What is Child and Family Law

Black’s Law dictionary - The regime that orders human activities and relations through
systematic application of the force of politically organized society or through social pressure
backed force

The Importance of Families

Huang v Secretary of State for the Home Department (2007)

• In Huang v Secretary of State for the Home Department the House of Lords emphasized the
importance of families to individuals [2007] UKHL 11, para 18:

• “Human beings are social animals. They depend on others. Their family, or extended family, is
the group on which many people most heavily depend, socially, emotionally and often
financially. There comes a point at which, for some, prolonged and unavoidable separation from
this group seriously inhibits their ability to live full and fulfilling lives.”

The Family Test

• ‘Family test’ for all new policies and legislation [Department for Work and Pensions (2014)].
Requires Government departments to assess the impact of proposed reforms on families
because it stated:

• “Strong and stable families, in all their forms, play an important role in our society. Families
have a major impact on the life chances of individuals and strong family relationships are
recognised as an important component of individual, community and national wellbeing.”
• However, the Family and Childcare Trust (2016) found that in the first year only Government
departments were able to identify an occasion where the policy had had any impact.]

Defining ‘family’ - a difficult question

• David Archard suggests a family is ‘a multigenerational group, normally stably co-habiting,
whose adults take primary custodial responsibility for the dependent children’. (Archard, David.
The Family: A Liberal Defence. (London: Palgrave Macmillan, 2010), p.10-11).

But his requirement that a family must contain children is controversial. Do you cease to be a
member of a family once you leave home?
• Divorce, single parents, guardians, homosexuality, are pets part of your family, now robots?
• What is the link? Blood, affinity, guardianship, care?

Leading case in defining a family: Fitzpatrick v Sterling Housing Association Ltd [2000] 1
FCR 21
Facts:
• The case concerned a Mr Thompson and a Mr Fitzpatrick, who had lived together in a flat for
18 years until Mr Thompson died. Under the Rent Act 1977 Mr Fitzpatrick could succeed to the
tenancy of the flat, which had been in Mr Thompson’s name alone, if he was a member of Mr
Thompson’s family. So, the core issue was whether a gay or lesbian couple could be a family.

Decision
• By a three to two majority the then House of Lords held that Mr Thompson and Mr Fitzpatrick
were a family. The majority accepted that the meaning of family is not restricted to people linked
by marriage or blood. Lord Slynn suggested that the hallmarks of family life were ‘that there
should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, or
commitment and support’. He later added that the relationship must not be ‘a transient
superficial relationship’.

Impact of the Fitzpatrick case

• The Government’s ‘family test’, has a very broad understanding of families as including:
• couple relationships (including same-sex couples) including marriage, civil partnerships,
• co-habitation and those living apart, together;
• relationships in lone parent families, including relationships between the parent and children
with a non-resident parent, and with extended family;
• parent and step-parent to child relationships;
• relationships with foster children, and adopted children;
• sibling relationships;
• children’s relationship with their grandparents;
• kinship carers; and
• extended families, particularly where they are playing a role in raising children or caring for
older or disabled family members.

Conceptual approaches to children’s rights

• Childhood is an essential part of life that needs to be respected and nurtured in the morally
correct manner.
• Some argue childhood is a social construction.
• To some we are living in times when childhood is disappearing, with children becoming
exposed to adult life at an earlier and earlier stage. In particular, there are concerns about the
sexualisation and commercialisation of children and exposure to technology. Hence the line
between adulthood and childhood is blurring.
• Children are vulnerable minors needing protection and/or restraint but what about the
vulnerability of adults? What happens if they need support and protection in helping them raise
children?
• How much autonomy and citizenship do children have?
Parental responsibility in the UK – 3 intertwining positions

Parental rights can be child-centred i.e to look after child but also parent-centred – to
determine the religion of the child. E.g duty to feed the child but what kind of food is parent-
centred.

Some areas of these rights are regulated by state e.g not to starve the child but others have no
role of the state e.g what kind of clothes child should wear, having small sips of alcohol

Is the right to feed the child-parent- or child-centred? Such a right is essential for the health of
the child and so appears to be child-centred. But what kind of food is provided (for example,
whether the parents choose to feed their children only vegetarian food) appears to be a parent-
centred right.

Key statistics
• People are now marrying at an older age; the rate of marriage is dropping; and there are
projections that fewer and fewer people will marry. In 2015, 66.8% of families in the United
Kingdom involved a married couple or civil partners.
• Increasingly people are co-habiting outside of marriage. In 2015 in the United Kingdom 17.1%
of households involve co-habiting couples.
• Living alone is an increasingly popular option with 7.7 million people living on their own, 28.5%
of all households.
• In 1971, 91.6% of births in England and Wales were within marriage or civil partnership; by
2015 this had decreased to 52.3%.
• An increasing proportion of children live in lone-parent house-holds. In 2015, 24.5% of
households with dependent children were headed by a single parent.
• Same-sex relationships are increasingly acceptable. In 2015 it was estimated there were
61,000 families consisting of a same-sex couples who were married or in civil partnerships and
a further 90,000 same-sex co-habiting couples.
• In the 1970s and 1980s there were sharp increases in the rate of divorce. In recent years the
divorce rate appears to have levelled off, and even slightly declined. However, current estimates
are that 42% of marriages end in divorce.

Rise of Individualism?
Anthony Giddens suggests that there has been a fundamental shift in the nature of intimate
relationships. He suggests that today the typical relationship is “one entered into for its own
sake, for what can be derived by each person from a sustained association with another;
and which is continued only in so far as it is thought by both parties to deliver enough
satisfaction for each individual to stay within it.” Giddens, Anthony., The Transformation of
Intimacy (1992), p.58.
Methodological approaches to family law

1) Formalistic basis
• 1. Marriage/intercourse between a man and a woman
- Influenced by religious tradition and scripture; historical custom and tradition; the traditional
family nucleus

2) Functionalist approach/goal oriented

• 1. Protective – to guard members of a family from physical,
emotional or economic harm.
• 2. Adjustive – to help families which have broken down to
adjust to new lives apart.
• 3. Supportive – to encourage and support family life.
• But how do you define the above goals? How many goals should there be?

