to marry was a breach of articles 8 and 12.
No longer appropriate for a persons gender to be determined by biological conditions present at birth.
No significant factors of public interest to weigh against the interest of the applicant in obtaining legal recognition of gender reassignment.
The fair balance inherent in the convention tilted in her favour. Accordingly a breach of article 8.
With regard to article 12 – one man and one woman could not be determined by purely biological criteria. The applicant lived as a woman but had no possibility of marrying a man, was in a relationship with a man and would wish to marry only a man…the very essence of her right to marry had been infringed and there was no justification for barring her from enjoying that right under the circumstances.
Bellinger v Bellinger [2003] UKHL 21
High Court, Court of Appeal and House of Lords all relied on biological nature of gender and ignored psychological evidence.
The court did make a declaration under the Human Rights Act that s.11 of the Matrimonial Causes Act was incompatible with articles 8 and 12 of the ECHR.

Act came into force 5 December 2005.
Originally could not take place on religious premises but law has now changed so that ceremonies are allowed where the religious organisation permits and the premises have been approved for such ceremonies. However religious organisations cannot be made to conduct civil partnership ceremonies.
Civil partnerships can only be entered into by members of the same sex.
Parties sign a civil partnership document in the presence of a civil partnership registrar. Two witnesses are also necessary.
Civil partnerships are ended by dissolution, death or annulment.
Does not require consummation to be valid.
Couple treated the same with regard to tax and pensions, paternity or adoption leave, flexible working arrangements for parents of young children.

As of 29 March 2014 same sex couples can get married in England and Wales.
Reading Chapter 3, Herring, Marriage, civil partnership and cohabitation

Are grandparents sufficiently recognised in family law? Summarise the caselaw and arguments in Rhiannon Davies, ‘Grandparents and their Status in Family Law’, Family Law Week (2010), available at: http://www.familylawweek.co.uk/site.aspx?i=ed54992
Is the law any different in the United States under the Supreme Court decision in
Troxel v. Granville [2000] 530 U.S. 57?
Read the following short newspaper piece:https://www.theguardian.com/commentisfree/2015/oct/15/half-absent-fathers- pay-nothing-alison-sharland-varsha-gohil Are you surprised that “only 52% of separated mothers have any arrangement at all for fathers to pay towards their children”?
The article quotes Fathers4Justice: “We strongly support non-payment of child maintenance if you are being denied access to your child.” Is this a position that would have wide support among non-resident fathers in your opinion?

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OBJECTIVES:
Having successfully completed this unit you should be able to:
Appreciate the historical development of the law relating to void and voidable marriages.
Understand the impact of the legislation and judicial interpretations of it.
According to Herring (p.44) “The law relating to marriage draws an important distinction between those marriages which are annulled and those which are ended by divorce. Where the marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be brought to an end.”

“A void marriage is one where although there may have been some semblance of amarriage there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. This needs to be distinguished from a non-marriage, where the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. It is a nothing in the eyes of the law. The distinction is of great practical significance because if it is a void marriage then the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no powerto
redistribute property and the couple will be treated as an unmarried couple” Herring (p.48)
Hudson v Leigh (Status of Non-Marriage) [2009] 3 FCR 401
Religious ceremony in South Africa.
Was to be followed by a civil ceremony in the UK later on.
No civil ceremony took place.
Relationship broke down.
Court asked to consider whether the couple were legally married?
Held: in deciding what constituted a non marriage the court should take into consideration firstly whether the ceremony or event set out or purported to be a lawful marriage. Secondly whether it bore all or enough of the hallmarks of marriage and thirdly whether the three key participants (most especially the officiating official) believed, intended, and understood the ceremony as giving rise to the status of lawful marriage and lastly the reasonable perceptions, understandings, and beliefs of those in attendance.

Section 11 Matrimonial Causes Act 1973
A marriage celebrated after 31 July 1971 shall be void on the following grounds only
that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986. That is to say where –
the parties are within the prohibited degrees of relationship; or
either party is under the age of 16 or
the parties have intermarried in disregard of certain requirements as to the formation of marriage.
that at the time of the marriage either party was already lawfully married or a civil partner;

