CILEX Level 3 Family Law

CILEX Level 3 - Family Law

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Marriage

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Caption: : "A contract for which the parties elected by the state both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations" Bellinger v Bellinger (2004)

Capacity to marry

To have capacity to marry the parties must:Not be too closely related to each other;Be aged at least 16;Not be already married or in a civil partnership.

What is too closely related?

Related by bloodA close genetic relationship could cause birth defects and it also avoids incest.  The closest blood relations that have capacity to marry are first cousins.Related by marriageSocial policy restricts marriage between people related by affinity because of concerns about sexual abuse of a younger person by an older step relation.  A person may marry his or her step child if both are over 21 and did not live together in a parent/child relationship when the child was under 18.

Other legal requirements

AgeBoth parties must be 16 or over.  A 16 or 17 year old still needs to get formal permission from a parent or the court before marrying.Already marriedA valid marriage cannot take place if either party is married to or in a civil partnership with someone else at the time of the ceremony.  They are not free to marry until their first partner has died or the first marriage has been brought to an end.

Formalities

Couples must give at least 16 days notice of the marriage at their local register office.  The main exception is marriages in the Church of England where a notice called the 'banns' is read out in church instead.Civil weddings can take place in a register office or in any building registered under the Marriage Act 1994.  Church of England weddings must take place at a Church.Jewish and Quaker weddings can take place anywhere.For other religions, the wedding should take place in a building registered as a place of worship.

Cohabitation

Cohabitation

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Cohabitation contracts

More and more cohabitees are choosing to enter into a contract to regulate their financial and property rights during the relationship and if it breaks down.  This is known as a cohabitation contract and could for example cover the share each party has in the home, how the property is to be divided if they split up and whether either would have a duty to maintain the other.

Property rights

There is no law that allows the court to change the ownership of cohabitees' property.  The first thing to check is whether the parties have declared in writing how they want to hold the property.  If they have, the court need look no further because this will be conclusive.  If the properties have not declared in writing who owns the property, the starting point is set out in Stack v Dowden (2007):A property in joint names belongs to both equally; A property in one party's sole name belongs solely to that party. It is up to the person who thinks that the property is not held like this to prove that it is subject to an "implied trust".  They would have to show that the parties intended that:A property in joint names would not belong to them equally;A property in one party's sole name is actually held for the benefit of them both.

Resulting trusts

This arises when somebody makes a direct financial contribution to buying a property.A resulting trust has no flexibility to take account of any other contributions such as paying the mortgage or bills.The House of Lords has said that resulting trusts will not usually be appropriate in the case of a family home (Stack v Dowden (2007)).

Constructive trusts

There are two requirements for a constructive trust as set out in Lloyds Bank v Rosset (1990):The parties might have actually discussed it and agreed that they would share the property (Eves v Eves (1975)). Even if the parties did not discuss it, they might have behaved in a way that suggested that they did actually intend to share (Stack v Dowden (2007)).The parties must have had a common intention that the property would be shared; and The person seeking an increased share must have relied on their common intention in a way that caused some detriment.

How big is each party's share?

In Oxley v Hiscock (2004) the Court of Appeal said that the court was trying to decide what was fair considering the dealings between the parties.  In Stack v Dowden (2007) the House of Lords said that this was not quite right.  The court is trying to determine what shares the parties actually intended to have and could look at a wide range of circumstances to decide what they intended.In Jones v Kernott (2011) the Supreme Court agreed with this but also considered what to do if it is not possible to tell what the parties intended from the way they behaved.  In this situation, the court should presume that the parties intended to do what was fair in the circumstances and so the court should do what was fair.Under S14 Trusts of Land and Appointment of Trustees Act 1996 the court has the power to declare what shares the property is held in.

Divorce, Nullity and Judicial Seperation

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The ground for divorce

The only ground for divorce is that the marriage has broken down irretrievably (s1(1) Matrimonial Causes Act 1973)).The ground must be established by proving one of the five facts set out in s1(2) Matrimonial Causes Act 1973.