3) Subjective-based
• This is my relationship and it doesn’t matter whether or not it conforms to a certain set of
values, norms or traditions

4) Rights-oriented
• Traditionally it has been thought appropriate to divide life into public and private arenas. Family
law has been seen as the protector of private life. Notably, the European Convention on Human
Rights upholds ‘a right to respect for private and family life’ – art 8.

5) State-regulated but which model?

• Authoritarian
• Enforcement of responsibilities in certain areas
• Manipulation of values
• Support model only, not influencer

What standards are we using to decide what is a family and what is a

‘good’ family?
Culture?
• One of the few occasions on which the English courts have addressed these issues was R v
Derriviere,(1969) 53 Cr App R 637 where a father gave his son, aged under 13, heavy corporal
punish-ment because he had stayed out late at night. The father argued that the level of
punishment was normal by the standards of his culture.

• However, the Court of Appeal held: ‘Once in this country, this country’s laws must apply; and
there can be no doubt that, according to the law of this country, the chastisement given to this
boy was excessive and the assault complained of was proved.’ However, in sentencing the
father, the fact that he was unaware of the acceptable standards of corporal punishment was
taken into account.
Religion
A v T (Ancillary Relief: Cultural Factors)[2004] 1 FLR 977 involved a divorce between an
Iranian couple, who had recently moved to England. On their divorce the husband was refusing
to grant his wife a talaq divorce, which meant that even though the couple might be divorced in
the eyes of the law, they remained married in the eyes of their religion.

Baron J ordered that if the husband did not provide the wife with the talaq divorce he wasto pay
her an extra £25,000. He did this having heard evidence that this was the approach that Sharia
courts would have taken, arguing that where the spouses have only a ‘secondary attachment’ to
English jurisdiction and culture, then due weight could be given to factors relevant to their
‘primary culture’

Britain’s attitude towards religion

In R (Johns and Johns) v Derby City Council (Equality and Human Rights Commission
Intervening) [2011] EWHC 375 (Admin) a barrister, Mr Diamond, representing a couple who
claimed their religious views on homosexuality had meant they were not approved as foster
carers, argued that ‘something is very wrong with the legal, moral and ethical compass of our
country’ and that ‘gay rights advocates construe religious protection down to vanishing point’.
He submitted that the state ‘should not use its coercive powers to delegitimize Christian belief.’

• Munby J rejected claims that Christians were treated unequally before the law. He went on to
explain that Britain was ‘a democratic and pluralistic society, in a secular state not a theocracy’,
adding:

“Although historically this country is part of the Christian west, and although it has an
established church which is Christian, there have been enormous changes in the social and
religious life of our country over the last century. Our society is now pluralistic and largely
secular. But one aspect of its pluralism is that we also now live in a multi-cultural community of
many faiths. One of the paradoxes of our lives is that we live in a society which has at one and
the same time become both increasingly secular but also increasingly diverse in religious
affiliation . . . Religion – whatever the particular believer’s faith – is no doubt something to be
encouraged but it is not the business of government or of the secular courts, though the
courts will, of course, pay every respect and give great weight to the individual’s religious
principles” (para 38).

Religious marriages
It could be argued that the case law is discriminating against ethnic minorities because their
ceremonies do not ‘bear the hallmarks of a marriage’ as understood in a Christian context.
Indeed, an Islamic ceremony in a private flat and a Hindu ceremony in a restaurant have
been held to be non-marriages, being too far distant from what one would expect from a
marriage ceremony. Care must be taken in these judgements not to impose cultural norms
about what marriages are meant to look like.

MA v JA and the Attorney General [2012] EWHC 2219 (Fam)

The petitioner and respondent underwent a ceremony of marriage in a mosque in 2002. The
ceremony was conducted by an Imam. The petitioner and respondent intended that the
ceremony would create a valid marriage under English law. The Imam believed he was 'only'
performing the religious ceremony. It was agreed that the ceremony did not comply with the
requirements of the Marriage Act 1949. The petitioner and respondent sought a declaration that
the marriage was a valid marriage at its inception. The Attorney General intervened in the case
and opposed the declaration citing public policy reasons which required the rules governing the
formulation of marriage should be strictly observed.

Decision
Moylan J summarised the issues as: whether a ceremony conducted in England and Wales
which does not comply with the requirements of the Marriage Act 1989 either:
(a) results in a marriage which is entitled to legal recognition as a valid marriage or results in a
marriage which is a void marriage;

(b) has no effect under English law.

Moylan J surveyed fully the statutory history and relevant case law. He concluded that:

• (1) The presumption of marriage did not apply in this case as the evidence clearly established
that the requirements of the Marriage Act 1949 were not fulfilled and the presumption could not
be relied upon to establish that they were.

(2) Notwithstanding the above the marriage ceremony was in its character 'of the kind'
contemplated by the Marriage Act 1949. It was conducted in an authorised building in the
presence of an authorised person. A marriage was therefore created.

(3) The marriage was not void as the parties did not knowingly and wilfully breach the
requirements of the Marriage Act 1949.

• Moylan J therefore granted the declaration that the marriage was valid in English law.

Concluding points
• Think laterally about family law – it is a legal discipline that requires holistic thinking using
law, ethics, culture, religion, sociology and even biology

• Be prepared to adapt to the changing developments within family law

• Consider how judges use different methodological approaches and reasoning to decide family
law issues

LECTURE 2: FORMATION OF MARRIAGE AND CIVIL PARTNERSHIPS

Delays
Adversarial nature
Lack of attention to specific religious and cultural issues

Reduction In Legal Aid Available to Families in Family Court

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has drastically
restricted access to legal aid in family law cases. There is no legal aid in private cases (e.g.
disputes between parents over children and financial disputes) with two exceptions:
(i) Applications for protective orders in relation to domestic violence, such as occupation
orders, non-molestation orders or injunctions.
(ii) Cases where the applicant falls into one of the exceptional categories

The exceptional categories

Those seeking legal aid in family cases will need to show that they fall within an exceptional
category to be entitled to legal aid. There are five of them:

1. the applicant is the victim of domestic violence; (whether psychological, physical,

sexual, financial or emotional) – sched 1, para 12.
2. the case involves a forced marriage injunction;
3. the case involves allegations of child abuse;
4. a child who is party to proceedings; or
5. there are exceptional circumstances.