[note: c requirement for the parties to be a man and a woman is no longer relevant.]
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
The parties are within the prohibited degrees of relationship Absolutely prohibited
Parent Sibling
Sibling’s child Child
Grandparent/grandchild Adopted child/adoptive parent. Prohibition not absolute
Child of former spouse – but not until both parties over 21 and the child was never ‘a child of the family.’ Child of the family is defined as a child who has lived in the same household as the other and been treated by the latter as a child of his or her family.
B v United Kingdom (36536/02) [2006] 1 FLR 35
Marriage Act 1949 (Remedial) Order 2006, SI 2007/348.
Either party is under the age of 16
Pugh v Pugh [1951] 2 All ER 680
Wife Hungarian, husband British army officer.
Met and married in Austria 1946.
Wife was 15 years old at the time of the marriage.
1950came to live in England.
October 1950 lived apart.
Hungarian law – marriage was voidable.
Austrian law – valid marriage.
English law – was this a valid marriage or not?
“According to modern thought, it is socially and morally wrong that persons of an age at which we now believe them to be immature and provide for their education should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth. Child marriages, by common consent, are believed to be bad for the participants and bad for the institution of marriage. Acts making carnal knowledge of young girls an offence are an indication of modern views on this subject. The remedy that Parliament has resolved for this mischief and defect is to make marriages void
where either of the parties is under sixteen years of age.”
The parties have intermarried in disregard of certain requirements as to the formation of marriage
(c) The parties are not male and female
S-T (formerly J) v J [1998] Fam 103 (note although no court proceedings are needed to end a void marriage a court can still make an order stating the parties legal positions.

S.12 Matrimonial Causes Act 1973
“A marriage celebrated after 31 July 1971 shall be voidable on the following grounds only.
That the marriage has not been consummated owing to the incapacity of either party to consummate it.
That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.
That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.
That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage.
That at the time of the marriage the respondent was suffering from venereal disease in a communicable form.
That at the time of the marriage the respondent was pregnant by some person other than the petitioner.”
That the marriage has not been consummated owing to the incapacity of either party to consummate it.
Baxter v Baxter [1947] 2 All ER197
That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.
Horton v Horton [1972] 2 All ER 871
That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.
Duress?
We will come back to this point during our lectures on Forced Marriage. Mistake?
Ewing v Wheatly [1814] 2 Hagg Cas 175
Valier v Valier [1925] 133 LT 830

City of Westminster v C [2008] 2 FCR 146
K and N appealed against a declaration that the marriage of their son C was not valid under English law.
K and N domiciled in England.
C lacked capacity to consent to marry under English law.
Marriage not precluded in Bangladesh.
Held: public policy objection to the marriage.

READING:
Please read the relevant chapter in your text book and the following:-
Albie Sachs (2009) The Secular and the Sacred: The Dual Challenges of Same-Sex Marriage.
Chapter 9 in The Strange Alchemy of Life and Law, Oxford University Press.
Albie Sachs was appointed as a judge by Nelson Mandela to serve on South Africa’s first Constitutional Court. Before this he worked tirelessly as a human rights activist and was seriously injured by a bomb placed in his car by South African security agents. He lost his left arm and is blind in one eye. A copy of this chapter is available on moodle.
Come prepared to discuss the following:
What are the legal differences between marriage and cohabitation in the UK?
Should these differences remain?

Objectives
Having successfully completed this unit you should:
Be able to engage in critical and informed debate about the development of the law in relation to arranged and forced marriages.
According to Hayes and Wlliams’ (p.27) “Consent is regarded as an essential component of marriage. As Lord Penzance said in Hyde v Hyde marriage involves a ‘voluntary union’ between a man and a woman. Under section 12(c) of the MCA 1973 a marriage is voidable if ‘either party to the marriage did not validly consent to it, whether in consequence of duress. with regard to duress, the question is what degree of duress suffices tovitiate
consent.”
NS v MI [2006] EWHC 1646 (Fam)
“Arranged marriages are perfectly lawful…such marriages are not in any way to be condemned. On the contrary…arranged marriages are to be supported as a conventional concept in many societies. And for that very reason they are, I emphasise, not merely to be supported but to be respected. Forced marriages in contrast, are utterly
unacceptable…forced marriage is intolerable. It is anabomination.”

A marriage celebrated after 31 July 1971 shall be voidable on the following grounds only
that either party to the marriage did not validly consent to it, whether in consequence of duress….
If a person is forced into a marriage he or she can apply for a decree of nullity under section 12(c) of the Matrimonial Causes Act 1973. The marriage is void on the ground that the petitioner did not consent.

Why nullity?
P v R (Forced Marriage: Annulment Procedure) [2003] 1 FLR 661
“In cases where a forced marriage is alleged the proper course is for a petition under S.12 to be brought before the court. I am informed…there is a real stigma attached…if a divorce
decree is pronounced…the court should where appropriate grant a decree of nullity and as far as possible remove any stigma that would otherwise attach to the fact that a person in the petitioner’s situation has been married.”

Proceedings under section 12 must be instituted within 3years.
After 3 years petition can only be lodged if permission obtained from the court.
Note the objective nature of the test
Hussein v Hussein [1938] 2 All ER 344
Threat of being killed by husband was sufficient to negate consent.
Szechter v Szechter [1971] 2 WLR 170
The test was whether the will of one of the parties had been “overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party himself is not responsible), to life, limb or liberty so that the constraint destroys the reality of consent to ordinary wedlock”

Singh v Singh [1971] 2 WLR 963
“Where I ask in the present case is there any possible permissible suggestion of fear on the part of the young lady? A sense of duty to her parents and a feeling of obligation to adhere to the custom or religion there may be, but of fear not a shred of suggestions.”