Adultery and intolerability 

Fact A:  The respondent has committed adultery and the applicant finds it intolerable to live with the respondent.Adultery is defined as voluntary sexual intercourse between a man and a woman, one or both being married at the time but not to each other.  Adultery must be between people of the opposite sex.If the couple have continued to live with each other for more than 6 months after the adultery was discovered by the applicant, it will no longer be possible to apply on the basis of that particular act.

The respondent's behaviour

Fact B: The respondent has behaved in such a way that the applicant can no longer reasonably be expected to live with the respondent.The test for deciding whether it is reasonable to expect the spouses to live together was established in Livingstone-Stallard v Livingstone-Stallard (1974).  The Court should consider whether a reasonable person would decide that this particular wife with all of her characteristics cannot reasonably be expected to live with this particular husband with all of his characteristics.If the applicant continues to live with the respondent for up to 6 months after the last example of alleged behavior, this will not be taken into account when deciding to grant the divorce. 

Desertion

Fact C: The respondent has deserted the applicant for a continuous period of two years immediately preceding the presentation of the application.Desertion is rarely used as a fact.

Two years separation with consent

Fact D: The parties have lived apart for a continuous period of two years and the respondent consents to the decree being granted.The parties must be physically living apart.  In Mouncer v Mouncer (1972) the parties lived in separate bedrooms but ate meals together.  They were classed as not living apart.By contrast in Fuller v Fuller (1973) the husband was living in the same house as the wife but as a lodger as he was not able to live alone due to health reasons.  He was not living with his wife as he was living there as a lodger and not her husband.

Five years' seperation

Fact E: The parties have lived apart for a continuous period of five years.Living apart is interpreted  in exactly the same way as Fact D.  The consent of the respondent to the divorce for this fact is not required although they may oppose the grant under s5 Matrimonial Causes Act 1973 on the grounds that the dissolution of the marriage would cause grave financial hardship.

Promotion of mediation

One of the most important methods of ADR in Family Law is mediation.  The mediator will work with the parties to identify what the issues are and help the parties to resolve these issues in order to reach an agreement.s10 Children and Families Act 2014 made it compulsory for an applicant to attend a meeting with a trained mediator before starting any family proceedings.  This is known as a Mediation Information and Assessment Meeting (MIAM).  The mediator will try and engage the other party but they are not required to attend.  It is not compulsory to mediate, just for the applicant to attend a MIAM.

Nullity

Void marriageOne which never existed in the first place.Voidable marriageA valid marriage unless and until declared void by the court granting a decree of nullity.

Void Marriage

A marriage will be void if the parties either lacked capacity to marry each other or knowingly and wilfully failed to comply with certain formalities.If a marriage is void a party will not be entitled to anything if the other party dies without a valid will.  If one of the parties had made a will that provided for the other, if a decree of nullity is granted, the will must be interpreted as if the spouse receiving the provision had died at the date of the decree. 

Voidable marriages

The grounds on which a marriage is voidable are set out in s12 Matrimonial Causes Act 1973.The grounds that can be used by either party to the marriage are:The marriage has not been consummated;One of the parties did not consent to the marriage because of duress, mistake, unsoundness of mind or for some other reason;One of the parties was suffering from a mental disorder as defined in the Mental Health Act 1983 which meant that they were unfit to marry;Either of the parties got an interim gender recognition certificate after the marriage.

Some of the grounds can only be used by one of the parties:The marriage has not been consummated because of the wilful refusal of one of the parties;At the time of the marriage, one of the parties was suffering from a sexually transmitted infection and the other was unaware of this;At the time of the marriage, one spouse was pregnant by someone other than the other spouse;One of the parties had legally acquired a gender before marriage

Continued...

Judicial seperation

Judicial separation is a formal separation of the parties that does not end the marriage.  A decree of judicial separation can be granted on proof of any of the five facts.  Unlike divorce, judicial separation can be granted within the first year of marriage.If judicial separation is granted one spouse will not inherit anything if the other dies without a valid will.  The court can made financial and property orders similar to those in a divorce.  The main difference is that the court cannot make pension sharing orders following judicial separation.Judicial separation is quite rare in practice and tends only to be where the parties do not wish to get divorce for religious or cultural reasons.

Civil partnership

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Capacity to form a civil partnership

To form a civil partnership the parties must be:Of the same sex;Not already married to or in a civil partnership with another person;Over 16;Not too closely related to each other.