Soulutions May Include:

Mediation
ADR

Family Justice Review 2011

1. that the welfare of the child remains the paramount consideration in any proceedings
determining the upbringing of the child;
2. that the family is nearly always the best place for bringing up children, except where
there is a risk of significant harm;
3. that in private law, specifically, problems should be resolved out of court, and the courts
will only become involved where it is really necessary;
4. where court is the right option, that children deserve a family court in which their needs
come first;
5. that both in public and private law cases children must be given an opportunity to
have their voices heard in the decisions that affect them;
6. that the process must protect vulnerable children, and their families;
 7. that this is a task not limited in responsibility to one organisation or another, but some-
thing we must all work on together; and
8. that judicial independence must be upheld as the system is made more coherent and
man-aged more effectively.
9. One of the most significant is that s 17(3) of the Crime and Courts Act 2013 creates a
single family court.

MARRIAGE VS CIVIL PARTNERSHIP

Marriage aims to give mutual personal fulfillment, the expansion of each other’s family and
stability of values in society.

The most commonly cited definition of marriage in the law is that in Hyde v Hyde and
Woodhouse ‘the voluntary union for life of one man and one woman to the exclusion of all
others’. (1866) LR 1 PD 130 at p. 133 , per Lord Penzance.

But how do we define marriage today?

Marriage, Contract or Status?

It is both. Means that partners do not have an absolute right to create terms but must also
conform to the laws of the land as per the status of marriage also. Not free to determine all legal
consequences of the marriage for yourself.

Baroness Hale has explained:

“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. Radmacher v
Granatino[2010] UKSC 42, para 132.

Radmacher v Granatino [2010] UKSC 42 - Important Case on Prenups (Prenuptual

agreements)
Facts: The husband is French and the wife is German. Prior to their marriage in 1998 they
signed a prenuptial agreement in Germany (where it was valid), which provided that in the event
of dissolution of the marriage neither party was to make a monetary claim against the other in
any financial remedy proceedings. The agreement had been entered into at the instigation of
the wife, who wanted to protect the wealth that she had already received from her family, along
with a further portion of her family’s wealth that she would only receive if she entered into the
agreement.
The parties lived together for the majority of their marriage in London and have two children.
They separated in 2006 and divorce proceedings were subsequently issued. The husband
applied to the court for a financial settlement and the High Court awarded him £5.6 million.

The wife appealed and the Court of Appeal allowed her appeal, broadly on the grounds that the
High Court had not given sufficient weight to the existence of the agreement, though still
providing the husband with some housing and other funds to reflect the fact that he and the wife
were sharing residence of the children. The husband appealed to the Supreme Court.

Decision
The Supreme Court dismissed the appeal, by a majority of eight to one, with only Lady Hale
dissenting. The President, Lord Phillips, giving the substantive judgment of the majority (i.e. of
himself and Lords Hope, Rodger, Walker, Brown, Collins and Kerr) set out the following
proposition:
“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.”

Applying that proposition, or principle, to the facts of the case Lord Phillips found that there were
no circumstances which made it unfair to hold the husband to the agreement. He was extremely
able and, with the help of the funds for the children, was capable of meeting his needs. There
was no reason why he should receive compensation from the wife and he should not be entitled
to a share of the wife’s wealth that she had received from her family, as he had agreed when he
married her that he should have no such entitlement. Accordingly, his appeal was dismissed.

Impact of Radmacher: Prenuptial agreements

Radmacher v Granatino [2010] paved the way for pre-nuptial contracts, suggesting a greater
willingness to allow people to decide for themselves the legal consequences of their
relationship.

But then does marriage lose its meaning? Shouldn’t marriage be a personal journey of mutual
trust, affection and discovery? IMO no, marriage is about unity not enrichment after the fact.

What are the requirements for a Valid Marriage?

The presumption of marriage

If a man and a woman live together, believe themselves to be married, and present themselves
as married, the law generally presumes that they are legally married. Where the presumption
applies, 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 there being clear evidence.
Presumption of Marriage Case LAw:

A v H (2009):
H was British, W was Dutch.
Went through Muslim marriage ceremony.
H did not believe it was a valid marriage in English law.
Year and a half of cohabitation.
Held to be a non-marriage
(Case may have sat on the fact that H did not believe it was a valid marriage ceremony)

Pazpena de Vire (2001) 1 FLR 460:

● Parties in Zurich. Went to a notary to authorize a nominee to celebrate proxy marriage in
Uruguay (!)
● Lived together for 35 years, children etc.
● W sought divorce. H denied marriage existed.
● HELD: valid marriage – strong presumption

WHAT IS A CIVIL PARTNERSHIP?

R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC
32,
Civil partnerships were introduced by the Civil Partnership Act 2004 (‘the CPA’) to offer same-
sex couples an alternative to marriage. Section 1(1) defined a civil partnership as a ‘relationship
between two people of the same sex’. S.3(1) further specifically excluded different sex couples
from entering into a civil partnership.

Some years later, the Marriage (Same Sex Couples) Act 2013 (the ‘MSSCA’) was enacted
and marriage was extended to same sex couples, no alteration was made to the CPA in
response to this change. The effect was that same sex couples could marry or enter Civil
partnerships, but different sex couples (i.e. a woman and a man) only had the option to marry.