Hirani v Hirani (1983) 4 FLR 232
Court of Appeal said marriage could be annulled on the basis of duress if threats or pressure were exerted on the petitioner so as to overbear the will of the individual and destroy the reality of consent.
“The crucial question was whether the threats or pressure were such as to overbear the will of the individual and destroy the reality of consent. Duress whatever form it took, was a coercion of the will so as to vitiate consent.”
NS v MI [2007] 1 FLR 444
“There were many ways in which duress or coercion might be inflicted such that one
person’s interests were overborne, and one had to have regard to the relationship between the parties…where the influence is that of parent or other close and dominating relative and where the arguments and persuasion are based upon personal affection or duty, religious beliefs…the influence may be subtle, insidious, pervasive and powerful. In such cases…very
little pressure may suffice…Arranged marriages are perfectly lawful…such marriages are not in any way to be condemned. On the contrary…arranged marriages are to be supported as a conventional concept in many societies. And for that very reason they are, I emphasise, not merely to be supported but to be respected….Forced marriages in contrast, are utterly unacceptable…forced marriage is intolerable. It is an abomination.” Munby J.

Re SK (An Adult) (Forced Marriage Appropriate Relief) [2005] 3 All ER 421
Solicitor instructed by the Foreign and Commonwealth Office – applied to the High Court.
High Court granted Order – family must disclose her whereabouts.
SK to contact British High Commission.
Interview with her must take place on her own.
Parents were prohibited from arranging marriage ceremony.
Family must not threaten, intimidate or use violence towards SK.
“…the court must not hesitate to use every weapon in its protective arsenal if faced with what is or appears to be a case of forced marriage.”

SH v NB [2009] EWHC 3274 (Fam)
“Where a marriage was invalid under Pakistani law and voidable under the law of England and Wales, but no decree of nullity was possible due to lapse of time…the appropriate course was to make a declaration that the marriage was not recognised as a valid marriage in the jurisdiction of England and Wales.”

Enables victims to have their marriage declared invalid as opposed to obtaining a divorce.
However lack of knowledge that this can be achieved.
Disadvantage – cannot petition for financial relief.

Please read the relevant chapter in your text book and cases needed to answer the following questions.
When can a woman marry her son-in-law?
Maria and Dave went through a ceremony of marriage in 1990. They have two children. Their relationship has broken down and Maria has moved out of the family home. At the time of the marriage, Maria, to Dave’s knowledge was already married to somebody else. Advise Dave
Prior to the marriage, Maria, whose birth certificate records her as a male, had undergone a sex-change operation. At the time of the marriage ceremony Maria
genuinely believed she could get married as a female. However she didn’t tell Dave the truth that she was a transsexual. Dave has only just discovered the truth.
Ahmed and Sally have been married for 10 years and have 5 children. It has just been discovered that at the time of the marriage Sally was 15 years old. Both Ahmed and Sally want the marriage to continue.
Is this a valid marriage? If your answer is ‘no’, what, if anything, can the parties do?
What is their position if they have just discovered they are brother and sister?
Dean does not want to have children and insists on using a condom when he has sex with his wife. Has their marriage been consummated?
Sharon and Wayne had sex before they were married. On the way to their honeymoon after their wedding reception, there was a car accident. Wayne is now confined to a wheelchair and is impotent. Can Sharon petition successfully for nullity on the ground of Wayne’s incapacity?

Objectives
Having successfully completed this unit you should:
Be able to identify the key principles and concepts relating to the Forced Marriage (Civil Protection) Act 2007
Be able to engage in critical and informed debate about the development of the law in this area.

Non-molestation order under s.42 Family Law Act 1996
In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions-
Provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent;
Provision prohibiting the respondent from molesting a relevant child.

A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.
a person can be guilty of an offence under this section only in respect of conduct
engaged in at a time when he was aware of the existence of the order.
A person guilty of an offence under this section is liable –
on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine or both;
on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum or both.

A person must not pursue a course of conduct –
Which amounts to harassment of another, and
Which he knows or ought to know amounts to harassment of the other.

The police have used section 44 to prevent a child from being taken abroad to be married. An EPO normally lasts 8 days with a possible extension of 7 days. This would have given the local authority time to apply to the court for a more long term order to protect the child – eg a care or supervision order under section 31.

Re SK (An Adult) (Forced Marriage: Appropriate Relief) [2005] 3 All ER 421
“The court must not hesitate to use every weapon in its protective arsenal if faced with what is or appears to be a case of forced marriage.”

