What is a Family?

What is a Family?

Family Law concerns relations between;
1. The individual and the State
  1. Child Protection
  2. Taxation
  3. Welfare
2. Individuals
  1. Parent and Child
  2. Brother and Sister
  3. Husband and Wife
  4. Cohabitants
Aims of Family Law?
1. Disputed
2. To promote morality?
3. Stability?
4. Equality?
5. Self-Determination or Fulfilment?
6. Recognisation and Structure?
7. Intervention or Respect Privacy?
Case Law
1. Telfer & X & Y v Kellock
  1. Ms. Telfer died in car crash
    1. Caused by Kellock
    2. Family may sue in Solatium
  2. Ms. Telfer had been in a long term relationship with female partner (X)
    1. Ms. Telfer had daughter from previous marriage
      1. Partner also had son from previous marriage (Y)
        Who is allowed to sue in Solatium?
        Ms. Telfer's Partner? No
        X's son (Y)? Yes
  3. Damages (Scotland) Act: Relatives
    1. "relative" includes spouse and child
      1. and (c) any person ... who was accepted by the deceased as a child of the family
      2. and (a) any person ... who was ... living with the deceased as husband & wife
    2. X was not Ms. Telfer's relative but X's son was for the purposes of the Act
  4. "A clear picture of a loving, caring household of two adults and two children emerges" - Lady Smith
    1. Humanist "marriage"
    2. Joint tenancy
    3. Joint bank account
    4. Nominated next of kin
    5. Shared childcare duties
    6. Children considered each other brother and sister
2. Fitzpatrick v Stirling Housing Association
  1. Two men lived together
    1. As "husband and wife?"
      1. No - must be a man and a woman
      2. As a "family"
        Yes - degree of mutual interdependence, sharing of lives, caring and love, commitment and support
    2. same-sex partners
  2. Inheritable tenancies
  3. Interpretation of "family" or "husband and wife"
  4. PRE-HRA 1998 APRROVAL
3. Ghadian v Godin-Mendoza
  1. POST-HRA 1998 APPROVAL
  2. Two men lived together
    1. same-sex partners
    2. As "husband and wife"?
      1. Yes - ruling possible due to introduction of HRA 1998, such protections were available to unmarried couples, no reason to exclude same-sex couples
        "Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can" - Baroness Hale
      2. As a "family"?
        Yes
4. Burden & Burden v UK
  1. Two sisters lived as a stable cohabiting couple
    1. Ghadian recognised same-sex couples as being recognised as "husband and wife so why could they not?
      1. Relationship not "marriage-like"
        No discrimination
  2. Argued violation of Art.1 and Art.14 ECHR

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