In R (Steinfeld and Keidan) v Secretary of State for International Development [2018]

UKSC 32, the appellants (Rebecca Steinfeld and Charles Keidan) were a different sex couple in
a long term relationship, who also had also children together. They had a strong conscientious
objection to marriage on the basis of its historical patriarchal connotations.

Steinfeld and Keidan’s argument

The appellants argued that s.1 and s.3 of the CPA were incompatible with Article 14 of the
European Convention on Human Rights (‘ECHR’), their right to freedom from discrimination,
read together with Article 8 of the ECHR, the right to respect for private life. They sought a
declaration of incompatibility under s.4 of the Human Rights Act 1998 (the ‘HRA’), a
mechanism under which the court may declare that in this case the legislation was not
compatible with ECHR rights and therefore press the government to rectify the legislation.

The High Court

The appellants’ judicial review was dismissed by Andrews J in the High Court. She accepted the
respondent’s argument that Article 8 was not engaged, as the appellant’s personal interest was
not “close to the core of the right to family [and private] life” which Article 8 sought to protect.

Andrews J further stated that even if there was an interference with the appellants’ Article 8
rights, the Government’s argument that a period of consultation and data gathering was need in
order to assess the impact of the MSSCA on civil partnerships, and to decide what the future of
the institution would be, was a “sufficient objective justification for maintaining the disparity”.

Court of Appeal
The Court of Appeal disagreed that there had been no interference with the appellant’s rights
under Article 8 but the appeal was nevertheless dismissed on the grounds that the interference
was justified. The majority of the bench found that the policy considerations of the Government
consultation process made the interference proportionate.

Arden LJ, dissenting, found that the interference was not proportionate, but that the interference
pursued a legitimate aim, as the Government needed “some time to make its choice”.

Supreme Court
The Supreme Court focused on the question of whether there was a legitimate aim. The
Government no longer sought to claim that Article 8 was not engaged, a decision which was
approved by the Court, who clarified that case law, in particular that of Valliniantos v Greece
(2013) 59 EHRR 12, made it clear that “no detrimental effect need[ed to] be established” for an
interference to be found.

The Supreme Court then rejected the argument that the Government had a wide margin of
appreciation with regards to such an interference, as, adopting the approach taken in In re G
(Adoption: Unmarried Couple) [2009] 1 AC 173, margin of appreciation had no application in
a national court. The court must confront the interference and decide whether it is justified. The
Supreme Court noted that governments could only discriminate on the basis of sexual
orientation in very limited circumstances.
In addition, the Supreme Court found that, for such discrimination to be justified on the basis
that it pursued a legitimate aim, there must be an “intrinsic link” between the discrimination and
that aim. In this case, the interference was not intrinsically linked to an aim or policy, but simply
was due to the lack of any decision over several years on how to cure the inequality created by
the 2013 legislation and the Government’s claim that it needed time to assemble sufficient
information to allow a confident decision to be made about the future of civil partnerships. The
“intrinsic link” simply was not there and therefore the interference could not be justified because
the aim pursued was not legitimate. Further, there was no fair balance between the rights of the
appellants and the interests of the community (if any) in denying civil partnerships to different
sex couples.

Therefore…
By a unanimous vote, the five judges of the Supreme Court, the highest court in the United
Kingdom, ruled that the Government’s refusal to allow opposite sex couples to have civil
partnerships ‘incompatible’ with human rights law.

Impact of case
Throughout those proceedings, the government recognised that:
a) there was a difference in treatment between same-sex and different-sex couples on this
point,
b) the relevant rights were engaged,
c) the discrimination interfered with those rights, and
d) it was unjustifiable as a continuing position.

Civil partnerships extended to heterosexual couples

On 2nd October 2018, then Prime Minister Theresa May fairly swiftly announced the arguably
obvious response that civil partnerships would be extended to heterosexual couples. The Civil
Partnerships, Marriages and Deaths (Registration Etc.) Act 2019, provided such extension
(amongst other things), receiving Royal Assent on 26 March 2019. The associated secondary
legislation (Civil Partnership (Opposite-sex Couples) Regulations 2019) was read and
approved in the House of Lords on 5th November 2019.
The result is that different-sex couples in England and Wales will be able to give notice from 2nd
December 2019 and register civil partnerships from New Year’s Eve 2019.

But another inequality created...

But…Interestingly, a new inequality has been created. Through the Marriage (Same-Sex
Couples) Act 2013, same-sex couples are able to convert a civil partnership into a marriage.
There is nothing equivalent for different-sex couples.
This means that heterosexual couples who enter into a civil partnership and then later decide to
convert their civil partnership into a marriage cannot do so.
Response from government so far
Opposite-sex couples will have the right to marry at the time they enter into a civil partnership.
Does that make it equal
The government’s justification would surely hold weight if the conversion under the Marriage
(Same-Sex Couples) Act 2013 was time-limited to be available only to couples whose same-sex
civil partnership preceded the introduction of their right to marry. It does not. It is a continuing
right.

As such, no matter the historic reasoning, this distinction will simply create a new discrimination,
again based purely on whether a couple are same-sex or opposite-sex. The former can convert
a civil partnership into a marriage, the latter cannot.

Who can get married?

All couples can get married or form a civil partnership in the UK if they are:
● 16 or over
● free to marry (ie not already married or in a civil partnership)
● not closely related
● capable of understanding what marriage means and of consenting to a marriage
● Young people aged between 16 and 17 need parental consent in order to get married in
England and Wales. Both parents with parental responsibility must give consent.
● See: Marriage Act 1949, s1-4

Who can't get married?

Anyone under the age of 16 can't legally get married in the UK.
Some relatives aren't allowed to marry and any attempt to marry will make the marriage
automatically void. If there is a degree of affinity or they are blood relatives, they will not be
allowed to marry. A person cannot marry any of the following relatives:
● a child, including an adopted child
● a parent, including an adoptive parent
● a brother or sister, including a half-brother or half-sister
● a parent's brother or sister, including a half-brother or half-sister
● a grandparent
● a grandchild
● a brother's or sister's, including half-brother's or half-sister's, child
● Adopted children may not marry their genetic parents or adoptive parents, but they are
allowed to marry the rest of their adoptive family, including adoptive brothers or sisters.
● See: Matrimonial Causes act 1973, section 11 and Marriage Act 1949, s1

What is the position for same-sex couples?