Formalities

Parties must give notice at a register office or approved premises; "Civil partnership document" must be signed by both parties before a civil registrar; There must be two witnesses.

Ending a civil partnership

Very similar to marriage; Dissolution Order or Nullity Order; Separation Order - equivalent order of judicial separation in relation to a marriage. Civil partner can apply for financial remedies under s72 and Schs 5 and 6 Civil Partnership Act 2004 which recreates the equivalent law for marriages.

Financial orders

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The grounds

A magistrate sitting in the Family Court can make financial orders under the Domestic Proceedings and Magistrates' Courts Act 1978 if one of the grounds in s1 is satisfied:The respondent has failed to provide reasonable maintenance for the applicant or for any child of the family;The respondent has behaved in such a way that the other cannot reasonably be expected to live with them;The respondent has deserted the applicant.

Orders available

Under s2 DPMCA 1978 the court may make the following orders:Periodical payments - ongoing payments usually paid weekly or monthly;Lump sum - up to £1,000.

Orders by agreement

Also known as a consent order.  Either party can apply under s6 DPMCA 1978 as long as both agree to the order being made.Consent orders can be for periodical payments and a lump sum.  Unlike under s2, lump sums are not limited to £1,000

Financial orders on divorce

The court has the power to make a wide variety  of financial orders under ss21-24 Matrimonial Causes Act 1973:Periodical payments - the terms can be varied by the court if the parties circumstances change.  The court can grant a secured periodical payments order by putting capital into a special fund or a charge on another property to be activated if the payer does not pay.  If there is no security the order is an unsecured order.  A periodical payments order ends when one party dies or the recipient remarries or forms a civil partnership.Maintenance pending suit - a periodical payments order can only take effect once the final decree has been granted.  Maintenance pending suit is a temporary order that lasts until the final decree.Lump sum orders - this is a specified amount in one or more lump sums.  A lump sum can be secured and the payer could be ordered to pay interest.  These orders are frequently made instead of a periodical payments order the advantage being that it ends financial ties between the parties known as a clean break.

Financial orders continued...

Transfer of property orders - the court can order one person to transfer property to the other, or for the benefit of a child of the family.  Settlement of property - the court can order one party to settle property for the benefit of the other or a child of the family.  This usually means that the property will be held in trust either for life or until a specified date or event such as remarriage.  This is mostly used to deal with the family home.Mesher v Mesher (1980) (a Mesher Order) - This is an order that settles property on terms that it is not to be sold until the child leaves school or reaches a certain age.Martin v Martin (1977) (a Martin Order) - This is an order that allows one party to live in the family home until they remarry, move or die, at which point the proceeds will be split.Sale of Property - The court has power to order the sale of any property.

Financial orders continued...

Pensions - The court can attach all or part of the pension of either party at the time of the divorce.  Once the party retires the other party will receive their attached portion.  The disadvantage of this is that the parties cannot receive their shares until the other spouse who owns the pension has taken it.  Instead, the court can share the pension at the time of the divorce.

The s25 factors

The court is required to have particular regard to eight specific factors.  The weight to give each factor will depend on the circumstances of the particular case: The financial resources of the parties - income, earning capacity and property at the time of the order and in the foreseeable future. The present and future financial needs, obligations and responsibilities of the parties - usually includes costs such as housing, bills, food and travelling expenses. The standard of living enjoyed by the family before the breakdown of the marriage - there is usually not enough in the pot for parties to maintain the same standard of living as they did together.  The court will try to make sure that the drop in standard of living affects both parties.   The age of each party and the duration of the marriage - age is usually relevant to the question of whether or not either party can expect to find a job and what opportunities they have to obtain a mortgage or build a pension.   Any physical or mental disability of either party - Although disability will affect both the needs and resources of the affected party, the ex spouse will not necessarily be required to meet needs attributable to the disability.

s25 factors continued...