Kidnap?
Child abduction?
False imprisonment?
Assault and battery?
Threats to kill?
Public order offences?
Sexual offences?
Blackmail?
Decision to prosecute lies with the CPS. Code for Crown Prosecutors states that criminal proceedings can only be initiated if the case satisfies the realistic prospect of conviction test and the public interest test.
Problem if criminal offence was committed overseas – CPS only has jurisdiction to prosecute offences that take place in England and Wales.
Exceptions to this rule are that criminal proceedings can be initiated against a person who commits a sexual offence against a child under S.72 of the Sexual Offences Act 2003. If a child is taken abroad for the purpose of marriage and forced to enter into a sexual relationship the CPS may be able to prosecute.

Existing laws not explicit enough that pressurising someone to marry is wrong.
Government said legislation was necessary to act as a deterrent.
Family Law Act 1996 – message that forced marriage is a form of domestic violence.

In 2009 1,682 cases of forced marriage were reported to the Unit. 86% women, 14% men. In 2011 the Unit provided advice and support for 1,468 cases of forced marriage.
66 involved individuals who were disabled.
Of the 66 – 56 had learning disabilities.
8 had physical disabilities.
2 had both.
10 victims described themselves as lesbian or gay.
The youngest victim was 5 years old.
The oldest victim was 87 years old.

FMU gave advice or support in over 1200 cases related to possible/forced marriage
11% victims under 16 years.
39% under 21.
1 in 5 callers were male victims.
135 involved those with disabilities.
8 instances involved victims who identified as LGBT

Act came into force on 25 November 2008
Inserts 19 new sections into the Family Law Act 1996

An order can forbid families or individuals from:
taking a person abroad for marriage;
taking their passport away;
intimidating someone into agreeing to marry.
Require family members to reveal the whereabouts of the individual being forced into marriage.

Hand in the victim’s passport to the court.
Disclose victim’s whereabouts to the court.
Return victim to the jurisdiction.
Allow victim to be interviewed by a member of the British High Commission.

S.63C(2) application can be made by the person at risk or a third party acting on their behalf.

Those directly concerned….
Those involved in other respects…
Orders can be directed against unnamed persons.
Blanket order could be made prohibiting any person from facilitating arrangements for the victim to marry.

S.63(O) failure to comply with a FMPO constitutes contempt of court – punishable by up to two years in prison.
S.63(I) Power of arrest to be used where evidence of threats of violence.
If a person is forced in to a marriage he or she can apply for a decree of nullity under s.12 (c) of the Matrimonial Causes Act 1973.
Consider the following cases:-
P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661 Re SK [2004] EWHC 3202 (Fam)
Re K [2005] EWHC 2956 (fam)
Chief Constable and another v YK and others [2010] All ER (D) 59
Re G and D (Risk of forced marriage: Forced Marriage Protection Order) [2010] NI Fam 6.
Re A (Forced Marriage Protection Orders) [2012] EWHC 435

A criminal offence under s 121 Anti Social Behaviour, Crime and Policing Act 2014.
Breach of a Forced Marriage Protection Order is an offence under s 120 2014 Act.

Sends a clear message that forced marriage is unacceptable.
Provides the victim with more accessible remedies.
Three year bar.

Please read the relevant chapter in your text book and with reference to decided cases come to the seminar prepared to discuss the following problem question.
Jen’s parents settled in England and she has always lived here. On her 16th birthday she went to visit family in Ruritania and was introduced to Jafar. Two weeks later Jen reluctantly went through a ceremony of marriage with Jafar. On their wedding night Jen was horrified to discover that Jafar was a drug addict and she refused to have sexual intercourse with him until he gave up his drug habit. A few months later Jen returned back to the UK leaving Jafar in Ruritania. She then met Aladdin and went through a ceremony of marriage with him in a Registry Office. She used a false name as she didn’t want her father to find out and prevent the marriage.
Advise Jen, Jafar and Aladdin on the validity of their various marriages.
Should the concept of the voidable marriage be abolished?

Lecture 16 (Week 17): Domestic Violence 1

Having successfully completed this unit you should:
Be able to critically evaluate the law relating to domestic violence.
Be able to discuss and apply the law in this area.

The cross government definition of domestic violence and abuse is:
“any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, emotional controlling behaviour.”

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the women is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she
performs everything…Under this principle, of an union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquire by marriage…The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with
this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds…But…this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour.” W. Blackstone (1765) ‘Commentaries on the Laws of England’
“…the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” M. Hale (1736) ‘The History of the Pleas of the Crown’

The development of this area of law is an example of the public private divide. Liberal democratic societies uphold the value and desirability of individual rights which must be protected from unwarranted encroachment by any external body, particularly one representing the state. In theory no individual should be sacrificed for the collective interest.
According to Harris-Short, Miles and George “…even once adults theoretically enjoyed equal protection under the law, commentators continued to highlight the legal system’s failure to treat domestic violence as seriously as other offences. This failure to intervene was
attributed to a widespread perception that domestic violence is a private matter.” (2015, 221)

Campaigning work of Erin Pizzey and Chiswick Women’s Aid and Refuge. See www.womensaid.org.uk
UNICEF paper ‘Behind closed doors’ identified that an estimated 275 million children worldwide are exposed to violence each year.

YOU MAY ALSO READ ...  week 2 discussion 6230

The BCS measured levels from October 2005 to September 2006
29% of women had experienced partner abuse since the age of 16 – this includes non-sexual abuse, sexual assault and stalking by a partner or ex-partner.
Among female victims serious sexual assault was most likely to be committed by a partner or ex-partner.
When reporting on the British Crime Survey the BBC stated that during 2005/2006 60,000 women had been raped, 660,000 women had been sexually assaulted and 120,000 women had been partially chocked or strangled by a partner.

Survivors may experience domestic violence up to 35 times before they ask or receive help. www.homeoffice.gov.uk/crime-victims/reducing-crime/domestic-violence
Types of abusive behaviour Making threats Intimidation Economic/financial abuse Using isolation
Emotional abuse
Taking a domineering role in the partnership
Using the children to abuse and control their partner Denial
Minimising Blaming Physical abuse Sexual abuse

Domestic violence is almost always part of an ongoing pattern of abuse behaviour, rarely a single event.

The victim and perpetrator are known to each other and are, or have been, in a relationship.

Domestic violence occurs in secret or semi-secret ‘behind closed doors.’

Historically society has treated domestic violence less seriously than stranger violence.

If attacked by a stranger the home is a place of safety; in domestic violence, it is the least safe place to be.

Both statutory and using the inherent jurisdiction of the High Court. No unified system
For example:
Magistrates Court – applicant had to establish violence or the threat of it before order made.
County Court – order could be made to prevent molestation.
Law Commission Report (1992) Domestic Violence and Occupation of the Family Home, (LCR 207)
Law Commission recommended that position in County Court should be adopted as it meant there was no need to wait until violent incident before court intervened.

See Bessant “Public authorities in England and Wales must act in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly courts, the police and the Crown Prosecution Service must take positive steps to protect life and prevent torture and inhuman and degrading treatment. Victims of domestic violence may enforce such rights and seek a remedy for their breach at the domestic level and through proceedings before the European Court of Human Rights when all domestic remedies have been exhausted. The provisions of the European Convention may thus be seen as fundamental in the fight against domestic violence.”

Obligation on the state to protect individuals from threats to their lives posed by third parties.
Consider the following cases:
Osman v United Kingdom (1990) 1 FLR 193
Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252

The state is required to take measures designed to ensure that individuals within the jurisdiction are not subjected to torture or inhuman or degrading treatment.

The right to a private life.
Consider the following cases:
Von Hannover v Germany (2005) 40 EHRR 1
Marper v UK [2008] ECHR 1581
Bevacqua and S v Bulgaria [2008] ECHR 498 (App. No 71127/01)

Prohibition on discrimination
Opuz v Turkey (2010) 50 EHRR 28
REMEMBER NEXT WEEK [WEEK 18] IS READING WEEK – THERE WILL BE NO LECTURE OR SEMINARS.

Please read the relevant chapter in your text book and the following articles:-
M. Aqueel (2015) ‘The effect of criminalising forced marriages in the United Kingdom: a step too far?’ Cov. LJ. 16
M. Idriss (2015) ‘Forced marriages – the need for criminalisation?’ Crim. L.R. 687
Please come to the seminar prepared to have an informed discussion on whether the recent changes to the law on forced marriage are workable.

Family Law Act 1996
Wider group of applicants who can use the legislation but must have had a sexual relationship and have lived together.
Note: DVCVA 2004 extends definition of those who can apply under the Act to include couples who have had an intimate relationship but not lived together.
Can be ex-spouses or cohabitants. Also includes same sex relationships
S. 62 ‘Associated person’
S. 62(2) ‘Relevant child’
If falling outside the categories in the Family Law Act 1996 can possibly use the Protection From Harassment Act 1997.
S.42 Non molestation order
Order protects associated person and relevant child.

Vaughan v Vaughan [1973] 3 All ER 449
W petitioned for divorce.
H had phoned her early in the morning and late at night, also at her workplace.
H admitted that he knew W was frightened of him and that being pestered in this manner would have an impact on her health.
Held: this behaviour amounted to molestation.
Johnson v Walton [1990] 1 FLR 350
M sent semi naked photographs of his former girlfriend to the newspapers.
Held: this could constitute molestation because the sending of the photos to the newspapers were intended to humiliate the woman.
Banks v Banks [1999] 1 FLR 726
W suffered from manic depressive disorder and unable to control her behaviour.
Held: it would be wrong to issue an order because she may well break it and would be in contempt of court through conduct that was beyond her control.

Enforcement of Orders under the FLA1996
Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2000] 2 FCR 599
Order can be made for a specific period or until further order.

Balances the harm that the applicant or relevant child is likely to suffer, because of the respondent’s conduct, if an order is not made, with the harm likely to be suffered by the respondent or relevant child if the order is made.
Two stages for the court to consider.
Firstly will the applicant and any relevant child suffer significant harm without an order?
Secondly if making an order will cause significant harm to the respondent and any relevant child where does the balance of harm lie?
Consider the following case:
B v B (Occupation Order) [1999] 2 FCR 251
H and W lived with his son from previous relationship and their baby daughter.
H was violent and W left with baby daughter and was placed in emergency council accommodation.
W applied for an occupation order.
Held: application refused as if granted son would have to move his school and lose all his friends etc.

(S.1 DVCVA 2004 introduces new S.42A of the Family Law Act 1996)
Breach of a non-molestation order without reasonable excuse now becomes a criminal offence with a maximum sentence of 5 years in prison.

Available nationally since March 2014 – designed to help victims avoid or leave relationships which might put them at risk of domestic violence. Two parts to the scheme.

Under the scheme an individual or a third party on behalf of the victim can ask police to check whether a new or existing partner has a violent past. If records show that an individual may be at risk of domestic violence from a partner, the police will consider disclosing the information. A disclosure can be made if it is legal, proportionate and necessary to do so.

Under this part of the scheme the individual will be contacted by the police or a partner agency and provided with information about their partner’s history of violence – disclosure can be made even if the victim has not asked to know. Again, the police can release information if it is lawful, necessary and proportionate to do so.

SS 24-30 of the Crime and Security Act 2010 piloted in three police force areas in 2011-12. Available nationally since March 2014.
These powers fill a gap in providing protection to victims by enabling the police and magistrates to put in place protection in the immediate aftermath of a domestic violence
incident. With DVPO’s, a perpetrator can be banned with immediate effect from returning
to a residence and from having contact with a victim for up to 28 days, allowing the victim time to consider their options and get the support they need. Before the scheme, there was a gap in protection, because police couldn’t charge the perpetrator for lack of evidence and so provide protection to a victim through bail conditions, and because the process of granting injunctions took time.
Once a DVPN has been issued the guidance envisages the police will automatically apply to a specialist domestic violence court or the magistrates court for a DVPO. The court will make a DVPO if satisfied on the balance of probabilities that the grounds, which mirror the grounds for the DVPN are met. The DVPO will last for at least 14 days but no more than 28.

Please read the relevant chapter in your text book and come prepared to discuss the following question.
Is domestic violence gender neutral?
According to Gilmore and Glennon (2012) “While there is evidence to show that men are at times the victims of domestic violence at the hands of their female partners, it remains the case that there is asymmetry in domestic violence with men more likely to be the perpetrator and women more likely to be the victim. Others take a different view and argue that intimate partner violence is just as likely to involve a female perpetrator and a male victim. In light of this some argue that the focus should be on family violence as opposed to constructing the problem primarily as one of violence against women. However studies continue to show that men are more likely than women to perpetrate violence againstan
intimate partner and that women’s violence to men does not equate in terms of frequency, severity, or in terms of its impact on the victim’s sense of safety and well-being.” (p.93)
Please also read: M. Idriss (2015) ‘Sentencing guidelines for HBV and honour killings’ J. Crim. L. 198
Is the term ‘honour based’ one that we should use?
Should it be an aggravating factor when considering sentencing if the person murdered is killed because of their sex?

OBJECTIVES:
Having successfully completed this unit you should be able to:
Consider policy issues arising from the substantive law.
Engage in critical and informed debate on the relationship between families and the state.

Divorce petition
Decree nisi
Decree absolute

Historical background to the current law.
Divorce before 1857
Needed an Act of Parliament to obtain a divorce. Only very rich could do so. Usually less than two petitions from a husband a year.
Matrimonial Causes Act 1857
Act permitted divorce by judicial process. .
Husband could petition for divorce on grounds of adultery.
Wife had to prove adultery and one of the following: incest, bigamy, cruelty or two years desertion, or alternatively rape.
Matrimonial Causes Act 1923
Wife in same position as husband – can petition on grounds of adultery alone.
Matrimonial Causes Act 1937
Extended grounds to include the other’s cruelty, desertion for three years or incurable insanity.
Divorce Reform Act 1969
All grounds for divorce abolished.
Need only one ground – that the marriage had irretrievably broken down.
But can only establish this by proof of one of five facts
Introduced protection for ‘innocent’ spouse who could be divorced against their will.
Matrimonial Causes Act 1973,
s.1(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
s.1(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –
that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.
that the parties to the marriage have lived apart for a continuous period of at least five years.

s.1(1)
Buffery v Buffery [1988] 2 FLR 365
Although it was clear to the court that the marriage had broken down they would not grant a divorce as there was no evidence of one of the five facts.

Cleary v Cleary [1974] 1 WLR 73
Held: sufficient once adultery has been established that the petitioner finds it intolerable to live with the respondent for whatever reason.
The test is subjective but requires an explanation as to why it is he or she finds it intolerable to live with the respondent.
Roper v Roper [1972] 1 WLR 1314
Held: Court accepted that once one act of adultery had taken place a wife who found it intolerable to live with her husband because he blew his nose too much.

Ash v Ash [1972] 1 All ER 498
“A violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live with a respondent similarly addicted…a flirtatious husband can reasonably be expected to live with a wife who is equally susceptible to the attractions of the opposite sex; and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with each other.”
O’Neill v O’Neill [1975] 1 WLR 1118 CA
Respondent lost his job and decided to renovate the house.
He had no building experience.
He took up all the floorboards and left the door off the toilet for 8 months.
He mixed cement in the living room.
Held: this was behaviour that the wife could not be expected to live with.
Hadjimilitis (Tsavliris) v Tsavliris (Divorce: Irretrievable Breakdown) [2003] FLR 81
H was a wealthy ship owner who was very controlling.
He humiliated his wife in public, denied her any money and would not have a house key so she had to let him in whatever time he came home.
Held: court found that no person should have to live with such behaviour.

Le Brocq v Le Brocq [1964] 1 WLR 1085
W and H had separate bedrooms but she continued to prepare the husband’s dinner.
Held: no desertion as not separate households.

Santos v Santos [1972] 2 All ER 246
Held: court would consider the parties attitude to the marriage.
Fuller v Fuller [1973] 1 WLR 730
Held: H and W were living apart when he shared a home with his wife and her new partner as their lodger.
Mouncer v Mouncer [1972] 1 WLR 321
Parties did not sleep together, but ate together and shared the cleaning.
Held: not living apart.

See Santos v Santos [1972] 2 All ER 246 above

Parker v Parker [1972] 1 All ER 410
W risked losing a pension if the divorce took place. H had to buy an annuity for her to redress the imbalance.

Reading
Relevant chapter in your text book and the following:-
Please also read C. Bessant (2015) ‘Protecting victims of domestic violence – have we got the balance right?’ J. Crim. L. 102
What are the advantages and disadvantages of the Domestic Violence Disclosure Scheme?

Objectives
Having successfully completed this unit you should:
Be able to critically evaluate the law in this area.
Be able to apply the law to problem situations.

White v White [2000] 2 FLR 981
“Fairness like beauty, lies in the eye of the beholder.”
Miller; McFarlane [2006] 2 FCR 213
“Fairness is an elusive concept. It is an instinctive response to a given set of facts.
Ultimately it is grounded in social and moral values. These values or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning.”

Charman v Charman [2007] EWCA Civ 503
Husband claimed his special contribution to the marriage should be recognised.

McCartney v Mills-McCartney [2008] 1 FCR 707

s.23(a) Periodical Payments Order (Maintenance)
Flemming v Flemming [2004] 1 FLR 667
Order giving W payments for 4 years.
She cohabited with new partner but they were not married.
Held: the W and her cohabitant had sufficient resources between them for their needs. W’s application refused.
s.25(1) “It shall be the duty of the court in deciding whether to exercise its powers…and if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.”
Sutter v Sutter and another [1987] 2 FLR 232
The welfare of the child is the first consideration however this does not mean it is the overriding one.
Miller v Miller [2006] 2 AC 618
Short marriage – under three years and no children.
Husband earnt £1 million per year and wife was paid £85,000.
Court held that in a short marriage involving a childless couple the decision on what is a fair division of the assets cannot be based on the hopes and expectations of the marriage at its beginning. Instead the focus should be on the standard of living during the marriage. The award should enable the wife to make a gentle transition to independence.
s.25(2) “As regards the exercise of the powers of the court in relation to party to the marriage, the court shall in particular have regard to the following matters:-“
“Income, earning capacity, property and other financialresources.”
“Financial needs, obligations and responsibilities which each of the parties tothe marriage has or is likely to have in the foreseeable future.”
(c ) “The standard of living enjoyed by the family before the breakdown of the marriage.”
“The age of each party and the duration of the marriage.”
“Any physical or mental disability of either of the parties to themarriage.”
In practice these needs are usually addressed under (a) and (b).
“Contribution which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for thefamily.”
“The conduct of each of the parties,if that conduct is such that it would in the opinionof the court be inequitable to disregardit.”
“The value to each of the parties to the marriage of any benefit which by reason of the dissolution or annulment of the marriage, that party will lose the chance ofacquiring.”
S.25(a)(i) introduced by the Matrimonial and Family Proceedings Act 1984.
The court is under a duty to consider whether it is appropriate to make orders that will terminate the parties financial obligations towards each other as soon after the decree as the court thinks is just and reasonable.

Reading
Bainham A. (2001) “Men and Women Behaving Badly: Is Fault Dead in English Family Law?”
Oxford Journal of Legal Studies, Volume 21, Issue 2, June 2001, p.219.
Hasson E. (2006) “Wedded to ‘fault’: the legal regulation of divorce and relationship breakdown” Legal Studies, Vol 26, No 2, June 2006, p.267.
Wendy got on well with her husband Hugh, until he started acting differently three years ago, coming home in the early hours of the morning, sleeping in the spare room and receiving private telephone calls. Wendy was convinced that he was having an affair, but he denied this. She said that she did not mind about the affair itself but she couldn’t bear his changed behaviour and his dishonesty. So she gave him an ultimatum to the effect that if
he didn’t change his attitude she would move out. He said that there was nothing to change, that when he came home late he slept in the spare room to avoid waking her up and that
his telephone calls were none of her business. So Wendy went to stay with her sister down the road. Hugh and Wendy agreed that while Wendy was at her sister’s they would maintain a domestic arrangement which they stuck to. Every Sunday Wendy came back to the house, did Hugh’s cleaning and laundry and cooked him meals for the week which she put in the freezer. Every Tuesday and Thursday Wendy came round and had her evening
meal with Hugh. A year ago Wendy’s sister became ill and Hugh and Wendy agreed that irrespective of their marital problems, Wendy had to stay with her sister until she got better. Now Wendy’s sister is better and Wendy and Hugh have decided to cut all ties with each other.
Advise Wendy whether she can divorce Hugh, and advise Hugh whether he can divorce Wendy.

Objectives:
Having successfully completed this unit:
Students will be aware of the developments in this area of law and the potential impact on the law relating to divorce.

Statutes set out two things:
The financial orders that can be made.
The considerations that the court must have in mind when making the orders. First is the welfare of any minor children.
Then s.25 is taken into account.

Law Commission consultation:
“The law relating to financial orders is inherently unclear. It is not possible to discern from the statute what the law requires, although the courts and family lawyers administer the law with confidence. In our Supplementary Consultation Paper we asked questions designed to elicit the views of the consultees as to whether this was an acceptable situation and whether the law should be changed so as to include, in statute, an explicit statement of the objective to be achieved in meeting financial needs.”
“…it remains impossible for a marital property agreement to oust the court’s jurisdiction to make financial orders…the principle set out above indicates that the court will then start
from the terms of the agreement. Only if it would be unfair to hold the parties to it will the court instead make an order in different terms.”
Law Commission concluded by stating that guidance should cover the following areas:-
What are needs?
At what level should needs be met?
The duration of provision for needs and the transition to independence.

“Where any agreements related to a future and hypothetical separation, the courts came to the conclusion that they were void for the public policy reason that such contracts might encourage separation or divorce – and any provision purporting to oust the court’s
jurisdiction to make orders for financial provision on divorce was also void.”
Law Commission recommends “We recommend that for the future an agreement made between spouses, before or after marriage or civil partnership, shall not be regarded as void, or contrary to public policy, by virtue of the fact that it provides for the financial
consequences of a future separation, divorce or dissolution.”

F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45
Held: pre-nuptial agreement must be of very limited significance.

Radmacher v Granatino [2010] UKSC 42
“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.”
V v V [2011] EWHC 3230 (Fam) [2012] 1 FLR 1315
“The new respect to be given to individual autonomy means that the fact of an agreement can alter what is a fair result and so found a different award to the one that would otherwise have been made.”

Reading

Jenkins C. (2011) “Are pre and post marital agreements finally worth the paper they are written on?” PCB 30
Sharland v Sharland [2015] UKSC 60
Discussion on the exercise of judicial discretion. Each student should read at least two judgments on the application of section 25 of the Matrimonial Causes Act 1973 and be prepared to discuss them in the seminar.

EASTER/SPRING VACATION

Lecture 21 (Week 23): Nuptial Agreements 2
Objectives:
Having successfully completed this unit:
Reflect on nuptial agreements and what they may mean for furture directions in family law

Please read the Law Commission Report ‘Matrimonial Property, Needs and Agreements’ published in February 2014 and come to the seminar prepared to discuss the issues raised.

Revision session.

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