Same-sex couples can now legally marry in England, Wales and Scotland, but not in Northern
Ireland. If a same-sex couples marry in England and Wales, they will be treated as civil partners
in Northern Ireland. Same-sex couples who marry abroad under foreign law are recognised as
being married in England and Wales.

Same-sex couples can either opt for same-sex marriage or civil partnerships.
If a same-sex couple have previously formed a civil partnership (ie before same-sex marriage
was legalised in 2014), in England, Wales or Scotland they can convert their civil partnership
into a recognised marriage.
Marriage (Same Sex Couples) Act 2013, s1

4 principles:
● No religious organization or minister can be compelled to carry out same-sex marriages.
● Religions who do want to have to opt-in.
● Equality Act 2010 amended so that not unlawful discrimination for religion or minister to
refuse SSM.
● Church of England could only offer SSM after a change in the law and in civil law.

Void vs. Voidable Marriage

Concluding points:
● The concept of marriage has undergone a significant change in British society
● It indicates on a relationship between two people but not necessarily a man or woman
● Do these changes reflect a change in religious and cultural values in British society?
● What impact do these changes have on the concept of family in the UK?

Mandatory Reading
Herring., Family Law (2021) – chapter 2

WEEK 3 - NULLITY AND DIVORCE

There are two ways to bring an end to a marriage – annulment or divorce. While a divorce
legally ends a marriage, an annulment declares the marriage null and void, as if it never existed.
The end result is the same for both options – the parties are each free to marry again.

It never is a question of either/or – do I make an application for my marriage to be annulled or

do I ask for a divorce?

2 categories within nullity: void and voidable

A void marriage is one that is invalid from the very beginning. As void marriages are
considered unlawful in themselves, they do not need any formalities to be terminated though a
decree can be obtained to confirm this fact.
A voidable marriage is one that is flawed in its validity but continues to exist. Voidable
marriages will be invalid only after one party applies to court to have the marriage declared void.

Void marriage
Matrimonial Causes act 1973, section 11
(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is
to say where:
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the formation of
marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) 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.

Prohibited Degrees
Consanguinity (i.e. by blood):
Grandparent - grandchild
Parent – child
Brother
Sister
Uncle/aunt
Nephew/niece
All including relations of the half-blood.
(however cousins can marry under English law)

Affinity (i.e. marriage):

● Step-child (unless over 21 and never treated as child of the family)
● (Son/daughter-in-law and mother/father-in-law - no longer applies following B & L v
UK (2005))
● UK law prohibited marriage between a father-in-law and his daughter-in-law unless both
over age of 21 and their former spouses had died.

The philosophy behind prohibited degrees of relationship

● public policy
● genetic disorders
● sanctity of family
● moral instinct
● Note: children born from void marriages are illegitimate
Age & Formalities
● The second requirement is that if either party is between the age of 16 and 18 then it is
necessary to have the written consent of each parent with parental responsibility.
Otherwise no.

● Failure to observe formalities: Only void if parties knowingly and wilfully marry in breach
of formalities – ss.25 and 49 Marriage Act 1949

Grounds for voidable marriage – s12 of MCA 1973

(a) that the marriage has not been consummated owing to the incapacity of either party to
consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to
consummate it;
(c) that either party to the marriage did not validly consent to it, whether in consequence of
duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was
suffering (whether continuously or intermittently) 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;
(e) that at the time of the marriage the respondent was suffering from venereal disease in a
communicable form;
(f) that at the time of the marriage the respondent was pregnant by some person other than the
petitioner;
(g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has,
after the time of the marriage, been issued to either party to the marriage;
(h) that the respondent is a person whose gender at the time of the marriage had become the
acquired gender under the Gender Recognition Act 2004.

Impact of Hirani v Hirani

In the case of Hirani v Hirani (1982) the court accepted that social pressure could overbear the
consent. The woman was threatened with ostracism by her community and her family if she did
not go through with the marriage, and the fear of complete social isolation was such that there
was no true consent. In P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661
Coderidge J followed Hirani and held that severe emotional pressure could be such as to mean
that there was no genuine consent to marry.

Unsoundness of mind
Note unsoundness of mind different to mental disorder. Unsoundness of mind relates to consent
at the start of marriage but mental disorder relates to the fact that they can understand nature of
marriage but “‘incapable of carrying out the ordinary duties and obligations of marriage.’”
Bennett v Bennett [1969] 1 All ER 539.
Drunkenness
● There is no clear authority on whether the marriage is voidable where one party was
drunk and so did not consent to the marriage. There are two views here.

● One is that drunkenness should be seen as analogous to being of unsound mind and so
would make a marriage voidable.

● Another view is that a party should not be able to rely on a lack of consent that arises
due to their own fault, and so voluntary intoxication should not render a marriage
voidable.

● In Sullivan v Sullivan (1818) 161 ER 728 it was suggested that the groom was so drunk
that he was unable to understand the nature of the ceremony and so the marriage was
voidable

3 years time limit for nullity

A decree of nullity will normally not succeed unless brought within three years of the date of the
marriage, the exception being a petition based on impotence. The policy behind this is clear:
parties need a degree of security in their marriage – if three years have passed, then to claim
that the marriage is fundamentally flawed seems unrealistic

Forced Marriage Act 2007

Forced Marriage (Civil Protection) Act 2007 The 2007 Act was passed to provide specific
protection to people at risk of being forced into a marriage.

Analysis of Divorce Rates in the UK

● Between 1961 and 1991 there was a fivefold rise in the divorce rate. Currently, however,
we are seeing a declining number of divorces.