6.  The contributions made by the parties to the welfare of the family during the marriage and to be        made in the future - the court will take account of the fact that one party has contributed by                staying at home and looking after the children, while the other went out and earned money.  It is        clear that financial and non financial contributions are both valuable, whatever the gender of the        spouses.7.  The conduct of the parties if that conduct is such that it would be inequitable to disregard it - the        conduct has to be both obvious and gross to have any effect on the amount of an order.8.  The value of any benefit which the party will lose the chance of acquiring if the marriage is                    dissolved - this includes any benefits at all, including pension rights and state benefits. 

The clean break principal

A clean break order makes the parties financially independent of each other after a divorce without the possibility of that decision changing.Under s25A Matrimonial Causes Act 1973, the court has a duty to consider whether a clean break would be appropriate.  Any clean break order will resolve the parties' financial and property issues on a once-and-for-all basis.  Clean breaks are now routinely ordered in a variety of different cases.  For example, the parties may be young, both in equivalent employment, with no children.  

Judicial guidance

The s25 factors offer little guidance as to how the courts should exercise their discretion.  Therefore, the House of Lords has laid down a number of principals for the courts to take into account in exercising this discretion:Before 2000, courts tended to award a wife merely what was required for her reasonable requirements.  This approach was challenged on White v White (2000).  The House of Lords took the view that the wife's financial needs even when generously interpreted as reasonable requirements, should not be seen as a ceiling on any award.  Confining a wife to her reasonable requirements would frequently leave the husband with the majority of the assets.  Instead, the court should seek a fair outcome, which should be tested against the yardstick of equality and any departure from equality would have to be justified.  In the immediate aftermath of White, it was successfully argued on behalf of wealthy husbands that their hard work and talent in building up a business justified a departure from equality (Cowan v Cowan (2001).  In Lambert v Lambert (2003) the Court of Appeal attempted to limit such arguments by stating that it was only in exceptional circumstances that one spouse would be found to have made a special contribution.  Miller v Miller; McFarlane v McFarlane (2006) focused on the question of whether the sharing principal applied to all of the parties' assets.  It was agreed that assets acquired during the marriage by the joint efforts of both parties would usually be shared.  Assets acquired before the marriage or received as a gift from a third party during the marriage would not be automatically shared.

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Children

Parental responsibility 

s3(1) Children Act 1989 defines parental responsibility as:"All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."Parental responsibility includes the following:  The right to make decisions about the care and upbringing of the child;The right to make decisions about the child's property;The duty to maintain the child;  The duty to ensure that the child is educated and the right to determine what kind of education they should receive;  The right to chose the child's surname;  The right to chose his religion; The right to consent to medical treatment; The right to appoint a guardian to look after the child on the parents' death;  The right to authorise the marriage of a child under 18;  The right to be involved as a party in proceedings involving the child under Children Act 1989.

Who has parental responsibility

A father and mother who are married to each other when their child is born will automatically have parental responsibility.  This also includes parents who marry after the birth so a father who does not have parental responsibility will acquire it by marrying the mother after the birth.An unmarried father will acquire parental responsibility if he is registered as the father on the birth certificate.  An unmarried father who is not named on the birth certificate may also acquire parental responsibility by entering into a formal parental responsibility agreement with the mother or obtaining a parental responsibility order from the court.In S v R (Parental Responsibility) (1993) the court stated that the matters to be considered before granting a parental responsibility order to a father are:The commitment shown towards the child by the father;The degree of attachment between the father and the child;The fathers reasons for applying for the order.Even if these conditions are satisfied, the Court will not necessarily make an order.  In Re L (Contact: Genuine Fear) (2002) the court refused to grant a parental responsibility order even though it was accepted that the conditions in S v R were satisfied.  This was due to the mother's genuine fear of the father, the resulting unlikelihood of the parties ever being able to agree on decisions relating to the child and the possible harm to the child if the mother were caused distress.

Other ways of acquiring PR

A person named in a child arrangements order will have parental responsibility as a result.  Someone who acquires PR in this way will only keep it while the child arrangements order is in place.  The exception is if the father acquires parental responsibility from a child arrangements order - he will keep parental responsibility even if the child arrangements order comes to an end.  Another way to acquire parental responsibility is being appointed as the child's guardian - this would usually take effect on the death of the last parent with parental responsibility.  

Principals and Factors

Children Act 1989 sets out three principals which the court should apply when making a decision about a child's upbringing.