● The divorce rate (the number of divorces per 1,000 marriages per year) rose from 4.7 in
1970 to 13.7 in 1999. However, since then it has fallen and by 2013 it was 9.8.

● For those married in 1968, 20% of marriages had ended in divorce by the fifteenth
wedding anniversary whereas for those married in 1998, almost a third of marriages
(32%) had ended by this time. It has been estimated that 39% of marriages entered into
today will end in divorce.

● However, couples who have been married for 30 years have only a 4% risk of divorce.

Why has divorced increased overall?

● Changing social attitudes
 ● Increased life expectancy
● Modern pressures on marriages
● Increased opportunities post-divorce

Marriage supported under English law

s 1 of the Family Law Act 1996:

The court and any person, in exercising functions under or in consequence of shall have regard
to the following general principles—
(a)that the institution of marriage is to be supported;
(b)that the parties to a marriage which may have broken down are to be encouraged to take all
practicable steps, whether by marriage counselling or otherwise, to save the marriage;

A look back at the old law on divorce…

Old law Matrimonial Causes Act 1973, sections 1 and 2(now replaced by the
Divorce, Dissolution and Separation Act 2020)

Under the old law of England and Wales, a divorce cannot be applied for until a couple
has been married for one year (think about why it is 1 year). There is one ground for
divorce, which is that the marriage has irretrievably broken down.

Under current divorce law, in order to prove that the marriage has irretrievably broken
down, the Petitioner needs to use one of five reasons.

N.B: Royal assent was granted to the Divorce, Dissolution and Separation Bill on 25
June 2020 heralding the hotly anticipated "no-fault divorce". The Act has been in force
since April 2022.
Buffery v Buffery [1988] 2 F.L.R. 365
● Married 20 years, 3 grown-up children
● Drifted apart, H was insensitive, ‘we have nothing in common’
● HELD: s.1 (1) and (2) are separate requirements. Did not satisfy s. 1 (2) (b). No
one’s fault. Petition dismissed.

1. Adultery
Section 1(2)(a) of the Matrimonial Causes Act 1973: ‘that the respondent has
committed adultery and the petitioner finds it intolerable to live with the respondent.’

Section 1(6) of the Matrimonial Causes Act 1973: ‘Only conduct between the
respondent and a person of the opposite sex may constitute adultery for the purposes of
this section.’

Important principles
Adultery is where the Respondent had sexual intercourse with someone of the opposite
sex. It does not apply to same-sex relations.
*A Petitioner cannot issue a Divorce Petition on the basis of their own adultery.

It is possible to name the third party involved as the Co-Respondent but this is usually
discouraged. Doing so can make the proceedings more acrimonious and drawn out.

It is not enough just to show that the respondent had committed adultery – it is also
necessary to demonstrate that the petitioner finds it intolerable to live with the
respondent.

Cleary v Cleary [1974] 1 All ER 498

The husband and wife reconciled for five–six weeks after the wife’s adultery. She stayed
in contact with the other man during that period. The husband petitioned for divorce and
said he could no longer live with the wife because there was no future in the marriage.
Lord Denning held that adultery and intolerability were two separate limbs. Although the
husband forgave the adultery he found it intolerable to live with the wife because of her
behaviour after the adultery. Therefore both limbs of the test were established.

Held: A divorce would be granted to the husband as he had established both her
adultery and the fact that he found it intolerable to live with her
Key principle: Adultery and intolerability are ‘independent’ (Denning MR) and ‘separate
and unrelated’ (Stamp LJ).

2. Unreasonable behaviour
Matrimonial Causes Act 1973, Section 1(2)(b): ‘that the respondent has behaved in
such a way that the petitioner cannot reasonably be expected to live with the
respondent.’
How do we define unreasonable behaviour? See the next two slides.

Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47

H was 56, W was 24, one child
W claimed H was critical, non-loving, and treated her as a ‘rather stupid child’
He criticised her dancing, her cooking, her friends – lots of petty things…
E.g He became very angry after she gave sherry to a photographer who visited the house when
he was not present.
She left him after a violent argument and was successful in her petition for divorce under s 1(2)
(b) of the MCA 1973.
Owens v Owens [2018] UKSC 41
● Married 1978; W filed petition on basis on H’s behaviour.
● At first instance: allegations ‘are at best flimsy’. He found that marriage had broken
down, but s 1(2)(b) not proved.
● The Court of Appeal and SC could find no reason to overturn the decision, although very
critical of current law and recommended reform.
(a possible problem with fault based divorce. One party wants to be divorced but the court must
satisfy the ground laid out in statute to oblige)

Other examples where divorce granted based on unreasonable behaviour

DIY enthusiast husband who removed the door of the toilet and took eight months to replace it
(O’Neill v O’Neill [1975] 3 All ER 289)
Husband who required his wife to tickle his feet for hours every evening leaving his wife with
uncontrollable movements in her hands. (Lines v Lines (1963)
Where the wife claimed that her husband’s submissive character and refusal to argue infuriated
her (Le Brocq v Le Brocq [1964] 3 All ER 464)

Conclusion
● Nullity in English family law is based on moral, religious and public policy considerations

● It deals with both the prohibited degrees of relationship, consent and formalities

● New law: Divorce, Dissolution and Separation Act 2020.

● Compare old and new law to appreciate the direction of law and whether or not it
protects the institution of marriage.

Herring., Family Law (2021) – chapters 3 and 4

Assignment (12:02 4/03/24

Married for 7 years

Age of the children

Income
Lecture 9 - The Nature of Domestic Violence

The meaning of domestic violence

Whilst there are definitions of domestic violence, it is important to appreciate there is an inherent
difficulty in defining it. Why?
What is the difference between assaulting someone on the street and at home?

For example, battery is a criminal offense involving unlawful physical contact, distinct from
assault which is the act of creating apprehension of such contact. If you are physically violent
towards someone in your own home, why can’t this be regarded as battery? If you incite fear in
family members in your own home, why can’t this be regarded as assault?

What makes something ‘domestic’? Is it just the fact that there are strangers on the street and
so-called close people at home?

Does boundary matter – just because you live with someone, does it give you more of a right or
allowance to have a physical dispute but on the street, such leniency cannot be granted?

Yemshaw v Hounslow London BC [2011] UKSC 3

Facts: Ms Yemshaw was married and had two children, aged six and eight months. She
was fearful of her husband. Although she accepted that he had never physically
assaulted her, she claimed that he had inflicted emotional, psychological and financial
abuse upon her. She applied to Hounslow Housing Authority for accommodation, after
being forced from the matrimonial home by the alleged abuse. The Housing Authority
refused to rehouse her.

Under the Housing Act 1996 it only had to rehouse someone if it was not reasonable for
them to live there. The statute stated that it would not be reasonable if the owner was a
victim of domestic violence. As she had not suffered violent touching, nor was there a
probability of that, they determined there was no domestic violence. She sought a
judicial review of their approach. The key question, therefore, centred on whether
domestic violence was limited to actions of physical violence.

Key issue of the case

On the basis of Danesh, the authority found that there was no probability of actual
violence from her husband and, hence, that she was not homeless as it was still
reasonable for her to occupy the matrimonial home. Her appeal to the county court (see
the Housing Act 1996, s 204) was dismissed, as was an appeal to the Court of Appeal.

In 2006, the Court of Appeal held, in Danesh v Kensington & Chelsea RLBC [2006]
EWCA Civ 1404; [2007] HLR 14 held that “violence” in s 177 of the 1996 Act, was
confined to physical assaults and did not include threats or other behaviour which put
someone in fear of physical violence.

Issues on appeal
The issue was a narrow one – did “violence” in s 177 mean (as the Court of Appeal had held in
Danesh and in Yemshaw) physical violence only or could it be satisfied by other actions short of
physical violence? (at [1]) To put it another way, was Danesh rightly decided? It was common
ground (at [36]) that, if the wider definition of “violence” was correct, then the case would have
to be remitted for reconsideration by the authority.

Supreme Court Judgement

The leading judgment was given by Baroness Hale, with whom Lords Hope and Walker agreed.
After tracing the history of modern homelessness law (starting with the Housing (Homeless
Persons) Act 1977 and going through to the 1996 Act), Lady Hale turned to consider the
dictionary definition of “violence”. She noted (at [19]) that, whilst physical violence was
undoubtedly an example of violence, it was not the only possible example. The Shorter Oxford
English Dictionary had, since the revised 3rd edn (1973) referred additionally to, e.g. fury and
other emotions which fell short of actual violence

Judgement continued
The early 1990s had seen a clear recognition that domestic violence could occur through mental
repression, as well as physical assault. The research of the interveners (the Secretary of State
and the Women’s Aid Federation), had found various international and domestic statements to
this effect, including UN documents, Home Affairs Committee reports and a Report from the
Law Commission (at [20]-[21]), all of which stressed that violence against women was not
limited to physical assault. This trend had continued through to the modern day (at [24]).

Judgement continued
Even if, at one time, a more limited understanding of the word “violence” had been correct, that
could no longer stand (at [28]). Parliament could not fix the meaning of “violence” for all time
and an updated (i.e. broader) meaning clearly served the wider statutory purpose: Fitzpatrick v
Sterling Housing Association [2001] 1 AC 27 applied (at [27]).
Housing lawyers should interpret “domestic violence” in the same way that family lawyers did,
by reference to the Practice Direction (Residence and Contact Orders: Domestic Violence) (No
2) [2009] 1 WLR 251 (at [28]). Thus, “domestic violence”:

“ . . . includes physical violence, threatening or intimidating behaviour and any other form of
abuse which, directly or indirectly, may give rise to the risk of harm . . . ”

N.B in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27, the Lords found that a gay
couple living together could be seen as a family for the purposes of housing law, and that a
family relationship did not require either a blood relationship (as between parent and child) or
marriage (at the time, neither marriage nor civil partnerships were available for same-sex
couples)

Judgement continued

Lord Roger agreed, and added a few words of his own. It would downplay the serious nature of
psychological harm to exclude it from the scope of “violence” in s 177 (at [46]).

Lord Brown had doubts about the approach of both Lady Hale and Lord Roger; the legislative
history did appear to suggest that Parliament had intended “violence” to be confined to physical
violence (at [48]-[53]). It was not until 2006, when the Secretary of State published a revised
code of guidance for local housing authorities, that he first expressly endorsed a wider approach
to the meaning of “violence” (at [55]).

Whilst Lord Brown accepted that there was a policy imperative in re-housing victims of physical
violence in order to protect their physical safety; it was, however, more difficult to identify a
similar urgency in cases that involved behaviour short of physical violence (at [57]). His Lordship
was not, however, minded to go as far as to dissent (at [60]).

Impact of the case

The expanded approach to “violence” has been with us in a variety of fields for some years
(see, e.g. R v Ireland [1998] AC 147, construing “bodily harm” in the Offences Against the
Person Act 1861 as covering psychological harm) and the approach taken in the judgment
simply brings housing law in line with other areas of law and policy, and one might be forgiven
for thinking that the media clamour after the decision was somewhat disproportionate (see
below links for information). The judgment is to be welcomed for bringing clarity to this corner of
the law whilst simultaneously advancing the policy aims of the 1996 Act.

Ultimately, the law now recognise that violence is not just physical and can be of various forms
including emotional and psychological. However, it also opens the floodgates for many claims of
domestic violence that may be less serious and could be resolved within the family unit itself.

Impact continued

Case of Yemshaw resulted in LASPO’s 2012 definition of domestic violence as above

It was not for the Supreme Court to rule on the ultimate outcome of the applicant’s case for
housing. It was remitted to the local authority to approach the question again with the benefit of
their Lordships’ judgment

Movement away from patriarchy...

Jonathan Herring cites the following:
The famous statement of the lawyer Hale describes the attitude of the law to domestic violence
in the past: he suggested that a husband could beat his wife with a stick no wider than his
finger. [1]

This was seen as an aspect of the husband’s right to control his household. The law did not
really recognise domestic violence until the feminist movement brought it to the attention of a
male-dominated media and legislature in the 1970s. It was either regarded as so rare as not
appropriate for legal intervention, or as simply part of the ‘rough and tumble of marital life’. It
was the refuge/shelter movement and the growth of feminist writings, in particular Scream
Quietly or the Neighbours Will Hear by Pizzey, which made domestic violence a public issue.[2]
[1] Cited in Doggett (1992); [2] Pizzey (1978).]
The Domestic Abuse Act 2021
The Act creates the first statutory definition of domestic abuse which includes not only
physical violence but that of emotional, coercive and controlling behaviour and
economic abuse. This can be limited to a single event or a series of actions. Children
will now be given statutory recognition as “victims” rather than “witnesses” if they see,
hear or experience abuse in the home.

The Act has extended the scope of coercive and controlling behaviour to incorporate
abuse post-separation. The offence, initially introduced by the Serious Crime Act 2015,
has seen cases increase each year but now the definition will widen the parameters of
“personally connected” to include ex-partners and family members who do not live
together. This is likely to result in an increase in investigations and prosecutions for this
offence.

A statutory presumption is made under the Act, that victims be eligible for special
measures in criminal, family and civil courts (for example, to provide evidence via video
link). There is now a prohibition on victims of offences being cross-examined by the
person who is alleged to have committed the offence against the victim.

Following release from custody, high risk offenders could now be the subject of
polygraph testing as a condition of their licence. Though polygraph testing isn’t 100%
accurate, domestic abuse offenders could be subject to regular tests to determine
whether they have breached release conditions. Should an individual’s risk be deemed
to have increased they could be returned to prison.

Police have been given new powers to issue civil Domestic Abuse Protection Notices
(“DVPN”). These provide victims with immediate protection from offenders and require
them to leave the home for up to 48 hours. Magistrates’ courts are now able to issue
Domestic Abuse Protection Orders (“DVPO”) following an application by the police.

A statutory duty is to be placed on local authorities to ensure victims and their children
are placed in refuges and other safe accommodation. All those made homeless by
domestic abuse will automatically have ‘priority need’ for homelessness assistance.

The Act ensures that the guidance supporting the Domestic Violence Disclosure
Scheme (“Clare’s law”) is put on a statutory footing. The scheme permits any member
of the public to ask the police if they or someone they know is in a relationship with
someone that could be abusive towards them

The Act creates a new criminal offence of non-fatal strangulation (which includes
suffocation). The act of non-fatal strangulation involves the intentional strangling of
another person or any other act that affects a person’s breathing and could see
offenders face up to 5 years imprisonment.

It extends the scope of disclosing intimate images without the consent of the individual,
also known as ‘revenge porn’, to cover the threat to disclose intimate images with the
intent to cause distress. The maximum penalty of 2 years imprisonment remains in
place.

The Act contains a theoretical statutory bar to Defendants raising the defence of
consent to serious harm for sexual gratification. The intention of the Act was to provide
a clarification of the law on consent following the case of R v Brown [1993] 2 WLR 556.
In Brown and associated cases, the Courts have held a person cannot consent to
serious assaults, such as occasioning actual bodily harm for public policy reasons. It
was argued that the so-called ‘rough sex’ defence was being used often by individuals
stating the death was caused accidentally during ‘rough sex’ where the victim
consented and that this amendment was required to address. However, it remains to be
seen whether this amendment has had the effect that it was intended to.

A new Domestic Abuse Commissioner role was created and is the first of its kind.

The term ‘domestic violence’ has undergone an evolution and now encompasses
psychological, physical, sexual, financial and emotional violence and/or abuse.

Also note honour-based violence and FGM come under domestic violence

There is, however, a continuing problem of the police and courts getting involved with
domestic violence-related issues but the new Domestic Abuse Act 2021 is a major
attempt to reform this problem.

Domestic violence is defined in the Legal Aid, Sentencing and Punishment of Offenders Act
20121 (‘LASPO’ 2012’) as ‘any incident, or pattern of incidents, of controlling, coercive or
threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or
emotional) between individuals who are associated with each other.’ This echoed and reinforced
the case of Yemshaw v Hounslow London BC2 where it was found that the term domestic
violence was not limited to physical violence only.

The recently introduced Domestic Abuse Act 2021 defines domestic abuse to include physical,
emotional, coercive and controlling behaviour and economic abuse. Children under this Act, are
recognized as victims instead of witnesses if they see, hear, or experience abuse in the home.
Under this Act, coercive and controlling behaviour includes ex-partners and family members
who do not live together within the definition of “personally connected”

By the authority of the DAA 2021, the case of Yemshaw and the Home Office – ‘Controlling or
Coercive Behaviour in an Intimate or Family Relationship’, Statutory Guidance Framework,
December 2015:3 David’s conduct of arriving by Katerina’s parent’s home, constantly calling and
messaging and actions that lead to her children apprehending fear may be construed as
domestic violence despite the non-occurrence of physical violence. Her children by definition
under the DAA 2021, may also be considered victims of domestic violence as they have seen
and heard Paul’s shouting from his in-laws' driveway. The totality of his behaviour was
described as threatening. Under DAA 2021, Paul will not be able to cross-examine Katerina.

https://www.iclr.co.uk/blog/commentary/divorce-and-civil-partnership-dissolution-reform-how-
lawful-part-1/

https://www.iclr.co.uk/blog/commentary/divorce-and-civil-partnership-dissolution-reform-how-
lawful-part-2/

https://resolution.org.uk/wp-content/uploads/2022/02/Information-Pack-Divorce-Dissolution-and-
Separation-Act-2020.pdf

1 Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1, para 12(9)
2 Yemshaw v Hounslow London BC [2011] UKSC 3
3 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf