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R. Jago
LLB 2660019
2008
This subject guide was prepared for the University of London External System by:
u Robert Jago, MPhil (Cantab), Lecturer in Law, School of Law, University of Surrey
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
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Family Law page i
Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Abbreviations used in this subject guide. . . . . . . . . . . . . . . . . . . . 7
2 Marriage and civil partnerships . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 The distinction between void and voidable marriages . . . . . . . . . . . . 11
2.2 The grounds for a void marriage. . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Voidable marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.4 Effects of a nullity decree . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5 Civil partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3 Divorce and dissolution . . . . . . . . . . . . . . . . . . . . . . . . . 31
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.1 The divorce process under the MCA 1973 . . . . . . . . . . . . . . . . . . . 33
3.2 The background to the modern law . . . . . . . . . . . . . . . . . . . . . . 34
3.3 The divorce facts under the MCA 1973 . . . . . . . . . . . . . . . . . . . . 36
3.4 Conciliation and reconciliation . . . . . . . . . . . . . . . . . . . . . . . . 43
3.5 Dissolution of civil partnerships . . . . . . . . . . . . . . . . . . . . . . . . 47
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4 Protection against domestic violence . . . . . . . . . . . . . . . . . . 51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.1 The criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.2 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.3 The Family Law Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4.4 Enforcement of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.5 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
5 Family maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
5.1 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
5.2 Financial support during marriage. . . . . . . . . . . . . . . . . . . . . . . 77
5.3 Other provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
page ii University of London External System
6 Financial provision upon divorce, dissolution, nullity
and separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.1 Financial provision orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.2 The limits of the financial powers of the court . . . . . . . . . . . . . . . . 88
6.3 The exercise of the courts powers. . . . . . . . . . . . . . . . . . . . . . . 89
6.4 The welfare of children . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
6.5 All the circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
6.6 The clean break . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
7 Child support and the Child Support Acts . . . . . . . . . . . . . . . . 107
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7.1 Family maintenance outside the Child Support Acts . . . . . . . . . . . . . 109
7.2 Financial provision during marriage . . . . . . . . . . . . . . . . . . . . . 111
7.3 The Child Support Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . 113
7.4 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
7.5 Child support in action . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
7.6 Continued dissatisfaction and the road to further reform . . . . . . . . . . 123
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
8 Cohabitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.1 What is cohabitation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
8.2 Legal differences between unmarried and married couples . . . . . . . . . 131
8.3 Same-sex couples: substance over form . . . . . . . . . . . . . . . . . . . 136
8.4 Discrimination or difference? . . . . . . . . . . . . . . . . . . . . . . . . 141
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
9 Status and parentage . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.1 Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.2 Status: legitimacy and illegitimacy . . . . . . . . . . . . . . . . . . . . . 153
9.3 Those with parental responsibility. . . . . . . . . . . . . . . . . . . . . . 157
9.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 159
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
10 Wardship and the inherent jurisdiction . . . . . . . . . . . . . . . . . 165
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.1 Wardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.2 The inherent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
11 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . 177
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
11.1 The nature of welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.2 The meaning of the welfare principle . . . . . . . . . . . . . . . . . . . . 181
11.3 Criticisms of the welfare principle . . . . . . . . . . . . . . . . . . . . . . 185
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Family Law page iii
12 The courts powers in family proceedings . . . . . . . . . . . . . . . 191
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.1 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
12.2 Restrictions on orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
12.3 Who may apply for orders? . . . . . . . . . . . . . . . . . . . . . . . . . 199
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
13 Children and local authorities . . . . . . . . . . . . . . . . . . . . . . 205
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
13.1 Philosophy of the Children Act . . . . . . . . . . . . . . . . . . . . . . . 207
13.2 Local authority duties to children looked after by them . . . . . . . . . . . 210
13.3 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
13.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 219
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
14 Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
14.1 Adoption under the Adoption and Children Act 2002 . . . . . . . . . . . . 227
14.2 Adoption services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
14.3 The adoption order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.4 Placement and consent . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
14.5 Contact and the childs right to know . . . . . . . . . . . . . . . . . . . . 234
14.6 Adoption and the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . 235
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Feedback to activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
page iv University of London External System
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 Abbreviations used in this subject guide . . . . . . . . . . . . . . . . . . 7
1 Introduction
page 2 University of London External System
Introduction
The law relating to the family is of crucial importance to every individual, whether
adult or child. It is family law that regulates interpersonal relationships. Family law
provides the legal framework for the establishment of marriage, the dissolution of
marriage, the legal consequences of marriage and cohabitation, civil partnerships and
the legal regulation of domestic violence. Much of family law nowadays is concerned
with the law relating to children. The status of a child, its parentage, the rights of the
child, the childs welfare and the powers of the state in relation to children are all
central concerns of this subject.
Family Law 1 Introduction page 3
1.1 Reading and resources
Recommended texts
You are advised to purchase a collection of statutes concerning family and child law.
There are a number of collections which are appropriate. They include compilations
published by Sweet & Maxwell and by Blackstone. Your main objective must be to
secure an up-to-date statute book.
The most up-to-date and appropriate textbook
There are three main differences between a void and voidable marriage (or civil
partnership).
1. A decree of nullity can be pronounced in relation to a void marriage or civil
partnership at any time, even after the death of the parties. In contrast, a decree
can only be granted annulling a voidable marriage or civil partnership during the
lifetime of both parties.
2. If the marriage or civil partnership is void, no valid marriage existed, whereas, if the
marriage or civil partnership is voidable, it is valid unless and until annulled.
3. If the marriage or civil partnership is void, any interested person may take nullity
proceedings. If the marriage or civil partnership is voidable, only the parties to it
may take proceedings to have it annulled.
2.1.1 The distinction between a decree of nullity and divorce
A decree of nullity is a statement that a marriage or civil partnership never existed:
the decree always states that the marriage or civil partnership is and has been,
null and void. The conditions of annulment, with the exception of wilful refusal to
consummate the marriage (which does not apply to the civil partnership), relate
to conditions at the time of marriage. Divorce and dissolution, on the other hand,
concern marriages and civil partnerships that exist but which are now being brought
to an end. The grounds for divorce and dissolution irretrievable breakdown are
concerned with events that occur after the marriage takes place. Despite the fact
that nullity and divorce and dissolution have these different concerns, the law has
considerably assimilated the consequences of nullity and divorce and dissolution
decrees, especially in relation to the status of children born within an annulled
marriage and financial provision on the granting of a decree.
2.1.2 The significance of nullity
Historically, the law of nullity was an important remedy for marital breakdown
because, until 1857, judicial divorce was unavailable. In the absence of a private Act of
Parliament, nullity was the only way of bringing a marriage to an end. Until the advent
of irretrievable breakdown as the grounds for divorce, introduced by the Divorce
Reform Act 1969, nullity remained important as it was the only way an innocent
spouse could be dispensed with. Since 1969, nullity has dwindled in importance. For
example, in 1998 there were only 474 nullity decrees, compared with 143,879 decrees
of divorce. Nonetheless, nullity is important because it clarifies the legal capacity
required for a marriage in English law and provides a remedy for those individuals
who, for cultural or religious reasons, are forced to eschew divorce.
It must be noted, however, that there is some support for the view that, given the
nature of nullity proceedings (which usually involve a full hearing and sometimes
unpleasant evidentiary disputes, at the very least), the concept of the voidable
marriage should be abolished (Cretney et al., p.68).
Authors emphasis.
page 12 University of London External System
Summary
English law demands that some formalities are met before a couple may marry or form
a civil partnership. If these formalities are missing then a party to the marriage or civil
partnership may seek a decree of nullity to nullify the marriage or civil partnership,
thereby erasing its existence. The law of nullity is a useful device for those who, for
religious reasons, do not want to divorce. It may also be useful for those in a civil
partnership who do not want to proceed with dissolution of the partnership when
defective formalities would suggest there was no correctly formed partnership.
A marriage or civil partnership can be void or voidable. Void marriages and civil
partnerships are those which are deemed by a court never to have existed. A voidable
marriage or civil partnership is one which is deemed to have existed until one of the
parties has sought to annul it on one of the specified grounds. Calls for reform of the
law of nullity are usually based around the rules concerning voidable marriages being
abolished.
2.2 The grounds for a void marriage
The grounds for a void marriage are set out exhaustively in s.11 Matrimonial Causes Act
1973 (MCA). These grounds also apply to civil partnerships (See Section 2.5 for further
details).
2.2.1 Prohibited degrees
The Marriage Act 1949 Schedule 1 (as amended) sets out a list of relatives whom a
man may not marry. A corresponding list of prohibitions is set out for women. The
prohibited degrees include half-blood relationships.
The following points should be noted about the statutory list of the prohibited
degrees of marriage.
u If a child is adopted he or she remains within the same prohibited degrees in
relation to his or her natural parents and other relatives as if he or she had not
been adopted (Adoption Act 1976, ss.39(1), 47(1)). In addition, an adoptive parent
and the child he or she adopts are within the prohibited degrees (Adoption Act
1976, s.39(1)) but there is no other prohibition arising out of adoption. A man may
therefore marry his adoptive sister or any other female adoptive relation and vice
versa.
u The list of prohibited degrees includes not only relationships of consanguinity (i.e.
where there is a blood relationship between the parties) but also certain
relationships of affinity (i.e. relationships created by marriage). Since 1980 a
number of private Acts of Parliament have been promoted by couples who wanted
to marry within an in-law or step relationship. The policies underlying such
marriages were considered in a report No Just Cause produced by a group set up
by the Archbishop of Canterbury. The group was divided as to the policy the law
should pursue in respect of marriages between affines
A residence order is
an order settling the
arrangements to be made as
to the person with whom a
child is to live.
Such marriages must be secular and take a simple form. The parties
declare that they know of no lawful impediment to the marriage and each must call
upon those present to witness that they take the other as their lawful wedded
husband or wife. The ceremony takes place in the Register Office or other place
licensed for marriage ceremonies (see below), with open doors and two or more
witnesses must be present.
Marriages in a registered place of religious worship. Parties to such marriages must
comply with civil preliminaries. The building in which the ceremony is to take place
must be registered for the solemnisation of marriages as a place of meeting for
religious worship. Courts have held that religious worship within this formulation
does not extend to the practices of Scientologists (see ex parte Segerdal [1970] 2 QB
697), but it is clear that Sikh and Hindu temples and Islamic mosques are entitled
to be registered for the solemnisation of marriage. If a Registrar is not present, the
celebrant must be an authorised person to carry out marriages. The form of the
ceremony is a matter for the parties and the religion controlling the building, although
the parties must at some stage declare, as in civil marriages, that they know of no
lawful impediment and each must state that they call upon those present to witness
that they take the other party to the marriage to be my lawfully wedded wife (or
husband).
Quaker
and Jewish marriages. These were excepted from the provisions of Lord
Hardwickes Act. Although civil preliminaries must be completed, the celebration of
Quaker and Jewish marriages is governed solely by the rules of those religions.
Places licensed for marriage ceremonies
The Marriage Act 1994 amends the Marriage Act 1949 and provides that designated
public places may be licensed by local authorities for the ceremony of marriage. The
1994 Act also provides that marriages may be solemnised in registration districts in
which neither party resides. The Marriages (Approved Premises) Regulations 1995 state
that the premises must be a permanently immovable structure comprising at least
a room, or any boat or other vessel which is permanently moored. The ceremony
cannot be religious.
All marriages, except Jewish and Quaker marriages and those that are conducted
under special or Registrar Generals licence, must take place between 8.00 am and
6.00 pm. However, failure to observe these requirements will not invalidate the
marriage.
Failure to observe formalities
The majority of defective formalities in a marriage do not affect the validity of a
marriage at all. In those cases where the form does have a bearing on the validity
of the marriage, the marriage will be void only if both parties contracted it with
knowledge of the defect. In effect, therefore, it is impossible for a person in England to
contract a marriage innocently which is void because of a formal defect.
It must be noted, however, that in R v Bham [1966] 1 QB 159 the court did suggest that
marriage in English law can only be created by something which can be described as
a ceremony in a form known to be, and recognised as capable of producing, a valid
marriage. In s.24 and s.48 the MA specifically enacts that certain defects, including
failure to acquire the necessary consents, will not invalidate a marriage. In s.25 and
s.49 it sets out those defects which will invalidate a marriage where both of the parties
are aware of the irregularity at the time of the ceremony. The Act speaks of the parties
knowingly and wilfully intermarrying in contravention of the requirements, thus
making it unclear whether both parties must know that, as a question of fact, the
formality has not been complied with or whether in addition they must know that, as a
question of law, the defect will invalidate the marriage. The Act is silent as to the effect
of other irregularities, but it may be confidently presumed that, unless the defect is
In a civil marriage, no
declarations or procedures
of a religious nature are
permitted.
A decree may be granted if at the time of the marriage the respondent was pregnant
by some person other than the petitioner.
Activity 2.6
What would be the status of a sham marriage?
2.3.6 Bars where the marriage is voidable
Where the marriage is voidable, the petition may fail if one of the bars contained in s.13
MCA is established. Note that there are no bars where the marriage is void.
Approbation
Section 13(1) provides that the court shall not grant a decree of nullity on the ground
that a marriage is voidable if the respondent satisfies the court:
1 that the petitioner, with knowledge that it was open to him to have the marriage
avoided, so conducted himself in relation to the respondent as to lead the
respondent reasonably to believe that he would not seek to do so, and
2 that it would be unjust to the respondent to grant the decree.
The respondent must thus establish that the petitioner conducted himself or herself
in some way as to result in the respondents belief that he or she would stand by the
marriage and that, at the time of this conduct, he or she knew that he or she could have
the marriage annulled. In addition, it must be established that some injustice would be
caused to the respondent were the marriage to be annulled.
Cases indicate that the bar is rarely applied, as it is difficult to establish injustice now
that financial provision is available on a decree of nullity. See D v D [1979] Fam 70.
Further, the bar is not one of public policy, but concerns the conduct of the parties
towards one another. Hence in D v D where the marriage had not been consummated
because the wife refused to undergo an operation which would have cured a physical
impediment to intercourse and the husband, although aware that he had a remedy
in nullity, agreed with his wife that they should adopt two children, the bar was not
applied. Although a previous case (see W v W [1952] P 152) had held that adoption of
children within an unconsummated marriage could amount to public policy reasons
for approbation, in D v D, Dunn J held that such public policy reasoning could not be
applied after the enactment of what is now s.13(1). It has been suggested (Cretney et al.,
pp.6465) that the bar may operate in companionate marriages.
Time
Where proceedings are brought under s.12(c) (lack of consent), s.12(d) (mental
disorder), s.12(e) (venereal disease) and s.12(f) (pregnancy per alium), it is an absolute
bar if proceedings are not brought within three years of the marriage (see s.13(2)).
However, the court may give leave for the institution of proceedings after the
expiration of three years if the petitioner has suffered from mental disorder at some
time during the three year period, and it is in all the circumstances just to do so (see
s.13(4)).
You are advised to look closely at the dates of occurrence of relevant events when
answering examination problems on nullity.
Knowledge of defect
A petition founded on s.12(e) (venereal disease) or s.12(f) (pregnancy per alium) will fail
unless the petitioner can satisfy the court that, at the time of marriage, he or she was
ignorant of the facts alleged (see s.13(3)). The bar will not operate unless the petitioner
is aware of all the material facts. The fact that the husband knows that his wife is
pregnant at the time of the marriage ceremony is not sufficient; he must also know
that she was pregnant by another man.
Pregnancy by another.
page 24 University of London External System
Self-assessment questions
1. Define (a) a void marriage and (b) a voidable marriage.
2. What did the report No Just Cause deal with?
3. Non-consummation can make a marriage voidable. In what circumstances would
non-consummation not do so?
4. In what circumstances can mental illness invalidate a marriage?
5. How would a forced marriage differ from an arranged marriage?
Activity 2.7
Look at the facts of a marriage and decide whether a decree of nullity would be
granted on the basis of the marriage being void or voidable.
Fact Void? Voidable?
a Peter marries Shelley, having already married Lucy.
b Lofty marries Michelle despite the fact that she is
pregnant by Dennis.
c Hayley marries Roy despite the fact she was born male
and has had gender reassignment surgery.
d Salma, a devout Muslim, marries Adi because her
parents suggest that they will kill her if she refuses.
Summary
To annul a marriage under s.12 MCA the petitioner will have to show that, although
the marriage took place, a particular factor makes the marriage voidable. The factors
to be relied upon include one partys incapacity or wilful refusal to consummate the
marriage. Where there is a lack of consent be it by duress, mistake, unsoundness of
mind or otherwise this may also make the marriage voidable. A nullity decree may
also be sought if at the time of the marriage one of the parties was suffering from a
mental disorder, the respondent was suffering from a venereal disease or was pregnant
by another. There exist some bars to a nullity decree on the grounds of it being
voidable. These include approbation, time and knowledge of the defect.
2.4 Effects of a nullity decree
At one time the distinction between nullity and divorce was pursued to its logical
conclusion. A nullity decree, unlike a divorce decree, was based on the assumption
that there had never been a valid marriage. Thus any children of the relationship were
illegitimate, neither party was under an obligation to provide financial support for
the other and any property transactions undertaken on the faith that the marriage
was valid had to be retrospectively unscrambled. Over the last 30 years, statute has
resolved many of these difficulties, so that now the consequences of a nullity decree
are almost identical to those of a divorce decree.
Go to your study pack and
read Marriage eligibility by
Stephen Cretney. This will
help you to consider the
historical development of the
current law of nullity and its
contemporary relevance.
Family Law 2 Marriage and civil partnerships page 25
2.4.1 Status of children of voidable marriages
This means that children of voidable marriages are legitimate, because the marriage
is treated as valid up until it is annulled (see s.16 MCA). Children of void marriages shall
be treated as legitimate children of their parents if, at the time of the insemination
resulting in birth (in cases of artificial insemination) or at the time of the childs
conception (or at the time of marriage if later), both or either of the parties reasonably
believed that the marriage was valid. See Legitimacy Act 1976 s.1 as amended by Family
Law Reform Act 1987 (FLRA) s.28. It is immaterial whether the belief that the marriage
was valid is due to a mistake of law. It is to be presumed, unless the contrary is shown,
that one of the parties reasonably believed at the relevant time that the marriage was
valid. However, a child will only be treated as legitimate under these provisions if the
birth occurred after the void marriage. See Re Spence [1990] 2 FLR 278.
2.4.2 Financial provisions
It appeared for some time that a party to an annulled marriage had exactly the same
entitlement to financial provision from his or her partner as a party to a marriage
terminated by divorce (MCA ss.23, 24 as amended by the FLA 1996). See Whiston v
Whiston [1995] Fam 198 in which a woman knowingly entered a bigamous marriage in
1973. On the granting of a decree of nullity, the wife sought financial provision. On
appeal from a lump sum order, the Divisional Court held that the fact one party knew
of the illegality of the marriage did not bar claims for ancillary relief,
although in the
circumstances of the case and because of the severity of the wifes conduct, the award
would be reduced from 25,000 to 20,000. If a void or voidable marriage is
terminated by the death of one of the partners the survivor may apply for financial
provision from the estate of the deceased partner (Inheritance (Provision for Family
and Dependants) Act 1975, ss.1(1), 25(4)).
However, in the same case the Court of Appeal held that public policy demanded
the denial of financial provision to the wife in the light of her criminal conduct in
bigamously marrying.
This uncertainty of position was clarified in Rampal v Rampal (No2) [2001] 2 FLR 1179.
It remains the case that a void marriage is deemed to be no marriage at all and that
transactions, for example property transactions, entered into on the assumption of
the marriages validity will be set aside. Where voidable marriages are concerned,
however, s.16 MCA provides that:
a decree of nullity... in respect of a voidable marriage shall operate to annul the marriage
only as respects any time after the decree has been made absolute, and the marriage shall,
notwithstanding the decree, be treated as if it had existed up to that time.
Ward v Secretary of State for Social Services [1990] 1 FLR 119 illustrates the operation of
s.16. The applicant was entitled to an army widows pension. Under the terms of its
award the pension ceased to be payable if she remarried. In 1986 she went through
a ceremony of marriage with a man whom she discovered after the marriage was a
manic-depressive. The marriage was never consummated and the applicant obtained
an annulment. She applied to have her widows pension restored, but it was held
that the annulled marriage constituted a marriage for the purposes of the rule that
a widows pension is terminated upon remarriage. The effect of s.16 was to treat that
marriage as a valid marriage for all purposes up to the decree of annulment.
See also Re Roberts [1978] 3 All ER 225, where a voidable marriage revoked a prior will.
Ancillary relief is the term
given to the powers of
the Court to make orders
related to divorce or other
matrimonial proceedings.
page 26 University of London External System
2.5 Civil partnerships
Given that sexual relations between men had been outlawed in the UK until 1967 it is
astonishing to think that it has only taken 37 years for the law to formally recognise
the relationships between same-sex couples in the way that opposite-sex couples are
able to be recognised via marriage. For those generations of same-sex couples who
suffered significant discrimination as a consequence, these reforms could not have
come too soon. Due to extensive pressure from the gay community as a whole, and the
governments commitment to equality and social justice, the law was finally changed
in 2004.
The Civil Partnership Act 2004 (CPA) has had a far-reaching legal effect. It creates a
new legal status of civil registered partner (s.1 CPA) and brings English law into line
with that of The Netherlands, Belgium, parts of Canada, Denmark, Sweden, Portugal,
Spain and Germany. It grants various rights and responsibilities to those homosexual
partnerships which have been registered. Like marriage, it has certain formalities which
need to be in place.
In many ways the formation of the civil partnership is broadly similar in process to
that of the civil wedding. The registration cannot take place in a place of religious
worship and no religious service is permitted. A particular difference between a civil
marriage and a civil partnership is the form of words used: for a civil partnership, unlike
a civil wedding, no particular form of words need be used. Section 2(1) of the CPA only
requires that both civil partners have signed the civil partnership document. Once
this has happened the partnership has been registered. It is not as restrictive as a civil
wedding in this way and this is to recognise the fact that it is NOT a marriage.
For the purposes of nullity it is not surprising that much of the substance of the
existing law applies to civil partners. The form is, however, different and can be found
in ss.49s.50 CPA. Here the same grounds of prohibited degrees, age limits, defective
formalities, already married or in a civil partnership and that the parties are of the
same sex apply (remember only people of the same sex can register a civil partnership)
and will result in the partnership being void. The grounds for the partnership being
voidable are a lack of valid consent (due to drunkenness or mistake), mental disorder
or pregnancy by a third party. The differences arise in the nullity provisions due to non-
consummation and venereal disease. This logically means that no civil partnership has
to be consummated.
Following the annulment of a civil partnership the same rules concerning financial
provision apply as for the annulment of a marriage.
Useful further reading
Baker, M. Nullity proceedings in the twenty-first century: a case for reform?
(2002) NLJ 942.
Barton, C. White Paper Weddings the beginnings, muddles and ends of
wedlock (2002) Fam Law 431.
Bradney, A. Duress and arranged marriages (1983) 46 MLR 499.
Bradney, A. Developing human rights? The Lords and transsexual marriages
(2003) Fam Law 585.
Brunner, K. Nullity in unconsummated marriages (2001) Fam Law 837.
Duckworth, P. What is a family? (2002) Fam Law 367.
Gaffney-Rhys, R. M v B, A and S(By the Official Solicitor) protecting vulnerable
adults from being forced into marriage [2006] CFLQ, 295.
McCafferty, C. Gays, transsexuals and the right to marry (2002) Fam Law 362.
Poulter, S. The definition of marriage in English law (1979) 42 MLR 409.
Family Law 2 Marriage and civil partnerships page 27
Probert, R. When are we married? Void, non-existent and presumed marriages
LS, Vol. 22, No. 3 (September 2003).
Probert, R. How would Corbett v Corbett be decided today? [2005] Fam Law 382.
Sample examination questions
Question 1 The law of nullity should be abolished as it serves no purpose not
achieved by divorce. Discuss.
Question 2 Alice and Bertram, aged 16 and 19 respectively, decided in 2008 that
they wished to marry. Alices parents are opposed to the idea and Alice knows that
they will not give their consent. As a result, Alice and Bertram travelled several
hundred miles to a town in which the Peace and the Purity Church is situated. The
Peace and the Purity Church is located on the tenth floor of an office block. The
self-styled head of the church agreed to marry Alice and Bertram at 8.00 pm. The
church requires no formalities, but uses the prescribed words of the marriage
ceremony and issues marriage certificates to those for whom it performs marriage
ceremonies.
Alices parents have just learned of their daughters marriage and wish to be
advised as to its legality. Advise Alices parents.
Question 3 Annie and her family all belong to a small religious group known as
the Minitheists. One of the tenets of the religion is that a Minitheist must marry
another Minitheist. Annie has been told by her parents that she must marry Bertie,
a promising Minitheist, widely regarded as a future high priest of the religion.
Annie, however, wanted to marry Cuthbert, who was not a Minitheist. In February
2007 Annies father announced that he would cut her out of his will unless she went
through a civil ceremony on 1 March 2007. After the ceremony Annie and Bertie
agreed not to have sexual intercourse for the time being. There were two reasons
for this agreement. First, both parties considered that a civil ceremony was not
respectable and that Bertie ought to arrange a Minitheist religious ceremony.
Secondly, Annie wanted time to overcome a psychological abhorrence to Bertie.
However, Annie declared her intention of making the best of the marriage.
Unknown to Bertie, Annie has been having an affair with Cuthbert since July 2007. In
January 2008 Bertie (who has still not arranged the religious ceremony) discovered
the existence of this affair. Divorce is forbidden to Minitheists.
Advise Annie, who wants to have the marriage annulled.
Question 4 Brian and Maurice registered their civil partnership in April 2008.
They signed the register in the local church and sang The Lord is my Shepherd
as a celebration of their union. Brian is married to Cara and Maurice was living
with Victor prior to the registration of the partnership. Brian and Maurice had
always had an active sex life prior to the registration but since the partnership was
registered Brian has refused to consummate the partnership believing that Maurice
has a venereal disease. Brian also begins to doubt Maurices commitment to the
partnership and contacts Maurices mother to discuss her sons personality in a
bid to understand him further. Maurices mother disowned Maurice when he had
surgery to become a man, having previously been Monica. She missed her daughter
and refused to acknowledge Maurice as her son.
Advise Brian as to the validity of his civil partnership.
Advice on answering the questions
Question 1 This essay question demands a good knowledge of the law of nullity so
you must know the grounds for a void and a voidable marriage. The grounds for a
void marriage include prohibited degrees of relationship, being under 16, defective
formalities, bigamy, same-sex and polygamy (which is outside the syllabus). The
grounds for voidable marriages are non-consummation, lack of consent, mental
disorder, venereal disease or pregnancy by another. Remember to structure your
answer by introducing the law and documenting the fact that the petitions for nullity
are very few (only 657 petitions in 2001). This may add to calls for its abolition. But does
page 28 University of London External System
it serve a purpose? It does make clear the essential requirements of a legal marriage,
which distinguish the relationship from other types of relationships. Does it serve a
purpose now? This would lead into an interesting discussion of the justifications for
the grounds. Prohibited degrees of relationship is not as justified as it once was , in
light of recent genetic evidence. It may be justified on social and public policy grounds
but not on medical grounds; same-sex marriage also needs to be reconsidered in light
of the growth in the numbers of transsexuals. For voidable marriages fruitful areas of
debate would include non-consummation, when divorce would allow for this under
s.1(2)(b) MCA, and duress in a multi-ethnic world where different cultural traditions
coexist. If divorce can deal with these elements then why should the law of nullity not
be abolished?
It has its roots in the Christian faith where divorce was forbidden; some people are still
very against divorce and are pleased that nullity is a legal option. Some have suggested
that the void category should remain, arguing that there is no real need for a decree
because the marriage never existed, but that the voidable category should go. The Law
Commission recommended the retention of voidable marriage on religious grounds,
but Cretney et al. have argued that voidable should be abolished and the church, for
which the law appears to exist, should govern its status. It is arguably outdated and
unnecessary today.
Question 2 This problem question requires a good grasp of how s.11 MCA works and
the case law which accompanies it. The issues you need to consider include the age of
Alice at the time of the wedding, the status of parental consent and the significance if
it is not obtained. What is the status of the Peace and the Purity Church? Is it licensed
under the Marriage Act 1994? It is on the tenth floor of an office block, so this is
unlikely. Even if it was licensed, should the wedding ceremony have been performed at
8.00 pm? It is not a Jewish or Quaker wedding. The church requires no formalities but
is this in accordance with English law? Are there open doors? And are there witnesses
to the wedding? The prescribed words of the marriage ceremony and the issuing
of a marriage certificate will not validate the marriage but may impact on whether
Alice and Bertram knew of the defect. Do the parties know they are contracting to a
marriage with knowledge of the defect? See R v Bham [1966], Gereis v Yacoub [1997] and
CAO v Bath [2000] to assist you in your advice to the parents as to the legality of the
union.
Question 3 This problem question requires a good grasp of how s.12 MCA works and
the case law which accompanies it. The issues for you to look at include the extent of
Annies parents insistence that Annie marry Bertie. Would the threat to cut her out
of her fathers will amount to duress? Look at Hirani v Hirani [1982], Szechter v Szechter
[1971] and Singh v Singh [1971]. If you go through a religious ceremony out of obedience
to your parents wishes and in deference to your religious faith, then the petition is
likely to be refused. It is important to ensure that this is not a forced marriage (see
Forced Marriage Act 2007).
Then you must consider the status of a wilful refusal to consummate a marriage.
Remember it is Annie and Bertie who agree not to have sexual intercourse. In the first
instance Annie would have to show that Berties wilful refusal to consummate the
wedding is her reason for petitioning the court. This is unlikely to succeed, because
while there is evidence that she has just excuse for her refusal to consummate,
whether it be for religious reasons or by agreement, the statute makes it clear that the
respondent must have wilfully refused to consummate. Annie is the petitioner and
Bertie is the respondent and he does not want the marriage annulled. As Bertie still
has not arranged the religious ceremony, she could argue that this is wilful refusal to
consummate. This may be successful under Kaur v Singh [1972]. Alternatively, Annie is
better off petitioning on the basis that she is incapable of consummating the marriage.
See Baxter v Baxter [1948]. Under this ground a marriage will be voidable if it has not
been consummated owing to the incapacity of either party. Annie could argue that
her incapacity is psychological, as in Singh v Singh [1971], since she has a psychological
abhorrence to Bertie. This could amount to invincible repugnance under G v G [1924].
The fact that she can have sexual intercourse with other men will not deny her under
this ground. Bertie could respond to the petition under s.13(1) and say there is a bar
Family Law 2 Marriage and civil partnerships page 29
under approbation. As Annie said she was going to make the best of her marriage
then Bertie may suggest Annie conducted herself in relation to Bertie so as to lead him
to believe that she would not try to annul the marriage. Of course, divorce is forbidden
to this religious group but should Bertie want grounds, then Annies adultery will
prove useful.
Question 4 It is important to realise that, given the relatively recent registration of
civil partnerships (it was not legally possible until December 2005) in this jurisdiction,
there is very little case law on this subject and so you will have to ensure you have
sufficient grasp of the statutory provisions.
Should Brian wish to seek an annulment of his civil partnership he must utilise ss.49
50 CPA. Under s.49(iii) it could be argued that the registration of the partnership failed
to comply with the requisite formalities because a church is a place of worship and in a
civil ceremony you are not permitted to sing religious songs (The Lord is my shepherd
is a popular hymn). There is also a question as to whether Brian and Maurice were free
to register their partnership in the first place? Brian lived with Victor but this places no
bar to registration. However under s.49(iv) it would appear that Maurice was already
married to Cara and so he was not legally allowed to register a civil partnership. The
fact that there has been no consummation of the partnership is irrelevant for these
purposes as this is not a ground, unlike in the MCA, for seeking an annulment. The final
concern which will invalidate both Brians partnership with Maurice and indeed his
marriage to Cara was that Maurice was born Monica and there is no suggestion that
he has obtained any form of gender recognition certificate under the GRA. This means
Maurice (being legally a woman) could NOT marry Cara (Corbett v Corbett) and without
any gender recognition certificate Maurice is unable to register a civil partnership with
Brian because the parties are not of the same sex for these purposes (see s.49(v) CPA).
page 30 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the relevant distinctions between void
and voidable marriages.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
2.1 The distinction between void and voidable marriages
2.2 The grounds for a void marriage
2.3 Voidable marriages
2.4 Effects of a nullity decree
2.5 Civil partnerships
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
3.1 The divorce process under the MCA 1973 . . . . . . . . . . . . . . . . .33
3.2 The background to the modern law . . . . . . . . . . . . . . . . . . . .34
3.3 The divorce facts under the MCA 1973 . . . . . . . . . . . . . . . . . .36
3.4 Conciliation and reconciliation . . . . . . . . . . . . . . . . . . . . . .43
3.5 Dissolution of civil partnerships . . . . . . . . . . . . . . . . . . . . . .47
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
3 Divorce and dissolution
page 32 University of London External System
Introduction
This chapter analyses the development of divorce law, the modern ground of
irretrievable breakdown of marriage and the five facts which the law recognises as
proving the existence of irretrievable breakdown. A petition for divorce will often be
combined with applications for financial provision for the spouse and the children and
with orders relating to the children of the marriage. These matters so often more
crucial than the award of the divorce decree itself will be discussed in later chapters.
Although the greater part of this chapter will be taken up with a discussion of the facts
of divorce and judicial interpretation of these facts, it should be remembered that
nowadays very few petitions are defended (less than three per cent of all divorces) and
that consequently since the 1970s few divorce cases have been reported. Further,
the law of divorce has been dominated by the special procedure, introduced in 1973,
which dispenses with a court hearing in all undefended cases.
Dissatisfaction with the law of divorce culminated in a number of proposals for
reform, which are discussed below. The Family Law Act 1996, after a protracted and
contentious passage through Parliament, finally received the Royal Assent in July 1996.
The major provisions of this Act are discussed below.
Despite this, the law on divorce remains in a state of despondency. On 19 June 1999,
the Lord Chancellor announced that, in the light of the unsuccessful piloting of
the new divorce legislation in s.8 of the Family Law Act 1996 (as discussed below),
the implementation of the new divorce provisions was to be delayed. This delay
continues! In order to understand fully the movement for reform, and to evaluate
the advantages and disadvantages of the reforms, it remains necessary to study the
current law and to appreciate its defects as well as looking at what could have been.
For this reason, much of this chapter is concerned with an analysis of the law under
the Matrimonial Causes Act 1973 (MCA). Despite significant attempts at reform, this is
the current law.
Like marriage, it is possible to end a civil partnership. Rather than an order for divorce
this is termed a dissolution order and is granted on the basis of much of the same
criteria as the divorce with one notable exception, which we will discuss later.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the principles underlying the law of divorce, both under the MCA and
the FLA
u describe the grounds for divorce under the MCA and the relationship between
the grounds for divorce and the facts which raise the presumption of the ground
u state the actual requirements of each fact: each fact comprises more than one
element and you should be able to discuss every aspect of each fact as revealed
by the case law
u discuss whether the issue of fault should remain part of the law of divorce and
the reasons for this
u outline the perceived defects in the current law and the need for reform
u discuss whether the suggestions for reform would have answered the criticisms
levelled at the current law
u say whether the suggested law reform places too much control in the hands of
the parties to the divorce, as opposed to the court
u give an opinion on whether the reformed law would have, in fact, made divorce
easier or more difficult, and whether this is desirable
u assess whether the reformed law would have encouraged or discouraged
divorce
u identify how a civil partnership can be dissolved and any apparent differences
between this law and the law of divorce.
Family Law 3 Divorce and dissolution page 33
Essential reading
Herring, Chapter 3, pp.93-138.
Masson et al., Chapter 10, pp.277-316 and Chapter 11, pp.317-324.
Probert, Chapter 4, pp.5976.
Standley, Chapter 7, pp.135-158.
Useful further reading
Masson, S. Marriage, divorce and the courts [2002] Fam Law 900.
Day Sclater, S. and C. Piper (eds) Undercurrents of Divorce. (Aldershot: Ashgate
1999) [ISBN 9781840147339].
Diduck, Chapter 3, pp. 4470.
Eekelaar, J. Family law keeping us on message [1999] CFLQ 387.
Eekelaar, J., M. Maclean and S. Beinart Family Lawyers: the divorce work of
solicitors. (Oxford: Hart Publishing, 2000) [ISBN 9781841131856].
Kay, Whose divorce is it anyway? the human rights aspect [2004] Fam Law 892.
Reece, H. Divorcing Responsibly. (Oxford: Hart, 2003) [ISBN 9781841132150].
Walker, J. [1991] Divorce Whose Fault? Is the Law Commission Getting it Right?
Fam Law 234.
3.1 The divorce process under the MCA 1973
Although the Family law syllabus expressly states that a knowledge of divorce
procedure is not required, a knowledge of divorce is incomplete without some
understanding of these procedures.
The special procedure (which, as Ormrod LJ pointed out in Day v Day [1980] Fam 29,
is the ordinary procedure in the majority of cases) requires the petitioner to lodge a
completed standard form of petition, together with an affidavit verifying the truth of
the answers to a standard form questionnaire. These documents are then considered
by a District Judge (formerly called a Registrar) in private and, if the District Judge is
satisfied that the petitioner has sufficiently proved the contents of the petition and
is entitled to a decree, he or she will make and file a certificate to that effect. The
presence of the parties and their representatives is unnecessary. There is no machinery
for investigating the truth of the allegations unless there are circumstances which give
rise to suspicion. District Judges have, furthermore, been urged not to take an overly
meticulous or overly technical approach. See ex parte Byers [1985] FLR 695.
The decree is then pronounced in open court, either by a Circuit Judge or a District
Judge.
A divorce petitioner must present the petition to the court, but this cannot be done
until the marriage has lasted for one year. The petition must allege that the marriage
has broken down irretrievably and the petitioner must satisfy the court of at least
one of the five facts evidencing breakdown. This is vital. See from Butterworth [1997]
2 FLR 336 that if a petition is defended, the judge still has an important role to play in
applying the law and should not grant a decree merely because the petitioner states
that the marriage has broken down. One of the five facts must be proved before a
decree can be granted.
If the petitioner proves such a fact then the court will grant the decree unless the
respondent satisfies the court that the marriage has not irretrievably broken down, or,
in the case of a petition based on the five-year living apart fact, that the decree should
be refused because it would produce hardship (as discussed later in this chapter).
Thereafter, matters of financial provision and with respect to any children will be
decided. In the first instance, a divorce decree will be a decree nisi
but
this amounted to no more than a decree of judicial separation and did not entitle the
parties to marry again. The only way to obtain a divorce which conferred the power to
remarry was to procure a private Act of Parliament. The first such Act was the Duke of
Norfolks Act in 1700; between 1700 and 1856, when judicial divorce superseded
Parliamentary divorce, 317 private Acts were obtained. They were expensive to procure
and their passage was often accompanied by much unwanted publicity. Very few
wives, moreover, ever had private Acts of Parliament passed in their favour.
The Matrimonial Causes Act 1857 set up a court that was empowered to grant
judicial decrees of divorce. From the beginning, divorce was based on the idea of
matrimonial fault and men and women were treated differently in the application of
the matrimonial fault doctrine to their relationships. Whereas a wifes adultery was
sufficient to entitle her husband to a decree, adultery by the husband was not by itself
a ground of divorce for the wife unless she could also prove some other misconduct
on his part.
3.2.1 Divorce reform
In the twentieth century, formal equality was established in the application of the
matrimonial offence doctrine: the Matrimonial Causes Act 1923 provided that wives as
well as husbands could sue solely on the basis of their partners infidelity. The grounds
for obtaining a divorce were also extended; the Matrimonial Causes Act 1937 added the
grounds of cruelty, desertion in excess of three years and incurable insanity (the last
of these grounds being significant in that it constituted the first example of no fault
divorce known to English law).
In
essence, it means that the party in desertion must have formed the intention to
live permanently apart from the other spouse. If that party is incapable of forming
the intention (for example, by reason of mental illness), then the petition will fail.
See Perry v Perry [1964] 1 WLR 91.
The impact of supervening insanity upon the law of desertion has been mitigated by
MCA s.2(4) which provides that:
the court may treat a period of desertion as having continued at a time when the
deserting party was incapable of continuing the necessary intention if the evidence
before the court is such that, had that party not been so incapable, the court would have
inferred that his desertion continued at that time.
Note that the section is concerned with supervening insanity; it does not affect a case
such as Perry v Perry where mental illness prevented the intention to desert from
arising.
u The separation must be without good cause. Desertion will not arise if there is a
good cause for the separation. Necessity, the commission of a matrimonial offence
by the petitioner or the physical or mental illness of either party may amount to
good cause for the respondent living apart from the petitioner: G v G [1964] P 133.
However, this defence to desertion will not avail the respondent if he or she has
indicated that he or she will never return to the petitioner even if a cure is found for
the illness.
A different type of good cause was considered by the Court of Appeal in Quoraishi v
Quoraishi [1985] FLR 780. The parties were married in Bangladesh under Islamic law. The
husband was permitted under Bangladeshi law to take a second wife. The wife firmly
opposed the husband taking another wife. Nevertheless, the husband contracted a
second marriage by proxy. The first wife left the husband. When the latter petitioned
for divorce on the ground of the first wifes desertion, the Court of Appeal held that
the husbands second marriage constituted good cause for his first wife to leave him.
Animus deserendi (Latin) =
intention to desert.
page 40 University of London External System
u The separation must occur without the consent of the other spouse. Consensual
separation cannot amount to desertion. Consent to separation may be withdrawn
at any time but the burden of proof that consent has been withdrawn rests upon
the party alleging it. See Fraser v Fraser [1969] 1 WLR 1787.
u Offer to return: desertion is an inchoate offence, incomplete until legal action
has commenced. It can be terminated at any time by the party in desertion,
demonstrating that his or her intention to desert has been superseded by making
an offer to return.
u Constructive desertion: before the Divorce Reform Act 1969 the courts had evolved
the doctrine of constructive desertion, whereby a party whose behaviour was so
unbearable that the other party left home is held guilty of constructive desertion.
The extent to which the doctrine of constructive desertion has survived the
enactment of the Divorce Reform Act is unclear. Most forms of expulsive conduct
will now constitute behaviour within s.1(2)(b). Where, however, one spouse orders
the other to leave and the other complies, it is possible that the case may still be
pleaded as one of constructive desertion. See Morgan v Morgan [1973] 117 SJ 223.
u The desertion must have elapsed for a continuous period of two years immediately
preceding the presentation of the petition. However, s.2(5) provides that, in
deciding this issue:
no account shall be taken of any one period (not exceeding six months) or of any two or
more periods (not exceeding six months in all) during which the parties resumed living
with each other, but no period during which the parties lived with each other shall count
as the period of desertion.
Nonetheless, it was still necessary to show an aggregate of two years desertion and
any period or periods of resumed cohabitation is deducted.
Activity 3.6
Consider the case of Le Brocq v Le Brocq [1964] 1 WLR 1085. What is the basis for this
decision?
3.3.4 Living apart for two years
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 (MCA s.1(2)(d))
This was the first of the so-called no fault divorce facts. Notice the following points
about this separation ground.
u The use of the verb consent: the original draft of the Divorce Reform Bill stated
that the respondent does not object to a divorce. The present wording requires
positive consent on the part of the respondent. Rules of the Court prescribe how
consent is to be obtained and the information that the respondent must be given
to enable him or her to reach his or her decision (see FPR 1991, Form M5, paragraph
5). A respondent may also consent conditionally (for example, on condition that he
does not have to pay the costs of the petition).
u Living apart involves both a physical and a mental element. Insofar as the former is
concerned, MCA s.2(6) provides a definition of living apart:
a husband and wife shall be treated as living apart unless they are living with each other in
the same household.
This means that a husband and wife will be regarded as living apart, even if they live
under the one roof, unless it can be said they are living in the same household. The cases
indicate that the courts ask whether there is any community of life between the parties.
This can be made out, even if they are on the worst of terms, if they are sharing any form
of domestic life.
Family Law 3 Divorce and dissolution page 41
Activity 3.7
Compare the cases of Mouncer v Mouncer [1972] 1 WLR 321 and Fuller v Fuller [1973] 1
WLR 730. What valid distinction can be drawn between these two cases?
In order to fulfil the required mental element, any separation must be accompanied
by a recognition on the part of at least one of the parties that the marriage is at an end.
Until that time, the parties may be apart, but they are not living apart. See Santos v
Santos [1972] Fam 247. This intention need not be communicated to the other party.
MCA s.10(1) provides that:
the court may, on an application made by the respondent at any time before the
decree is made absolute, rescind the decree if it is satisfied that the petitioner misled
the respondent (whether intentionally or unintentionally) about any matter which the
respondent took into account in deciding to give his consent.
The bar is discretionary; the court is not bound to rescind the decree if deception has
occurred. The court will ascertain whether this respondent was in fact misled, not
whether a reasonable respondent would have been deceived.
3.3.5 Living apart for five years
The parties to the marriage have lived apart for a continuous period of at least five years
immediately preceding the presentation of the petition (MCA s.1(2)(e)).
As with s.1(2)d this fact requires consideration of whether the requisite five years
physical and mental separation had been proven.
The differences between the living apart facts
There are two differences between the living apart facts:
u Where a decree is based on the two-year fact, the respondent must consent to the
decree being granted.
u Where a decree is founded solely on five years of living apart, the court may
withhold a decree in certain circumstances if it is satisfied that the dissolution of
the marriage would cause grave financial or other hardship to the respondent. This
bar, contained in s.5 MCA, was introduced essentially to protect the innocent wife,
but restrictive drafting and judicial interpretation of the provision has made it a
sparingly used provision. Section 5 provides that the court may dismiss a petition
based solely on the five-year living apart fact if two conditions are met. They are:
u that dissolution will result in grave financial or other hardship to the
respondent, which is defined as including the loss of the chance of acquiring
any benefit which the respondent might acquire if the marriage were not
dissolved
u that it would in all the circumstances be wrong to dissolve the marriage.
This hardship bar remains relevant under the Family Law Act 1996, where it will
operate to deny a divorce where hardship is established.
The following points have emerged from the case law on s.5 MCA.
u In considering financial hardship, for example loss of a pension upon divorce, the
court will consider whether alternative financial provision can be made for the
respondent. See Parker v Parker [1972] Fam 116 where the financial hardship which
would be incurred to the respondent wife by the loss of her pension entitlement
on divorce could be offset by the husband purchasing a deferred annuity or
insurance policy for the wifes benefit. See also Le Marchant v Le Marchant [1977] 1
WLR 559.
u The court will weigh up any financial hardship arising upon divorce against the
public policy of dissolving a marriage that has clearly broken down. See Mathias v
Mathias [1972] Fam 287.
page 42 University of London External System
u Grave financial hardship may be offset by a consideration of social security
entitlements available to the respondent. See Reiterbund v Reiterbund [1975] Fam
99.
u The most commonly pleaded grave other hardship (i.e. non-financial) has been a
religious objection to the granting of a divorce decree. There is no reported case
in which a divorce has been refused on account of such an objection. See Rukat v
Rukat [1975] Fam 63, Banik v Banik [1973] 1 WLR 860 and Banik v Banik (No.2) [1973] 117
SI 874.
Non-financial hardship of a non-religious nature was considered in Lee v Lee [1973] 616,
appeal allowed [1974] Fam Law 48.
u The hardship must be very important or very serious and it must result from
the divorce, not from the fact the marriage has broken down. See Reiterbund v
Reiterbund, but compare Jackson v Jackson [1993] Fam Law 675 in which a low-
income pensioner unsuccessfully attempted to rely on s.5.
See also Archer [1999] 1 FLR 327 where the Court of Appeal upheld the decision that the
loss to a wife of an income under the husbands pension scheme of about 11,000 p.a.,
were he to predecease her, was not grave in the light of the wifes overall assets of
about 500,000. Even though the husband, when he retired, would no longer be able
to afford to make maintenance payments to the wife, it would not be unusual for a
former spouse, on the hypothesis that the other former spouse had died, to use capital
to support herself in her declining years.
u In considering whether it would be wrong in all the circumstances to dissolve the
marriage, the court is directed to a number of matters, including the conduct of
the parties to the marriage. See Brickell v Brickell [1974] Fam 31.
They may also consider the interests of the parties to the marriage, the interests of any
children and of any other persons concerned.
Protection for respondents applying to both the living apart facts
Sections 10(2) and 10(3) apply where a divorce is sought under either of the separation
grounds. A respondent could apply to the court after the granting of a decree nisi
for consideration of his or her financial position after divorce. In such a case the
court must be satisfied that the financial provision made by the petitioner for the
respondent is reasonable and fair or the best that can be made in the circumstances.
The provision was enacted when the courts powers with respect to financial provision
on divorce were less extensive than they are now. The provision is now rarely invoked,
but may be useful in particular circumstances. See Garcia v Garcia [1992] 1 FLR 256.
Summary
The modern law of divorce is to be found in the Matrimonial Causes Act 1973. No
petition for divorce can be presented to the court within one year of marriage. The
sole ground for divorce is irretrievable breakdown and to establish this the petitioner
must prove one of the five facts. They must show that: there has been adultery by the
respondent; the respondent has behaved in such a way that they cannot be reasonably
be expected to live with the respondent; they have been deserted by the respondent;
they have been living apart from the respondent for a continuous period of two years
with consent; or that they have lived apart from the respondent for five years and have
not been able to seek the consent of the respondent. It is only necessary for the
petitioner to prove one of these five facts, but without proof of one of these five facts
there can be no irretrievable breakdown and therefore no divorce.
Go to your study pack
and read Men and women
behaving badly: is fault dead
in English law, by Andrew
Bainham.
This will help you consider
whether fault is now dead in
family law.
Family Law 3 Divorce and dissolution page 43
3.4 Conciliation and reconciliation
Among its other objectives, the Divorce Reform Act 1969 signalled an attempt to place
marriage guidance within the framework of divorce and to acquaint solicitors with
the various agencies working in this field. In addition to the provisions contained in
MCA 1973 s.2, s.6 included measures designed to encourage reconciliation. Section 6(1)
provided that a petitioners solicitor must file a certificate as to whether he or she had
discussed with the petitioner the possibility of reconciliation and given him or her the
names and addresses of persons qualified to help in this regard. It will be apparent
from the drafting of s.6(1) that its utility is confined to those cases where the petitioner
employs a solicitor. Section 6(2) provides that, if at any stage of the proceedings for
divorce it appears to the court that there is a reasonable possibility of a reconciliation
between the parties to a marriage, the court may adjourn the proceedings for such
period as it thinks fit to enable attempts to be made to effect such a reconciliation.
Court welfare officers can provide assistance in such cases.
These provisions have had little impact on the operation of divorce law, despite their
benevolent intentions. The FLA 1996 incorporates mediation into divorce procedure
(see below). The thrust of this Act was to facilitate agreements about the future to be
reached by the parties themselves during the period of reflection and consideration.
The courts will retain jurisdiction to approve agreements made and to make orders
where mediation has either failed or has been impossible to arrange.
A frequently voiced criticism of modern divorce law is that not only are provisions
for reconciliation ineffective, but there is no recognition of the important distinction
between conciliation and reconciliation. This distinction was articulated most clearly
by the 1974 Finer Committee report on one-parent families (Cmnd 5629) at paragraph
4.288:
By reconciliation we mean the reuniting of the spouses. By conciliation we mean
assisting the parties to deal with the consequences of the established breakdown of their
marriage, whether resulting in a divorce or a separation, by reaching agreements or giving
consent or reducing the area of conflict upon custody, support, access to and education
of the children, financial provision, the disposition of the matrimonial home, lawyers fees,
and every other matter arising from the breakdown which calls for a decision on future
arrangements.
You are not expected to have more than an outline knowledge of conciliation and
reconciliation as it relates to the law under the MCA; if you want to know more, Masson
et al. discuss this extensively. However, the FLA places mediation (or conciliation) at
the heart of the divorce process and you are encouraged at least to evaluate the
potential benefits, and any disadvantages, which mediation may have produced had
the new divorce process been implemented fully.
Self-assessment question
What is the distinction between reconciliation, conciliation and mediation?
3.4.1 The divorce reform proposals
In 1985 the Report of the Matrimonial Causes Procedure Committee (the Booth
Committee) stated that the bitterness and unhappiness of divorcing couples is
frequently exacerbated and prolonged by the fault element in divorce (paragraph
2.10). Nevertheless, although it made many suggestions for improving divorce
procedures, the Committee was not empowered by its mandate to propose
substantive reform.
Comments such as those of the Booth Committee led the Law Commission to review
the substantive law of divorce. In 1988, the Commission published Facing the Future,
a Discussion Paper on the Ground for Divorce (Law Com 170), which reviewed divorce
laws in various other jurisdictions and favoured, as the reform option, a process
over time whereby a party files a notice of intention to divorce and after a period of
time the divorce will be granted without the need to establish any particular fact
page 44 University of London External System
(provided that all outstanding matters relating to financial provision and children have
been resolved).
The Discussion Paper was followed in 1990 by Family Law: the Ground for Divorce
(Law Com 192), which canvassed the discussions generated by the Discussion Paper
and attached a draft bill. In December 1993 the Lord Chancellor issued his response
in Looking to the Future: Mediation and the Ground for Divorce and in 1995 issued
Looking to the Future: Mediation and the Ground for Divorce: the Governments
Proposals.
Activity 3.8
To what extent, if any, should fault remain relevant to divorce law?
The Family Law Act 1996: the divorce reform that never was
After this prolonged period of gestation and considerable political opposition, the
Family Law Act 1996 (FLA) received the Royal Assent in July 1996. Parts II and III of the
reformed law were due to come into effect in 1999, and Part IV of the Act, relating to
domestic violence, came into effect in 1997. However, Parts II and III were never fully
implemented for the reasons discussed below. Part I of the FLA (General Principles
underlying Parts II and III) is, confusingly, in force.
Is it worth noting that, whilst Part II of the FLA 1996 was never brought into force, Parts
I and III were for the purposes of divorce. It is useful to consider the contents of Part
II as it provides an indication of what might have been, which helps us to understand
what is and what is not feasible in divorce reform.
Under the unimplemented reforms, irretrievable breakdown of the marriage would
have remained the sole ground for divorce. Part I states the principles of the Act
(which are in force) namely that the institution of marriage is to be supported and
that parties to a marriage should take all steps practicable to save a marriage but
states that, where the marriage has irretrievably broken down, the marriage should be
ended:
u with the minimum distress to the parties and to the children affected
u with arrangements made in a manner which will promote a good continuing
relationship between the parties and any affected children
u without undue costs being incurred.
Courts are further directed by the Act to remove or diminish the risk of violence to
the parties to the marriage or affected children.
3.4.2 The procedure under the Family Law Act 1996
Either party, or both, may make a statement of breakdown which is proof of the
breakdown (s.5). The statement must conform to prescribed rules (ss.6 and 12).
Following the making of the statement, a period of reflection and consideration
must pass, that period being nine months following the 14th day of the receipt of
the statement by the court (s.7). The period of reflection and consideration may be
extended by the court, on the application of the other party, or may be stopped if both
of the parties give notice to the court that they require additional time in which to
attempt a reconciliation (s.7). Where there are children of the family under the age of
16, however, the period is extended to 15 months (s.7(11) and (13)).
The procedure to be followed and the time-scale for divorce is accordingly as follows.
Before the court may make a divorce order:
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
3.1 The divorce process under the MCA 1973
3.2 The background to the modern law
3.3 The divorce facts under the MCA 1973
3.4 Conciliation and reconciliation
3.5 Dissolution of civil partnerships
page 50 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
4.1 The criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
4.2 Injunctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
4.3 The Family Law Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . .60
4.4 Enforcement of orders . . . . . . . . . . . . . . . . . . . . . . . . . . .66
4.5 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . .69
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
4 Protection against domestic violence
page 52 University of London External System
Introduction
There has been, for the past 30 years, increased concern about violence in the family.
The legal procedures intended to provide a remedy in this context have proliferated
so that they have resulted in:
a hotchpotch of enactments of limited scope passed into law to meet specific situations
or to strengthen the powers of particular courts. Lord Scarman, Richards v Richards [1984]
AC 174, 206
The Law Commission attempted to meet this and other criticisms in Domestic
Violence and the Occupation of the Matrimonial Home (Law Com No. 207, 1992),
where it proposed a single set of remedies to be available in all courts that have the
power to deal with family cases. The Law Commissions proposals, and the subsequent
legislation contained in the FLA, were specifically confined to civil remedies. You
should be aware, however, of the criminal law in this context. You should also cross-
reference this topic with that of child protection, covered in later chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u discuss the role and effectiveness of the criminal law in domestic violence
u describe the differing jurisdictions under which court orders may be made
u explain the difference between the grounds for non-molestation orders and
ouster orders under the DVMPA and the DPMCA
u draw up a list of the persons who may apply under each of the Acts
u explain the duration of orders, particularly in relation to ouster orders
u state the definition of harassment under the DVMPA
u define the new tort of harassment under PHA
u consider the potential impact of the HRA on this area of law.
Essential reading
Herring, Chapter 6, pp. 258305.
Masson et al., Chapter 9, pp.241275.
Probert, Chapter 6, pp. 111127.
Standley, Chapter 6, pp. 109131.
Family law 4 Protection against domestic violence page 53
4.1 The criminal law
No spouse is entitled by reason of marriage to inflict violence on the other. See R v
Jackson [1891] 1 QB 671. In appropriate cases, therefore, a spouse may be prosecuted for
offences ranging from common assault to murder and a husband may also be
prosecuted for sexual offences against his wife. See R v R (Rape: Marital Exemption)
[1991] 4 All ER 481.
The criminal law, however, has proved ineffective in suppressing domestic violence.
There appear to be two main reasons for this:
u Procedural requirements which complicate the initiation of criminal proceedings,
but note DPP v Little [1992] Fam Law 377.
u The police are reluctant to bring charges in cases of domestic violence. There
appear to be a number of reasons for this. The battered woman may be unwilling
to go to court to give evidence against her aggressor. A wife may call in the police
for her immediate protection, but that does not necessarily mean that she will
provide evidence for further legal action against her husband. A wife can be
compelled to give evidence against her husband under s.80 of the Police and
Criminal Evidence Act 1984 as qualified by the Youth Justice and Criminal Evidence
Act 1999, but the evidence of a spouse who is testifying reluctantly will often
appear to lack cogency.
The police have also traditionally regarded domestic violence as belonging to the
private sphere of family life and unsuitable for law enforcement.
While insensitive
interference by the police is obviously to be deplored, the reluctance of police to
prosecute wife batterers has been criticised. A number of senior officers, including the
former Metropolitan Police Commissioner, Sir Ian Blair, have now indicated that official
policy favours the vigorous prosecution of cases of domestic violence and the Home
Office has issued a number of circulars emphasising the importance of appropriate
policing in family violence cases.
4.1.1 Matrimonial relief
Where the parties are married, divorce may be the most appropriate response to a
violent spouse. If spouses wish to separate, but not divorce, they may take advantage
of the decree of judicial separation (see below). Such a decree entitles the petitioner
to live apart from the respondent, but does not entitle either party to remarry. This
was a remedy of some significance when divorce could only be obtained upon proof
of a limited number of matrimonial offences. With the widening of the facts for
divorce and the reduction of the period to one year during which divorce could not be
obtained, the decree of judicial separation has declined in popularity.
MCA s.17 governs the award of decrees of judicial separation
An exclusion order is
an order requiring the
respondent either to leave
the matrimonial home (see
s.16(3)) or to refrain from
entering the matrimonial
home.
Family law 4 Protection against domestic violence page 57
4.2.3 Supreme Court Act 1981
General powers of injunction
The Supreme Court Act 1981 (not repealed by the Family Law Act 1996) consolidating
earlier legislation and effectively supplanting what used to be the inherent
jurisdiction of the High Court (Richards v Richards), gives a general power to the court
to grant an injunction in all cases in which it appears just and convenient to do so on
such terms and conditions as the court thinks fit.
Self-assessment questions
1. What is an ex parte order?
2. What do you understand by the term inherent jurisdiction?
County courts enjoy an equivalent jurisdiction, derived entirely from statute, s.3 Courts
and Legal Services Act 1990.
Limitations
The scope for using injunctions under the Supreme Court Act 1981 is subject to limitations.
u Richards v Richards makes it clear that if a married person requires an injunction to
regulate occupation of the family home, he or she must proceed under the MHA.
u The power of the court to grant an injunction may only be exercised where there
are substantive proceedings in progress (or about to be initiated) to which the
injunction sought is ancillary or where the injunction sought is within the scope
of the remedy sought in the main proceedings. This will be satisfied if there
are matrimonial proceedings (other than those under s.27 MCA), proceedings
under the Children Act 1989 with respect to the residence of a child, wardship
proceedings or proceedings in tort for damages for assault.
u There must be a sufficient link between the substantive proceedings and the
injunction. See Des Salles Depiniox v Des Salles Depiniox [1967] 1 WLR 553 where an
order to vacate the matrimonial home could not be made in proceedings founded
on neglect to maintain, as the injunction would have no effect on the husbands
ability to discharge the obligation.
u An injunction will only be granted in support of a recognised legal or equitable
right. You should note that this is the most important restriction on the jurisdiction
and the question of whether there is the necessary legal or equitable right in the
claimant is one of considerable difficulty. This restriction has proved problematic
where claimants, without proprietary interest, seek to oust defendants from the
former shared home. See Ainsbury v Millington [1986] 1 FLR 331, M v M [1988] 1 FLR 225
and Lucas v Lucas [1992] 2 FLR 53.
However, there is some authority which suggests that there is jurisdiction to oust
where this is in the interests and the welfare of children, even where such eviction is
not in support of a sole legal right. See Wilde v Wilde [1988] 2 FLR 83 and C v K [1996] 2
FLR 506. This approach was criticised in Gibson v Austin.
This restriction could create difficulties for an ex-spouse who is not the sole owner
of the matrimonial home and who wishes to oust his or her former spouse after
decree absolute. However courts have sometimes allowed such orders in certain
circumstances (see Webb v Webb [1986] 1 FLR 510), particularly where it is necessary to
protect the children (see Quinn v Quinn [1983] 4 FLR 394).
Difficulties were also faced by an ex-cohabitant without a sole legal right who is, in
effect, without remedy. This difficulty has now been addressed by the FLA 1996.
The jurisdiction can also be used for non-molestation orders. Here again, the
injunction must be in support of an existing legal right. See Patel v Patel [1988] 2
FLR 179, Tabone v Seguna [1986] 1 FLR 591 and Bumett v George [1992] 1 FLR 525. Note,
however, that the FLA extends the range of eligible applicants.
page 58 University of London External System
Enforcement
Section 2 of the DVMPA provided that a power of arrest could be attached to an
injunction which contained a provision that:
u restrains the other party to the marriage from using violence against the applicant
u restrains the other party from violence against a child living with the applicant
u excludes the perpetrator from the matrimonial home or from a specified area in
which the matrimonial home is included where the judge is satisfied that: the
other party has caused actual bodily harm to the applicant or... to the child... and
considers that he is likely to do so again.
This section now only applies to injunctions issued under the Supreme Court and
County Courts Acts and, arguably, those issued under the MHA. There is no power to
attach an arrest power if the injunction does not meet the requirements of s.2 DVMPA
1976 as amendeded by s.63 FLA. See Re G [1982] 4 FLR 538 and White v White [1983] Fam
54. Injunctive relief granted under the FLA has a different method of enforcement.
Bodily harm for these purposes includes real psychological harm. See Kendrick v
Kendrick [1990] 2 FLR 107. The attachment of a power of arrest is not routine. See Lewis
v Lewis [1978] 1 All ER 729. It is also normally subject to a three-month time limit. See
Practice Direction [1981] 1 All ER 224.
Note that the FPR 1991 ss.3, 9(6) and (7) required a copy of the injunction to be
delivered to the officer in charge of the police station for the applicants address. This
has now been repealed and replaced by s.47 FLA.
Activity 4.4
a. What practical value does a power of arrest have?
b. Should powers of arrest routinely be attached to orders?
Breach of an order is a contempt of court which may be punished by committal to
prison for a fixed term of up to two years. See George v George [1986] Fam Law 294 and
Miller v Juby [1991] Fam Law 97.
4.2.4 Personal protection and exclusion orders under the Domestic
Proceedings and Magistrates Courts Act 1978 (DPMCA)
This Act was repealed and replaced by the Family Law Act 1996. For many years
magistrates have been empowered with a jurisdiction to protect married women
from physical assault by their husbands. The Matrimonial Causes Act 1878 introduced
the concept of the non-cohabitation order whereby magistrates could decree that a
woman was no longer bound to cohabit with her husband. Such orders were, however,
of limited use since, although they entitled a wife to live apart from her husband, he
could not be excluded from the home.
In its report on Matrimonial Proceedings in Magistrates Courts (Law Com No. 77),
the Law Commission recognised this limitation, proposing both the abolition of
the non-cohabitation order and its replacement by two new types of order: the
personal protection order and the exclusion order. These proposals, although not the
terminology suggested by the Law Commission, were implemented by the DPMCA. A
personal protection order is an order that the respondent shall not use, or threaten to
use, violence against the person of the applicant or against the person of a child of the
family (s.16(2) DPMCA). The applicant must prove that:
u the respondent had used or threatened to use violence against the person of the
applicant or a child of the family
u it is necessary for the protection of the applicant (or a child of the family) that an
order be made.
Family law 4 Protection against domestic violence page 59
The court must be satisfied that:
u the respondent has used violence against the person of the applicant or a child of
the family
u the respondent has threatened to use violence against the person of the applicant
or a child of the family and has used violence against some other person
u the respondent has, in contravention of a personal protection order, threatened
violence against the person of the applicant or a child of the family.
In all three cases it must be shown that the applicant or child of the family is in danger
of being physically injured by the respondent (or would be in such danger if the
applicant or child were to enter the matrimonial home).
Note the following points in connection with these orders:
u The provisions applied only to parties to a marriage. They do not extend to
cohabitees.
u A power of arrest could be attached to the order if the respondent has physically
injured the applicant or a child of the family and the court considers that he
is likely to do so again (DPMCA s.18(1)). These were not routinely attached and
magistrates had to give their reasons for attaching such a power. See Widdowson
v Widdowson [1982] 4 FLR 121. If no power of arrest is attached, the applicant may
apply for a warrant for the arrest of a respondent alleged to have disobeyed an
order (ss.18(4) and (5)). The respondent may be fined or imprisoned.
u Violence, or the threat of violence, is an essential prerequisite to the making of a
personal protection order. The DPMCA was not intended to supply remedies for
psychological harm, or for tension or friction not leading to threats of violence.
u References in s.16(2) to a child were references to a child of the family, as
defined in MCA s.52 and DPMCA s.88 (see Chapter 7). Compare s.1 DVMPA where this
restrictive definition of child does not apply.
u Actual violence was an essential prerequisite for an exclusion order. In practice,
this meant that under the DPMCA no exclusion order could be made against a
husband who indulges in antisocial conduct that falls short of violence. See Horner
v Horner [1982] Fam 90. The threat of physical violence need not be immediate,
however. See McCartney v McCartney [1981] Fam 59.
4.2.5 Reform
In Richards v Richards Lord Scarman criticised the confusing array of injunctive
remedies available in the context of domestic violence. He stated that:
the sooner the range, scope and effect of these powers are rationalised into a coherent
and comprehensive body of statute law, the better.
You should note that not only are the powers confusing, but they also leave certain
individuals (such as those who live together with no element of conjugality friends,
etc. who simply share accommodation former cohabitants or lovers living apart)
with no remedy and fail to provide an adequate regime to regulate the occupation of
the shared home of cohabitants.
Comprehensive reform was proposed by the Law Commission in its draft Family
Homes and Domestic Violence Bill (Law Com No. 207, 1992). In short, the Bill proposed
that non-molestation orders should be available to anyone associated by virtue
of a family or similar relationship, which all courts would have the power to make
whenever it is just and reasonable to do so, having regard to all the circumstances,
including the need to secure the health, safety and well-being of the applicant or any
relevant child. Such orders would be available whether or not there had been physical
violence.
page 60 University of London External System
Courts would also be empowered to make occupation orders. These would be
available to all applicants against anyone with whom they are associated by virtue
of a family or similar relationship, where the applicant is entitled to occupy property
by virtue of a beneficial interest, contract or statutory right. This includes, under the
MHA, a right which would be extended to cohabitants if the property has been the
home of both parties at any stage. Where the applicant is not so entitled, he or she
would be able to obtain such an order against a spouse, former spouse, cohabitant
or former cohabitant. The criteria for such orders, which all courts would be
empowered to grant, would be uniform, although it is envisaged that the Magistrates
Court would decline jurisdiction or transfer the case to a county court if the
determination of the right of the party to occupy was in issue. Enforcement powers,
including the attachment of an arrest power, would be strengthened and the police
would be empowered to apply for a civil remedy on behalf of the victim in certain
circumstances.
Summary
There has long been concern that the remedies available to those who suffer
from domestic violence are ineffective and variable. This demonstrates the laws
ambivalence to the issue. The criminal law offers protection (as in other cases of
violence) and the marital exemption to rape no longer applies. The injunctions
described were a popular equitable remedy used, at the discretion of the court, to
protect the victims of domestic violence from further abuse. The Matrimonial Homes
Act 1983 dealt with the injunction, known as an ouster order, which ousted the violent
abuser from the home. The Domestic Violence and Matrimonial Proceedings Act 1976
provided for an injunction known as a non-molestation order. The court had a general
power to issue an injunction by reference to the Supreme Court Act 1981. Personal
protection was available under the Domestic Proceedings and Magistrates Courts Act
1978. After such a wide variety of injunctions and rememdies the Family Law Act 1996
repealed and replaced the 1983, 1976 and 1978 legislation and consolidated it into one
piece of legislation. The general power under the Supreme Court Act 1981 remains.
4.3 The Family Law Act 1996
Part IV of the Act, which relates to domestic violence and occupation of the
matrimonial home, came into force in 1997. You do also need to know the old case law
to see how judicial attitudes have changed or not to the issue of domestic violence.
Most, if not all, of the Law Commissions recommendations (discussed above) were
enacted into law. Most significant among those recommendations that were excluded
were the right of the police to intervene and pursue civil remedies on behalf of
domestic violence victims and the incorporation of same-sex relationships within
the scheme of protection relating to ouster orders (although the latter may be
deemed to be included see further below). Part IV of the FLA regulates occupation
rights in the matrimonial home and extends protection of such rights to present and
former cohabitants living together as husband and wife. Part IV also regulates non-
molestation and ouster orders. The MHA has been repealed, as have ss.1618 of the
DPMCA and the entire DVMPA.
The FLA thus provides a single comprehensive scheme for protection against
violence and disputes concerning the occupation of the matrimonial home. The Act
distinguishes between applicants who have an estate or interest in a dwelling house
(s.33), former spouses with no such existing right to occupy the dwelling house (s.35)
and spouses neither of whom has an entitlement to occupy a dwelling house which
is or was the matrimonial home (s.37). The Act also makes specific provision for
cohabitants or former cohabitants with no existing right to occupy (s.36) and those
cohabitants neither of whom is entitled to occupy (s.38). The Domestic Violence,
Crime and Victims Bill broadens this definition of cohabitants in s.62 FLA 1996 to
include two persons who, although not married to each other, are living together as
husband and wife or (if same sex) in an equivalent relationship.
Family law 4 Protection against domestic violence page 61
4.3.1 FLA Section 33
Applicants with estate or interest or matrimonial home rights
Where a person has an entitlement to occupy a dwelling house or has matrimonial
home rights, the court may by order:
u enforce the applicants entitlement to remain in occupation
u require the respondent to permit the applicant to enter and remain
u regulate the occupation rights of either or both parties
u suspend, prohibit or restrict the exercise of the respondents right to occupy
u restrict or terminate the respondents matrimonial home rights
u require the respondent to leave the dwelling house or part thereof
u exclude the respondent from a defined area in which the dwelling house is
included.
Orders granted under this section cease upon the termination of the marriage or by
the death of the other spouse. The court is required to consider all the circumstances
of the case, including:
u the housing needs and resources of the parties and any children
u the financial resources of the parties
u the likely effect of any order on the health, safety or well-being of the parties and
any relevant children and the conduct of the parties in relation to each other and
otherwise.
Sub-section 7 specifically directs the court to consider whether or not the applicant or
any relevant child is likely to suffer significant harm if an order is not made. If the court
feels that significant harm will be suffered, it must make an order unless it appears to
the court that the respondent or any relevant child is likely to suffer significant harm
if the order is made, and that the harm likely to be suffered by the respondent is likely
to be greater than, or as great as, the harm which is attributable to the respondents
conduct which is likely to be suffered by the applicant or any relevant child if the order
is denied. This will require the court to enter into a careful analysis of the respective
harms alleged by both applicant and respondent.
4.3.2 Occupation orders in practice case law
There has been extensive case law since the enactment of the FLA.
In the case of B v B [1999] 1 FLR 715 the Court of Appeal allowed an appeal by a husband
against the county court judges decision to grant an occupation order to the wife.
The wife, joint tenant with her husband, had left the home because of the husbands
violent behaviour, taking their baby with her. The husband was looking after his
six-year-old son from a previous relationship. The Court of Appeal concluded that the
son was likely to suffer harm if the order were made and that his needs at present
outweighed those of the couples baby, particularly because the local authoritys duty
to the husband and son would be only temporary at best, whereas its duty to the wife
and baby would be to rehouse them.
The Court of Appeal in Chalmers v Johns [1999] 1 FLR 392 continued the pre-Act
approach to ouster orders, counselling caution in:
u making occupation and exclusion orders which overrode proprietary rights at the
interlocutory stage of proceedings
u ousting those with proprietary rights other than when the balance of harm test
applied in the applicants favour.
page 62 University of London External System
What s.33 FLA provides is that a court may make any s.33(3) order without the balance
of harm needing to come into operation, but shall make a s.33(3) order (which need
not amount to an ouster) if the balance of harm does operate.
This was recognised by the Court of Appeal in Gripton v Gripton 15/7/99 (Unreported) in
which the wifes account of two assaults upon her by the husband was accepted by the
judge, who also took account of the likely effect of any order, or any decision not to
exercise his powers, on the health, safety and well-being of the wife and her children.
The husband appealed, on the ground that the judge had wrongly included the notion
of significant harm in s.33(7). In dismissing the husbands appeal, the Court of Appeal
referred to the impeccable exercise of judicial discretion.
In Banks v Banks [1999] 1 FLR 726 the wife was a threat to her husband as a result of her
verbal and physical aggression but because of her mental condition, making an order
to evict her was likely to cause her greater harm than allowing her to remain would do
to her husband.
Re Y (children) (Occupation Order) [2000] 2 FCR 470 considered a number of issues.
Unusually, an occupation order had been made in favour of the husband in that, in the
light of his health and disability, the balance (s.33(7)) went in his favour. On appeal,
it was held that there was no evidence that harm was attributable to the wife, as
is required by s.33(7). The exercise of discretion under s.33(6) to evict a co-owner of
a matrimonial home was a draconian remedy which was to be used as a last resort.
It was not an order to be made lightly. The issue should have turned not on eviction
but upon whether the home was capable of being divided so as to accommodate the
parties, together with cross-undertakings.
See G v G (Occupation Order: Conduct) [2000] 2 FLR 36 on the relationship between
ss.33(7) and 33(6). On an application for an occupation order under s.33, if the court
found that the applicant or any relevant child was likely to suffer significant harm
attributable to the conduct of the respondent, the court was required to make an
occupation order under s.33(7) unless the harm which would be suffered if the order
was made was greater than the harm which would follow if it was not. Even if an order
under s.33(7) was not mandatory, an occupation order could nonetheless be made in
the exercise of the courts discretion under s.33(6), in the light of the factors set out
in s.33(6). In considering, for the purposes of s.33(7), whether any harm likely to be
suffered by the applicant or any relevant child was attributable to the conduct of the
respondent, the important factor was the effect of the conduct upon the applicant or
the children, rather than the intention of the respondent. Lack of intent might be a
relevant consideration, but of itself it did not mean that any such harm could not be
attributed to the respondents conduct.
Activity 4.5
Do you think these decisions suggest a growing prevalence of the rights of the
victim over the historic deference to the proprietary rights of the abuser? Do you
think such a move would be desirable?
4.3.3 FLA Section 35
Former spouse with no existing right to occupy
The disentitled former spouse may apply to the court for an order giving the applicant
the right not to be evicted or excluded from the dwelling house or any part of it by
the respondent for a specified period and may prohibit the respondent from evicting
or excluding the applicant during that period. If the applicant is not in occupation, an
order may be made giving the applicant the right to enter and occupy for a specified
period. An order may also:
u regulate the occupation of either of the parties
u prohibit, suspend or restrict the exercise by the respondent to occupy
u require the respondent to leave all or part of the dwelling house
Family law 4 Protection against domestic violence page 63
u exclude the respondent from a defined area in which the dwelling house is
included.
Here again the court is directed to consider all the circumstances under s.33 and must
also consider:
u the length of time that has elapsed since the parties have ceased to live together
u the length of time since the marriage was dissolved or annulled
u whether there are pending proceedings under the MCA relating to property
adjustment orders
u applications under the Children Act 1989 for property provision for a child
u pending proceedings relating to the legal or beneficial ownership of the dwelling
house.
The court must also, as under s.33, consider the issue of harm suffered and likely to
be suffered as a result of making an order. Orders under this section are limited to
a specified period not exceeding six months, but may be extended on one or more
occasions for a further period not exceeding six months.
4.3.4 FLA Section 36
One cohabitant or former cohabitant with no existing right to occupy
Equivalent provisions to those under s.35 are available to cohabitants. The court is
directed to consider all the circumstances, including:
u housing needs and resources, financial resources, the effect of any order, the
conduct of the parties and also the nature of the parties relationship
u the length of time they have lived together as husband and wife
u whether there are or have been any children for whom both parties have or had
parental responsibility
u the length of time which has elapsed since the parties ceased living together
pending proceedings.
Again, the issue of harm must be considered as well as a balance of the harms which
may be caused to either applicant or respondent through the making of an order.
Unlike s.35 orders, an order under s.36 lasts for six months and may only be extended
once for a further six-month period.
4.3.5 FLA Section 37
Neither spouse entitled to occupy
Either party may apply for an order under this section and the court has power to:
u require the applicant to enter and remain
u regulate the occupation of the dwelling house by either or both parties
u require the respondent to leave
u exclude the respondent from a defined area in which the dwelling house is
included.
An order under this section may last for six months and may be extended on
one or more occasions for a further period not exceeding six months. The same
considerations apply as to applicants under s.33 in relation to what the court must
take into consideration.
page 64 University of London External System
4.3.6 FLA Section 38
Neither cohabitant or former cohabitant entitled to occupy
The same provision is made for disentitled cohabitants. The only difference in this
regard is the number of extensions to the order, which is limited to one. Both ss.36
and 38 do require the court to consider the balance of harm test, but it also retains
its discretion whether or not to exercise its power to, for example, require the
respondent to leave the dwelling house. In the cases of spouses or former spouses,
however, (even when neither is entitled to occupy) the balance of harm in favour of
the applicant obliges the court to exercise at least one of its regulatory powers.
4.3.7 Supplementary provisions (s.40)
Section 40 provides that, where an order is made under ss.33, 35 or 36, the court may
impose conditions:
u as to the repair and maintenance of the home or to the discharge of any mortgage or
other outgoings
u to order the occupying party to make periodic payments to the other party
u to grant either party possession or use of furniture or other contents
u to order either party to take reasonable care of any furniture or other contents
u to order either party to take reasonable steps to keep the home and contents secure.
If the parties are cohabitants or former cohabitants, the court is directed under s.41 to
have regard, when considering the nature of the parties relationship, to the fact that
they have not given each other the commitment involved in marriage.
4.3.8 Personal protection: non-molestation orders under the FLA (s.42)
Consistent with the Law Commissions wish to see the class of eligible applicants
extended, s.42 introduces the concept of an associated person. An associated person is
defined in s.62(3)(6), and includes:
u present and former spouses
u civil partners, or former civil partners
u present and former cohabitants (opposite sex or same sex)
u those who live or have lived within the same household other than as the others
employee, tenant, lodger or boarder (this is the provision which may extend to same-
sex relationships)
u relatives
u engaged or formerly engaged couples
u parties to a civil partnership agreement
u persons who have, or have had, an intimate personal relationship with each other
which is or was of significant duration
u parents of a child or those having parental responsibility for a child
u parties to the same family proceedings (other than those under this part of the Act).
As under the DVMPA, the FLA uses the terms molestation and non-molestation
order. The courts previous interpretation of the term molestation will thus remain of
importance since the Act does not define the term.
A non-molestation order may be made for a specified period or until further order. A
child may apply for a non-molestation order or for an occupation order but only with the
leave of the court, which will continue to employ the tests of sufficient understanding to
make the proposed application. (See s.43 on sufficient understanding. Also see Chapters
1112 of this subject guide.)
Family law 4 Protection against domestic violence page 65
4.3.9 Non-molestation orders in practice case law
Again, since the FLAs introduction, there have been a number of cases dealing with
specific issues.
The President of the Family Division in C v C [1998] 1 FLR 554 stated that molestation
had to involve some element of deliberate conduct causing clear harassment to such a
degree that the courts intervention was necessary. The ex-wifes conduct in procuring
the publication in newspapers of her (and two former wives) relationship with her
ex-husband was an invasion of privacy but was not molestation.
In Banks v Banks (see 4.3.2 above), the husbands application for a non-molestation
order was refused as the wifes behaviour towards her husband was a symptom of her
mental condition and, as she could not exercise control of those actions, an order
would serve no useful purpose.
Two cases considered the definition and relevance of associated persons. In Chechi v
Bashier [1999] 2 FLR 489 the parties were associated but the nature of the proceedings
(predominantly tortious) meant that separate family proceedings under the FLA were
not appropriate. In G v F [2000] 2 FLR 533 the applicant had said strictly speaking, we
do not live together; the parties divided their time between each others flats. At first
instance, it was held that they were not associated persons. On appeal it was held that
the court should give the non-molestation order provisions a purposive construction
and not decline jurisdiction, unless the facts of the case were plainly incapable of
being brought within the statute. Since Part IV of the 1996 Act was designed to provide
swift and accessible protective remedies to persons of either sex who were the victims
of domestic violence, where the criteria laid down in s.62 were met, s.62(3) should not
be narrowly construed so as to exclude borderline cases.
Activity 4.6
Two men, Alistair and Tony, were in a relationship for five years but had never lived
together. If Alistair became violent in the relationship could Tony apply for a non-
molestation order under s.42?
Jurisdiction
Orders under Part IV may be made by the High Court, county court or a magistrates
court. The Lord Chancellor may specify circumstances in which particular proceedings
may be commenced in a specified court, and for transfers of cases between courts
(s.57).
Undertakings
Where the court has jurisdiction to make an occupation order or non-molestation
order, the court may accept an undertaking from any party to the proceedings. The
court shall not accept an undertaking, however, where apart from the section (s.46), a
power of arrest would be attached to the order. An undertaking is enforceable as if it
were an order of the court.
Injunctive relief available under the Protection from Harassment Act 1997
Some people were not protected by the old provisions and would not be protected
under the 1996 Act, as in the case of Khorasandjian v Bush [1993] 3 All ER 669. This
case added to the well-documented concerns about stalking (see Masson et al., pp.
23435) and the inability of the law of tort to find a tort of harassment. Therefore the
Protection from Harassment Act 1997 (PHA) creates a new tort of harassment (see
discussion in Khorasandjian v Bush). This means that an injunction can be sought if
there is an actual or anticipated breach under s.1. Under this section three elements
must all be proved.
u The defendant must have harassed the victim.
u The offence can only be committed where there is a course of conduct which must
involve conduct on at least two occasions.
page 66 University of London External System
u It must be demonstrated that the defendant ought to have known that their
conduct constituted harassment.
Defences are available (s.1(3)).
So far there has been limited use of this form of relief,
but see Lau v DPP [2000] 1 FLR 799.
Summary
Part IV of the Family Law Act 1996 consolidated the previous legislation and came into
force in 1997. The ouster order, as was, is now the occupation order and the criteria for
it being granted by the court is governed by ss.33, 3538 and 40 of the Act. The
non-molestation order remains and the criteria for this is governed by s.42. Molestation
is once again not defined, so reference to previous case law under the old legislation is
required. If someone falls outside the scope of the FLA then they may be able to rely on
injunctive relief from the Protection from Harassment Act 1997.
4.4 Enforcement of orders
4.4.1 Power of arrest
If an occupation or non-molestation order is made, and it appears to the court that the
respondent has used or threatened to use violence against the applicant or a relevant
child (as defined by s.62(2)), the court must attach a power of arrest unless the court is:
satisfied that in all the circumstances of the case the applicant or child will be adequately
protected without such a power of arrest. (s.47)
In the case where an ex parte order has been granted under s.45, the court may attach a
power of arrest if it appears to the court that the respondent has used violence against
the applicant or child and that there is a significant risk of harm to the applicant or the
child attributable to the conduct of the respondent.
Although the courts have wanted to send out a clear message that domestic violence
is not to be tolerated they have still demonstrated a willingness to keep sentences
awarded for contempt low if the sentences were deemed to be manifestly excessive.
Following three breaches of a non-molestation order under s.42 FLA in Head v Orrow
[2005] 2 FLR 329, a sentence of 12 months was reduced to nine months. But in Robinson
v Murray [2006] 1 FLR 365 the Court of Appeal offered an alternative strategy where
they suggested that if the defendants actions warranted a sentence at the top end
of the range (in this case there had been three breaches of non-molestation and
occupation orders) then it may be wise to bring proceedings under the Protection
from Harassment Act 1997.
In an attempt to be seen to be taking domestic violence more seriously moves have
been taken to beef up the enforcement of non-molestation orders and on 1 July
2007 SI 2007/1845 came into force which means that a breach of a non-molestation
order without reasonable excuse is a criminal offence punishable by up to five years
imprisonment. It is no longer possible to attach a power of arrest to a non-molestation
order. It is now an automatically arrestable offence under s.24(1) Police and Criminal
Evidence Act 1984.
4.4.2 Compensation
A victim of family violence may also be able to seek financial compensation from
the Criminal Injuries Compensation Board. When the criminal injuries scheme was
instituted in 1964, such cases were excluded from the operation of the scheme.
Although the bar on family applicants was removed in 1979, in practice informal rules
operated by the Board serve to limit the number of successful claims. One such rule
is that the victim and offender must no longer be living together, a rule designed to
minimise collusion and to prevent the aggressor benefiting from an award to the
victim. Another rule is that an award may be refused or reduced:
Go to your study pack and
read Domestic violence,
mens groups and the
equivalence argument by
Felicity Kaganas.
Think about how domestic
violence is often thought
to be a gender specific
problem (men being
violent to women); how far
does Kaganas explore and
challenge any suggestion
that it is in fact a gender
neutral problem (women
being violent to men as well
as men being violent towards
women).
Family law 4 Protection against domestic violence page 67
having regard to the conduct of the applicant before, during or after the events giving rise
to the claim, or to his character and way of life.
A claim might be defeated under this heading where the Board considers that the
violence was provoked by the victim. (Compensation is also available in criminal
actions and in a civil action.)
4.4.3 Rehousing
Many battered women do not want to be reinstated in their former matrimonial
homes and look for rehousing in the public sector by local authorities or housing
associations. The enactment of the Housing Act 1980 and the Housing Act 1985 (now
the Housing Act 1996) conferred upon tenants of local authorities secure tenancy
status (i.e. rights which in some respects resembled those enjoyed by private tenants
under the Rent Acts). Authorities can no longer flexibly switch tenancies to provide
an immediate remedy in cases of violence. Violent husbands can be excluded from
council accommodation by exclusion orders (discussed above) and tenancies can
be transferred upon divorce under s.53 FLA, but these are procedures which must be
initiated by the victim and not by the local authority. Note that the FLA extended the
courts powers to transfer tenancies.
Any woman who has been forced to leave home, whether or not rented from the local
authority, may decide to apply to the authority as a homeless person for rehousing.
The Housing (Homeless Persons) Act 1977 imposed obligations upon local authorities
to rehouse certain classes of applicant. These duties are now contained in Part VII
Housing Act 1996. An applicant for rehousing must satisfy certain criteria.
u She must be homeless or threatened with homelessness (i.e. likely to become
homeless within 28 days). In deciding whether she is homeless, the local authority
must consider whether she would be at risk of violence if she returned home. See R
v Broxbourne BC ex parte Willmoth (The Times, 18 April 1989).
Some local authorities have argued that a woman staying at a refuge for battered
women is not homeless since she has the roof of the refuge over her head. This
argument was decisively rejected in R v Ealing LBC ex parte Sidhu (The Times, 26 January
1982).
u The applicant for rehousing must have a priority need.
Section 175 of the Housing Act 1996 sets out the categories of priority need, three of
which are relevant in the present context.
u A pregnant woman.
u A woman who has dependent children residing with her or who might
reasonably be expected to reside with her.
In R v Ealing LBC ex parte Sidhu, Hodgson J disapproved of the practice, prevalent
in some local authorities, of requiring battered women to obtain custody orders
before treating them as having a priority need.
u A woman who is vulnerable as a result of old age, mental illness or handicap or
physical disability or other special reason.
The Code of Guidance, published by the government and intended to be used
by local authorities as an aid to construing the Act, recommends that battered
women who do not fall within the other categories of priority need (i.e. are not
pregnant and do not have dependent children) should be treated as vulnerable for
the purposes of the Act.
u The applicant must not be intentionally homeless (HA 1985 s.60). The case law on
intentional homelessness is vast, but for present purposes it is enough to refer to
the practice of some local authorities of classifying victims of domestic violence
as intentionally homeless if they do not apply for an order excluding their violent
partner from the home.
page 68 University of London External System
In Warwick v Warwick (1982) Fam Law 60 the Court of Appeal refused to grant an
injunction which had been sought only at the insistence of the local authority. Ormrod
LJ said that the court should not play the obscure housing-policy game of the local
authority.
In Re Wandsworth LBC ex parte Nimnko-Boateng [1984] 1 Fam Law 117, however, the court
said (without considering Warwick v Warwick) that a local authority could reasonably
insist upon a wife seeking an exclusion order before considering an application to
rehouse her, even where her husband had been violent.
If a battered woman satisfies the criteria set out above, she is entitled to be rehoused
by the local authority, although if she has a local connection with the area of another
local authority, she may be transferred to that other authority for rehousing. If the
accommodation is not permanent or settled, she may still not be homeless. See R v
Brent ex parte Awua [1996] AC 55.
4.4.4 Domestic Violence, Crime and Victims Act 2004 (DVCVA)
In order to give greater protection to victims of domestic violence and following
further criticisms of the FLA, the government decided to implement further reform.
The DVCVA was enacted in 2004 and amends Part IV of the Family Law Act 1996. Under
the 1996 legislation a cohabitant couple were not deemed to be a couple for the
purposes of either non-molestation orders or occupation orders. Under the DVCVA
they are now deemed a couple because they are two persons who, although not
married to each other, are living together as husband and wife or (if the same sex)
in an equivalent relationship. Unlike previously, if the couple are non-cohabitant
couples then they are now protected as the DVCVA includes associated persons who
have or have had an intimate personal relationship with each other which is or was
of significant duration. This inclusion of same-sex couples also extends to occupation
orders so they are now entitled persons for the purposes of the order.
The DVCVA makes it a criminal offence to breach a non-molestation order. This makes
the order a hybrid order, which is in line with other government legislation (see the
anti-social behaviour order). The Act also limits the acceptance of undertakings by the
court instead of awarding a non-molestation order.
Activity 4.7
Put yourself in the position of a court considering a non-molestation order affecting
non-married couples under the new Act. Debate the following issues with yourself
(or others).
a. What would you consider an equivalent relationship to marriage?
b. What would constitute an intimate personal relationship?
c. How long would a relationship need to have existed to be considered of
significant duration?
No feedback provided.
Self-assessment questions
1. Why did the government enact the Protection from Harassment Act 1997?
2. How is the new tort of harassment proven under the Act?
3. What is the meaning of violence within the context of the 1978 Act?
4. Is psychological violence covered by the Act?
5. What does the term intentionally homeless mean?
6. In what ways do local authorities seek to limit their duty to victims of domestic
violence?
7. How have the courts dealt with attempts by local authorities to evade their duty
under the Housing Act 1996?
Family law 4 Protection against domestic violence page 69
8. What difference has the Domestic Violence, Crime and Victims Act made to the
position of same-sex couples?
9. What is a hybrid order?
10. What are the main provisions of s.33 FLA?
Summary
If an occupation order or non-molestation order is made and violence has been
threatened or used, then the courts have the discretion to attach a power of arrest to
the order. Victims of domestic violence can also seek financial compensation, although
there are limits to eligibility for such awards. Rehousing can be a significant issue for
a victim of domestic violence and the eligibility for rehousing is contained in housing
legislation, which includes the Housing Act 1996.
4.5 The Human Rights Act 1998
It can be argued that the Human RIghts Act 1998 (HRA) is relevant to the law relating to
domestic violence in the following five ways (see Herring, pp. 283-285).
1. An occupation order requires someone to leave their home. This would appear to
conflict with Article 8 of the Convention and the respect for private life. However,
paragraph 2 of Article 8 would defeat any such claims as the order can be made
with public safety in mind.
2. Article 6 requires a public hearing and yet some occupation orders are granted
ex parte. For example, an ex parte order could be heard against a violent husband
without him being present. This could arguably undermine his right to a fair trial
under Article 6.
3. Article 1 of the Convention says that every person should be permitted to have
peaceful enjoyment of their possessions. Use of an occupation order could
undermine this Article. This would be justified, though, as being in the public
interest.
4. It could be argued that the law on occupation orders discriminates against
unmarried couples and is therefore in breach of Article 14. The European Court has
not yet ruled that discrimination on the grounds of marital status is per se unlawful.
See Lindsay v UK (1986) 49 DR 181 but contrast with Sahin v Germany (2003) 2 FCR
619.
5. Article 3 prevents the state from subjecting its citizens to torture or inhumane
treatment. As there is a positive duty to protect the citizen from such treatment,
then an occupation order may be the only way a citizen is afforded this protection.
Should a court not provide such an order they may find themselves in breach of
this Article.
Useful further reading
Bird, R. Domestic Violence: Law and Practice (London: Jordan Publishing, 2006)
fifth edition [ISBN 9780853089742].
Choudhry, S. and J. Herring, Righting Domestic Violence, (2006) International
Journal of Law, Policy and the Family 95.
Garlick, P. Judicial separation: a research study (1983) 46 MLR 719.
Humphries, M. Occupation orders revisited (2001) Fam Law 542.
Kaganas, F. and C. Piper, Domestic violence and divorce mediation (1994) 16
JSWFL 265.
Kay, R. Guidelines on sanctions for breach: Hale v Tanner (2001) MLR Vol. 64 No.
4, 595.
page 70 University of London External System
Lawson-Cruttenden, T. and N. Addison Domestic violence and harassment
a consideration of Part IV of the Family Law Act 1996 and the Protection of
Harassment Act 1997 (1998) Fam Law 542.
Madden Dempsey M. What counts as domestic violence? A conceptual analysis,
(2006) William and Mary Journal of Women and the Law 301.
Platt, J. Human rights and Part IV of the Family Law Act 1996 (2000) Fam Law
905.
Reece, H. The End of Domestic Violence, (2006), 69 MLR 770.
Sample examination questions
Question 1 Tom and Rose met six years ago. She was living with her sister Sarah
in the house left to them by their parents when they died. Sarah had the daunting
task of bringing up her three-year-old autistic daughter, Dawn. Five years ago Tom
moved into their house and within a year he and Rose had a child, Fred. A year later
their relationship deteriorated when Sarah, who was very persuasive, and Tom,
who was naturally compliant, started having a sexual relationship. By that time
Tom and Rose were hardly talking to one another. Sarah had become very hostile
towards Rose who was worried about the effect the situation was having on Fred,
who seemed to be very easily affected by Sarahs behaviour. Three weeks ago Rose
decided to move out of the house temporarily and live with her brother, Victor, and
his wife. Sarah and Tom then started a campaign to convince Victor that Rose was
not fit to look after Fred. They telephoned and sent letters telling Victor about how
Rose neglected Fred and they continue to do so.
Rose wants to move back into the house but not while Tom and Sarah are living
there. She wants an end to all the aggression and intimidation. Tom and Sarah
have told Victor that they are setting up home together there and that they intend
to have Fred living with them.
Can Roses needs be met? What action might Tom and Sarah take? Would your
advice to Rose be different if she and Tom had married four years ago?
Question 2 Since the enactment of Part IV of the Family Law Act 1996, there have
been no significant improvements to the state of the law prior to the Part IVs
implementation.
Discuss.
Advice on answering the questions
Question 1
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
4.1 The criminal law
4.2 Injunctions
4.3 The Family Law Act 1996
4.4 Enforcement of orders
4.5 The Human Rights Act 1998
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
5.1 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
5.2 Financial support during marriage . . . . . . . . . . . . . . . . . . . . .77
5.3 Other provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
5 Family maintenance
page 74 University of London External System
Introduction
This chapter, and the two that follow it, outline the means by which family members
can acquire financial support. In common law a duty was imposed on a husband to
maintain his wife by providing her with necessaries but this obligation is no longer of
practical relevance. Today, there are three areas that are important in this context.
u The first, which is the subject of this chapter, covers the rules governing provision
of welfare benefits by the state.
u Second, also the subject of this chapter, is the powers of both the Superior and
Magistrates Courts to make orders requiring one spouse to support the other
during marriage and after divorce. We will also look at the powers of the Superior
and Magistrates Courts that may be invoked after parties have separated prior to
divorce, or where the parties are separated but do not wish to divorce, perhaps for
religious reasons.
u The third area concerns the extensive powers given to the courts by statute to
order parents to provide financial support to their children. These provisions
on financial support for children are now superseded, or in some cases
complemented, by the provisions of the Child Support Acts 1991, 1995 (CSA) and the
reforms contained within the Child Support, Pensions and Social Security Act 2000
(CSPSSA) (see Chapters 6 and 7).
Since the inception of the CPA 2004 all legal references to couples for the purposes of
these benefit entitlements and liabilities would extend to civil partners. (See Part 14
of Schedule 24 of the CPA and the alterations made to the Tax Credits Act 2002 for an
example.)
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u outline the British system of financial support for families
u define liable relative and explain his or her rights and obligations
u list the grounds on which applications may be made under the MCA and DPMCA
and describe the differences between them
u explain the powers of the various courts to make financial provision.
Essential reading
Masson et al., Chapter 6, pp.179207.
Probert, Chapter 7, pp.129134, 146148.
Family law 5 Family maintenance page 75
5.1 Benefits
5.1.1 Background
You are not expected to know more than an outline of the impact of the social
security system upon family law. However, you should have some familiarity with the
income support, family credit and child benefit allowances and an awareness of the
existence of other state benefits and the rules governing the states entitlement to
reimbursement of such benefits from the liable relative.
Some doubt surrounds the number of applications made for financial support
during marriage. What is indisputable, however, is that, in spite of considerable
refurbishment of the relevant statutory principles by the Domestic Proceedings and
Magistrates Court Act 1978 (DPMCA), this area of law has attracted comparatively little
judicial attention and remains undeveloped.
Applications for maintenance to the magistrates fell by 26 per cent between 1983 and
1987, from 27,000 to 20,000. This was due, in particular, to the increase in the number
of separated and divorced spouses relying upon state social security payments as their
principal form of financial support, as well as by the growing number of couples who
regulate their financial requirements by private agreement. Indeed, the number of
one-parent families dependent on supplementary benefit grew from 330,000 in 1980
to 777,000 in 1989, with fewer than a quarter of one-parent families on income support
in 1989 receiving any periodical payments from the absent parent (mostly fathers).
In practice the courts powers are also much affected by the introduction of the
Child Support Act 1991 (CSA), as amended by the 1995 Act and the Child Support,
Pensions and Social Security Act 2000 (CSPSSA). This has meant that where parents are
separated and there is a qualifying child within the definition of the CSA 1991, the Child
Support Agency will be the first avenue to follow in seeking maintenance for children.
5.1.2 Income support
Section 20(3) of the Social Security Act 1986 entitled a person who was not engaged in
remunerative work, but was available for and actively seeking employment and whose
income did not exceed his applicable amount (a standard weekly rate of benefit), to
claim income support. The details of the scheme, which are complex and outside the
Family law syllabus, are contained in the Income Support (General) Regulations 1987,
as amended.
A person under 18 is qualified to apply for income support in exceptional
circumstances only.
Each claimants resources are aggregated for most purposes with those of his or her
family family for this purpose consists of husbands and wives, cohabiting couples
and parents and children. Benefit awarded to a claimant will be in respect of his or
her family and the regulations prescribe 16 different personal allowances which
depend on the individual characteristics of the claimant. Further, certain categories
of claimant are entitled to a premium (i.e. a higher rate of weekly benefit). These
include families and lone parents. Under the Social Security Contributions and
Benefit Act 1992 (SSCBA) unemployed single parents are not expected to be available
for work. Allowances for an unemployed person who is part of a two-parent family
require him or her to be available for employment under the Jobseekers Act 1995. It is
important to note that housing costs, which are defined to include mortgage interest
payments, are included in a claimants applicable amount. This has been of immense
significance in the assessment of financial provision on divorce.
page 76 University of London External System
5.1.3 Family credit (now abolished)
This benefit was designed to provide assistance for low-earning families with children.
The claimant or his or her partner:
u had to be engaged and normally engaged in remunerative work for no fewer than
16 hours weekly
u had to be responsible for a child member of the household
u had income and capital that did not exceed certain levels.
There was no allowance for child-care costs or for housing costs, such as mortgage
interest payments.
Family credit was replaced in October 1999 by the working families tax credit under
the Tax Credits Act 1999. The criteria are identical, but now families can also apply for a
child-care tax credit, which was introduced as an incentive for mothers to work rather
than remain on benefit. These tax credits were subsequently renamed in 2002 and are
now called child tax credit and working tax credit and are governed by the Tax Credits
Act 2002.
5.1.4 Child benefit
This benefit, which is neither means-tested nor taxed, used to be payable under s.1 of
the Child Benefit Act 1975 to a person who is responsible for one or more children in
any week. It is now payable under s.141 of the Social Security Contributions and Benefit
Act 1992. Responsibility may be established by providing either that the child lives with
the claimant or that he or she is contributing to the cost of providing for the child.
One-parent families used to be able to claim an additional benefit one-parent benefit
in respect of their first child only to cover the special costs of bringing up children in
these families. This was abolished in 1998.
Those who are entitled to claim child benefit was reviewed and this is now governed
by the Child Benefit Act 2005.
5.1.5 Contributory benefits
These are a large number of benefits, including unemployment and sickness benefit,
invalidity allowance and pensions which are dependent on contributions
made by
the claimant or his or her spouse.
The liable relative
Social security legislation contains provisions, extended in scope in 1990, whereby the
authorities can recover payments of income support from liable relatives.
For the purposes of income support, a man is liable to maintain his wife and his
children and a woman, her husband and her children. The liability of spouses towards
each other, but not to their children, ceases on divorce. The obligation to maintain is
only enforceable if there has been a claim for income support in respect of a spouse or
a child and extends to incorporate not only the personal allowance in respect of any
children but also child-related premiums and the personal allowance element in
income support.
The Department for Work and Pensions (DWP) seeks to identify and trace welfare
claimants liable relatives in order to ensure that such relatives, rather than the state,
maintain their dependants. An administrative formula is used to calculate the amount
that the relative should contribute to dependants, allowing the liable relative to
keep a reasonable sum for his or her own maintenance. In the event that the DWP is
unable to encourage the liable relative to maintain his or her dependants voluntarily,
it may apply for a court order directing that the liable relative pay an appropriate sum.
Should income support cease to be payable, the benefit of the order may be assigned
to the claimant. The DWP is also entitled to enforce maintenance orders made by the
courts on behalf of income support claimants.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
5.1 Benefits
5.2 Financial support during marriage
5.3 Other provisions
page 82 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
6.1 Financial provision orders . . . . . . . . . . . . . . . . . . . . . . . . .85
6.2 The limits of the financial powers of the court . . . . . . . . . . . . . . .88
6.3 The exercise of the courts powers . . . . . . . . . . . . . . . . . . . . .89
6.4 The welfare of children . . . . . . . . . . . . . . . . . . . . . . . . . .90
6.5 All the circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . .91
6.6 The clean break . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99
6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
6 Financial provision upon divorce, dissolution, nullity
and separation
page 84 University of London External System
Introduction
Courts have a wide discretion as to what financial provision should be ordered upon
divorce, nullity and separation (formerly judicial separation) and it appears that no
distinction is made by the courts in this context between such proceedings. See
Wagstaff v Wagstaff [1992] 1 FLR 333.
That discretion must be exercised in accordance with s.25 MCA (as amended by
the Matrimonial and Family Proceedings Act 1984). The financial circumstances of
divorcing couples vary so considerably that it is impossible to predict with certainty
the outcome of an application for financial provision in any given case.
The same rules apply upon dissolution of a civil partnership as upon divorce. Section
72 CPA 2004 declares explicitly that Schedule 5 makes provision for financial relief in
connection with civil partnerships that corresponds to provision made for financial
relief in connection with marriages by Part II MCA 1973. Due to the relatively new
status of the CPA the current guiding authority tends to focus on divorce among
heterosexual couples.
Some separating couples are able to reach agreement as to financial provision and the
distribution of property on divorce and these agreements could be incorporated in a
court order (a consent order; see below 6.6.3, Private ordering). The FLA tried to further
this practice by encouraging the parties to reach their own agreements without the
interference of the court. These reforms were never fully implemented. Consequently,
when agreement is not possible, the court will exercise its powers to order financial
provision and property distribution. To this extent the law remains the background to
negotiated settlements and becomes operable when agreements prove impossible to
reach.
The courts powers to grant financial provision upon divorce have been greatly
affected by the Child Support Acts (CSA) 1991 and 1995, and CSPSSA 2000. In essence,
before exercising its jurisdiction to make financial provision and property distribution
orders, the court must be appraised of whether the Child Support Agency has
jurisdiction over provision for the children of the marriage. Where the Agency has
jurisdiction, the courts jurisdiction is confined to the circumstances set out in s.8 CSA
1991.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u state the jurisdiction of the divorce court to make financial provision and
property orders in favour of spouses and children
u explain the differences between secured and unsecured periodical payments
and lump sum orders and their respective merits
u state the significance of the welfare of the children of the family
u state the considerations which the court must take into account in calculating
awards
u consider the growing case law on big money cases and the move towards
equality
u give examples of the different possible approaches to calculating orders
u describe the relationship between financial provision and property orders
u define the concept of the clean break and explain the manner in which the
courts have interpreted it
u explain the role of negotiated settlements under the current law
u consider the potential impact of the Human Rights Act 1998 on financial
provision.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 85
Essential reading
Herring, Chapter 5, pp.198257.
Masson et al., Chapter 13, pp.325422.
Probert, Chapter 8, pp.149182.
Standley, Chapter 9, pp.159215.
6.1 Financial provision orders
6.1.1 Orders available
The court may make:
u interim periodical payments orders
u full periodical payments orders
u lump sum orders
u a combined order against the parties on one occasion
u separate orders on different occasions
u different orders in favour of different children
u different orders from time to time in favour of the same child.
6.1.2 Maintenance pending suit
The court could make:
an order requiring either party to the marriage to make to the other such periodical
payments, for his or her maintenance, for such term, being a term beginning not earlier
than the date of the presentation of the petition and ending with the date of the
determination of the suit, as the court thinks reasonable. (s.22 MCA 1973)
This is intended as a temporary measure of financial support for one of the spouses
pending the outcome of the divorce petition and financial relief sought upon divorce.
The difficulty with this type of order is that it does not really improve the position
of (say) a wife who does not have sufficient funds even to initiate an application
for maintenance pending suit. In practice, a wife is more likely to be supported by
voluntary payments from her husband, or by income support, than to seek an order of
maintenance pending suit.
In G v G (Maintenance pending suit: legal costs) [2003] 2 FLR 71, the wife asked for an
element in respect of her legal costs to be included in a maintenance pending suit
award. The husband argued that maintenance did not extend to include the legal
costs of ancillary relief proceedings. The court, however, held that maintenance was
to be construed in the overall context of the Act, which was to promote and produce a
fair result between husband and wife, and could therefore include a payment to meet
the costs of the ancillary relief proceedings.
Orders may be for a lump sum or periodical payments and may be interim or full
orders. However, other than where an interim order is made, the court must be
satisfied before making the order that:
u the circumstances are exceptional
u it would be just and reasonable for the order to be so made.
page 86 University of London External System
6.1.3 Periodical payments orders
The court may order that either party to the marriage shall make to the other such
periodical payments, secured or unsecured, as may be specified in the court order for
the benefit of either party to the marriage or any child of the family.
It has been noted above that full (as opposed to interim) periodical payments orders
may exceptionally be made after the receipt of the statement of breakdown, but
before the order for divorce is granted.
If the order is unsecured, it will direct the payer to make payments with the regularity
stipulated by the order (weekly, monthly, quarterly, etc.). The court has the power to
order payment by standing order or direct debit. It may also make an attachment of
earnings order requiring an employer to deduct specified sums from an employees
pay and to pay them over to the court.
A secured order consists of periodical payments orders secured to capital belonging to
the payer (such as real property or stocks and shares) which will be vested in trustees
by the court order. Default by the husband, if he is the payer, will result in the wife
being entitled to claim upon the security in order to cover the arrears in payments
owed to her. In such a case, the secured order may continue for the wifes lifetime;
the husband may die, but the fund remains. In contrast, there is no power to order
unsecured payments to continue beyond the parties joint lives.
The basic rule for the duration of orders is laid down by s.28(1) MCA. An unsecured
order shall not extend:
beyond the death of either of the parties to the marriage or where the order is made on
or after the grant of a decree of divorce the remarriage of the party in whose favour the
order is made.
Note that if an ex-wife who is in receipt of a periodical payments order from her
former spouse cohabits with another man, her order does not automatically
terminate, although the ex-husband may have grounds for applying for a variation of
the order under s.31 MCA. See Atkinson v Atkinson [1988] Fam 93.
Secured or unsecured periodical payments orders may be made, subject to the
provisions of the CSA 1991 in respect of children of the family.
Note also that remarriage does not terminate orders in favour of children of the
previous marriage.
6.1.4 Lump sum orders
MCA s.23(1)(c) states that a lump sum order is:
an order that either party to the marriage shall pay to the other such lump sum or sums
as may be so specified.
Lump sums enjoy several advantages over periodical payments orders. These orders
may sometimes be very large: see Gojkovic v Gojkovic [1990] 1 FLR 140.
Enforcing the payment of a once-and-for-all sum is often easier than trying to recover
relatively small periodical payments at intervals. The lump sum, being a judgment
debt, can be enforced in bankruptcy proceedings. Moreover, in many cases such a
payment comes closest to promoting the philosophy of a clean break which courts
are enjoined to consider (see 6.6 below). A factor that courts contemplating the award
of a lump sum have to bear in mind is that, although the husband may have assets
from which the sum may be derived, they may not be immediately realisable. The
attempt to realise them may indeed simply depress the resources of both husband
and wife. This can occur, for example, where the husband owns a farm or runs his own
one-man business. In such a case the court may order payment of the lump sum by
instalments.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 87
Some issues have arisen in recent decisions: see M v B (Ancillary Proceedings: Lump Sum)
[1998] 1 FLR 53. In this case the Court of Appeal stressed the paramount consideration
to cover the needs of both parties for a home, even for the parent without day-to-day
care of children. It was a matter which would almost invariably have a decisive impact
on the outcome of the case.
A clear reminder that decisions involving the exercise of discretion do not create
rules was given by the House of Lords in Piglowska v Piglowski [1999] 2 FLR 763. The
Court of Appeal varied an order on appeal by awarding the husband 40 per cent of
the proceeds of the sale of the former matrimonial home. This would have had the
effect of requiring the home to be sold, the justification for which was that, as the
parties were legally aided, the husband would have been able to purchase a home,
thereby deferring the operation of the Legal Aid statutory charge. The HL held that it
was wrong for a court to order more than it otherwise would have on the ground that,
by doing so, the husband could avoid the Legal Aid Boards charge. Furthermore, M v B
(above) had not established a rule that both spouses had a right to be able to purchase
a home; a value judgment could be made in particular cases that a spouse should not
be awarded a lump sum sufficient to buy a property. Finally, an appeal court should not
substitute its own discretion for that of the judge by a narrow textual analysis which
enables it to claim that the judge misdirected himself. Some diversity in the decisions
of first instance courts was a reasonable price to pay for the flexibility of the discretion
which the MCA conferred upon them.
Activity 6.1
Why should there be any redistribution of property upon separation and divorce?
Activity 6.2
Evaluate the advantages and disadvantages of lump sum orders.
6.1.5 Property adjustment and transfer orders
MCA s.24(1)(a) enables the court to order that specified property, to which the spouse
is entitled in possession or reversion, be transferred to the other spouse (or for the
benefit of the children). You should note that rented property can be transferred
under this section. Furthermore, s.53 FLA 1996 enabled the court to transfer Rent Act
protected or assured tenancies (in the private sector) or Housing Act secure tenancies
(in the public sector) upon divorce.
Property adjustment orders can only take effect after the making of a divorce or
separation order unless the court is satisfied that:
u the circumstances of the case are exceptional
u it would be just and reasonable for the order to be so made (MCA 1973 s.23).
Recent decisions have demonstrated the possibilities under this provision: see B v B
(Welfare of Child and Conduct) [2002] 1 FLR 555. In this case an order to the wife of the
entire net value of the matrimonial home was justified by the need to house the child
of the marriage to a reasonable standard. A Mesher order
was made in the old MCA s.25 but, since 1984, it has been
accorded a paragraph in its own right. Courts had traditionally taken into account the
conduct of either or both parties in assessing maintenance. The wifes adultery, or the
husbands cruelty, might materially affect the provision made for the wife. In some
cases, although increasingly rarely in the post-war era, a wifes misconduct might
totally disqualify her from receiving financial provision. After the Divorce Reform Act
1969 and the accompanying statute on financial provision, the Matrimonial
Proceedings and Property Act 1970 (now incorporated within the MCA) had been
brought into effect, Lord Denning indicated that a fresh approach to the treatment of
conduct in financial provision applications was required. In Wachtel v Wachtel [1973]
Fam 72 he asserted:
There will no doubt be a residue of cases where the conduct of one of the parties is both
obvious and gross,
within marriage
to determine settlement. It is limited to conduct within marriage, not litigation. See H
v H (Financial relief: conduct) [1998] 1 FLR 971, and Tavoulareas v Tavoulareas [1998] 2 FLR
418.
The approach adopted was considered in Young v Young [1998] 2 FLR 1131 and then
the CA considered these issues in Clark v Clark [1999] 2 FLR 49. For a more recent
consideration see Al-Khatib v Masry [2002] 1 FLR 1053.
Activity 6.10
To what extent should conduct have a bearing on financial provision?
It is to be noted that
conduct is only one factor
to be taken into account in
assessing financial provision:
you may like to make a
checklist of the other factors
before going any further.
page 98 University of London External System
6.5.10 Section 25(2)(h): benefits and pensions
You will recall that the divorce court has had no power to make orders with respect
to property to which the respondent is not entitled. This has created particular
difficulties with respect to pension funds and discretionary trusts. Courts may make
an immediate order affecting other assets to compensate for the loss (see Richardson
v Richardson [1978] 2 FLR 286), adjourn the application for ancillary relief until sums
become payable (see Roberts v Roberts [1986] 2 FLR 152) or encourage the respondent
to make other arrangements to compensate the applicant (see Parker v Parker [1972]
Fam 116).
Pension entitlement, especially important for those who have made no pension
provision themselves, has always been a consideration under s.25(2)(h) but
amendments to the MCA improve the situation for the spouse seeking to rely on their
partners pension. Recognised as a post-nuptial settlement, the court now has the
ability to reallocate a pension on divorce. It can do this in one of three ways.
u Offsetting. In order to make compensatory allowances for the loss of a pension
the court can order a larger lump sum to be awarded or the matrimonial home to
be transferred. The pension could then be retained by the provider.
u Attachment order (which used to be called an earmarking order). Under ss.25BD
MCA the court can make an attachment order, which means a pension can be split
upon retirement. There is a two-stage process for this order to be granted. First,
it will be asked if the order should be made to take account of any loss under a
pension scheme. If the answer is yes then the court must decide whether to order
the trustees of the pension to make payments to the other spouse. The payments
made to the other spouse must not exceed those of the pension holder. There is no
automatic entitlement to this order. See T v T (Financial relief: pensions) [1998] 1 FLR
1072.
u A pension sharing order. There are two criticisms of the attachment order process:
it can be uncertain as to when the monies will appear and it negates the courts
preference for a clean break. By virtue of the Welfare Reform and Pensions Act
1999, Part II of the MCA is amended to allow pension sharing upon divorce. This
means the pension fund will be split and can be allocated to the other spouse to
invest as they choose. It applies only to petitions filed after 1 December 2000.
Summary
Under s.25(1) MCA the court must consider all of the circumstances and must have due
regard to the matters specified in s.25(2). The factors to be included for consideration
are financial resources, earning capacity and potential, financial needs, obligations and
responsibilities and the standard of living. The courts also have to consider the parties
age and the length of the marriage, any physical or mental disability of either of the
parties, the contributions to the welfare of the family, conduct of each party and
benefits and pension provision.
Go to your study pack and
read the critique of financial
provision outlined by Alison
Diduck in Family finances:
owning and sharing.
Think about her concern
that there is no theoretical
framework supporting
the allocation of financial
provision.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 99
6.6 The clean break
Lord Scarman noted that the clean break principle informed modern financial
provision legislation in Minton v Minton [1979] AC 593, 608.
This principle is now legislatively enshrined in s.25A. Thus, s.25A(1) states:
it shall be the duty of the court to consider whether it would be appropriate so to
exercise those powers that the financial obligations of each party towards the other
will be terminated as soon after the grant of the decree as the court considers just and
reasonable. (MCA s.25A(1))
Where the court is minded to make a periodical payments order it must:
consider whether it would be appropriate to require those payments to be made or
secured only for such term as would in the opinion of the court be sufficient to enable
the party in whose favour the order is made to adjust without undue hardship to the
termination of his or her financial dependence on the other party. (MCA s.25A(2))
Finally, where a party to a marriage applies in divorce or nullity proceedings for a
periodical payments order, then if the court considers that no continuing obligation
should be imposed on either party to make or secure periodical payments in favour
of the other, the court may dismiss the application with a direction that the applicant
shall not be entitled to make any further application.
6.6.1 Points emerging from the cases
u The policy is that, so far as possible, financial provision applications for former
spouses (especially where there are no children of the family requiring support)
should be dismissed. See B v B [1990] 1 FLR 202.
u In C v C [1989] 1 FLR 11 and Hedges v Hedges [1991] 1 FLR 196 the court indicated that
periodical payments for a young or middle-aged wife in possession of substantial
capital were largely obsolescent. But see DWJ v SRJ [1999] 2 FLR 176 and then
consider F v F [2003] 1 FLR 847.
u Courts have been reluctant to deny applicants the right to make any further
application, particularly where circumstances may change. See Waterman v
Waterman [1989] 2 FLR 380, Whiting v Whiting [1988] 2 All ER 275 and Barrett v Barrett
[1988] 2 FLR 516, but note Seaton v Seaton [1986] 16 Fam Law 267.
u As far as possible, periodical payments should only be ordered for a fixed term of
years. Fixed-term maintenance orders were often made even before the clean
break amendments of 1984. Such orders have since become even more frequent.
(See Waterman v Waterman, where the Court of Appeal approved an order
awarding the wife periodical payment for five years. See also C v C [1989] 1 FLR 11,
Flavell v Flavell [1997] 1 FLR 353, G v G [1998] 1 FLR 368 and Jones [2000] 2 FLR 307.)
u Courts should prefer capital provision, such as lump sum and property adjustment
orders, to periodical payments orders. Lump sum orders have been made more
frequently in recent years. The courts have developed a number of principles
for quantifying the lump sum. See Duxbury v Duxbury [1987] FLR 7 and Gojkovic v
Gojkovic [1990] FLR 140.
u The clean break principle must be considered even in cases where there are
children under 18 whose welfare is the first consideration of the court. Although
the principle is not designed to apply to the financial provision for children, its
application must be considered in relation to the obligation of spouses to support
each other. See Suter v Suter and Jones [1987] 2 All ER 336 and contrast with Delaney v
Delaney [1990] 2 FLR 457.
u The court must give proper weight to the ability of a spouse to become self-
sufficient without undue hardship. This is particularly problematic in the context
of middle-aged, homemaker wives. See Morris v Morris [1985] FLR 1176.
u In considering a spouses financial independence from the other spouse, all
There is useful web-based
information on these
somewhat complex
provisions at, among others:
www.dwp.gov.uk,
www.watsonwyatt.com,
www.npi.co.uk
page 100 University of London External System
possible forms of support will be regarded and not only the dependent spouses
earning capacity. See Seaton v Seaton [1986] 16 Fam Law 267, Ashley v Blackman
[1988] Fam 85 and more recently M v M (Financial Relief: Substantial Earning Capacity)
[2004] 2 FLR 236.
Financial provision orders incorporating clean break attitudes appear to be becoming
increasingly popular, suggesting that the divorcing population would prefer to avoid
an ongoing maintenance obligation. You should be aware that the introduction of
the Child Support Act legislation has had an adverse impact on the philosophy of the
clean break.
Activity 6.11
a. What are the advantages and disadvantages of the clean break? How willing
are the courts to make clean break orders?
b. Janet and Michael have been married for 30 years. Janet is a doctor in general
practice and Michael is a partner in a firm of architects. Their children Andrea,
aged 21 and Simon, aged 19 are both students at university. Having grown apart,
Janet and Michael have decided to get divorced and are enquiring as to whether
a clean break order would be appropriate given their situation. Advise.
6.6.2 Evaluation
Circumstances arising after the divorce may require a financial provision order to be
varied. The wifes ill-health, the husbands redundancy, the impact of inflation upon
awards all these are obvious reasons for reassessing the initial order for financial
provision. Some relevant changes of circumstances have already been noted:
remarriage of the payee or the death of either party automatically terminates a
periodical payments order. In all other cases an application to the court must be made
for variation.
Section 31 MCA sets out the principles a court must apply in applications to vary a
financial provision order.
u Lump sum and property adjustment orders cannot be varied (s.31(2)). They are
intended to facilitate a final clean break of the marriage. The court may, however,
vary any provisions relating to instalments or security for such an order. It is
possible, for example, to change the property against which a lump sum is secured.
u Periodical payments orders can be varied. The court has power to:
vary or discharge the order or suspend any provision thereof temporarily and to revive
the operation of any provision so suspended. (s.31(1))
Where payment of maintenance has been limited in point of time (for example, the
husband has been ordered to pay the wife 200 a week for five years), the court may
vary the term specified in the order unless a direction has previously been given that
no application for this purpose shall be permitted (s.28(1A)). In considering whether
to exercise the power to vary a periodical payments order, the court is directed to
consider all the circumstances of the case (s.31(7)). In particular, it is directed to give
first consideration to the welfare of any minor children of the family and to consider
whether, in all the circumstances and having regard to any change in the relevant
matters since the order was made, it would be appropriate to terminate the periodical
payments after a period sufficient to enable the recipient to adjust to the termination
without undue hardship. As we shall see, these are factors germane to the initial
application for financial provision as well as to a subsequent application to vary.
The court has no power under s.31 MCA to substitute a lump sum or property
adjustment order for a periodical payments order. However, where a spouse is anxious
to commute his or her liability to make regular periodical payments for a once-and-
for-all lump sum or property adjustment order, the court may accept an undertaking
on his or her part, if it is sufficient, to pay a sum or transfer property in satisfaction of
his or her claims under the previous order. See S v S [1986] Fam 189.
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 101
6.6.3 Private ordering
Most financial ordering after breakdown of marriage is resolved by agreements
between the parties. However, s.34 MCA provides that any provision in a maintenance
agreement restricting the parties right to apply to the court is void. Parties may seek
an order by consent from the court, which will then derive its legal effect from the
decision of the court. See De Lasala v De Lasala [1980] AC 546.
The provisions governing such orders are in ss.33A, 34, 35 and 36 MCA. The courts role
is not as a rubber stamp, but it must consider all the circumstances, including those
in s.25 MCA, and the parties have a duty to provide all relevant information. See Livesey
v Jenkins [1985] FLR 813, G v G [2000] 2 FLR 18, X v X (Y and Z Intervening) [2002] 1 FLR 508
and Harris v Manahan [1997] 1 FLR 205.
An order may be set aside for non-disclosure of relevant information. See Livesey v
Jenkins (details as above). However, consent orders are not lightly overthrown: see
Edgar v Edgar [1980] 1 WLR 1410, Pounds v Pounds [1994] 1 FLR 775 and Beach v Beach
[1995] 1 FLR 161.
Leave can be given to set aside a consent order where there is a change of
circumstances unforeseen by either party if the change of circumstances falsifies
the basis or fundamental assumption underlying the order, which occurs within a
relatively short time, where the application for leave is made promptly and where
granting of leave does not unfairly prejudice third parties. See Barder v Barder [1987]
1 FLR 480, Hopes Smith v Hopes Smith [1989] 2 FLR 56, Smith v Smith [1991] 2 All ER 306,
Barber v Barber [1992] Fam Law 436, Chaudhuri v Chaudhuri [1992] Fam Law 384 and S v S
(FinanciaI Provision) [1994] 2 FLR.
Pre-nuptial agreements
Following the decision in Miller more media attention focused on the use and
relevance of the pre-nuptial agreement. The Law Reform Committee of the Solicitors
Family Law Association had already called for pre-nuptial agreements to be made
legally binding in a report, published in November 2004, called A More Certain Future
Recognition of Pre-Marital Agreements in England and Wales. This was in response
to the governments Green Paper Supporting Families calling for reform. Case law
had also seen greater reference, if not reliance, by the courts on these agreements
as in K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120. That said the courts
have also confirmed that the parties to a divorce cannot oust the courts jurisdiction
by agreement. They cannot fetter the courts discretion by drafting express
provisions on how a settlement is to be devised nor what legal provisions will govern
its construction. This was confirmed in Charalambous v Charalambous, The Times,
September 7, 2004.
It is possible that more and more attempts will be made by the parties to a marriage
to raise the importance of these pre-nuptial agreements in an effort to secure
expectations of what may happen with financial provision upon divorce. In line with
reliance in other jurisdictions it remains to be seen how far the courts will continue to
consider such agreements.
page 102 University of London External System
6.6.4 The Human Rights Act 1998 and financial provision upon marital
breakdown
The two relevant provisions of the European Convention on Human Rights which may
be applicable with regard to this area of family law are Article 1 of the first Protocol of
the Convention and Article 5 of the seventh Protocol on the equality between spouses.
u Article 1 concerns the peaceful enjoyment of property and this would appear to
be contrary to any court making an order for financial support upon divorce. There
has been no action founded on this basis. Herring (p.209) argues that if you view
any financial support as a share rather than a transfer then the Article is unlikely to
be invoked.
u Article 5 was not included within the Human Rights Act 1998 and so its relevance
is limited here. Even if it had been, the memorandum of explanation which
accompanies the Article would suggest that it is not incompatible with our own
law. Especially if post-White equality is to be used and, in accordance with Lambert,
rarely departed from as a yardstick, then there would be no chance of successful
challenge.
Summary
Modern financial provision has been heavily influenced by the principle of clean
break. Periodical payments have become less popular as lump sum orders are seen
as more final, allowing the parties to get on with their lives free from the shackles of
the failed marriage. The case law offers guidance as to the operation of this principle.
On occasions there may be a need to vary the provision of a financial order. It is
not possible for private ordering to restrict the discretion of the court if informal
resolutions break down. Pre-nuptial agreements have become increasingly popular
and the government have suggested that such agreements ought to be binding. The
Human Rights Act 1998 is unlikely to have a substantial impact upon the existing law
for provision of financial support following marital breakdown.
6.7 Conclusion
Students often find it hard to apply the law relating to financial provision upon
divorce, dissolution, nullity and separation (although, please note that most exam
questions only concern divorce) to the facts of a given problem.
The principles and, still more, the cases are so numerous that it is no easy matter to
distinguish the relevant from the irrelevant. You may find the following checklist of
questions helpful.
u Does the problem reveal whether or not the Child Support Agency will have
jurisdiction to make orders for the children?
u What sort of order is most appropriate?
u periodical payments order (secured or unsecured)
u lump sum order
u property adjustment order
u order varying or extinguishing an interest under a settlement
u sale order (if used to give effect to one of the other types of order).
u What order will ensure that the childrens interests are the first consideration?
u Will the petitioner be able to adjust to the termination of his or her financial
dependence on the other party without undue hardship? If so, what type of clean
break order will most effectively promote independence?
u Are the factors listed in s.25(2) MCA particularly relevant to the facts of the problem
(e.g. special needs of either party or the conduct of either party)? There is no need
Family law 6 Financial provision upon divorce, dissolution, nullity and separation page 103
to consider every paragraph in s.25(2). Only those which appear to be relevant to
the facts of the problem should be discussed.
u If a periodical payments or lump sum order is appropriate, what sort of order will
be made (e.g. more or less than one-third)? There is no need to assess a precise
figure. If a property adjustment order should be made, what type of order do you
think the court will favour (e.g. Mesher order, outright transfer)?
Useful further reading
Bailey-Harris, R. Dividing the assets on family breakdown: the content of
fairness (2001) CLP 533.
Barton, C. and M. Hibbs Ancillary financial relief and the fat cat(tle) divorce
(2002) 65 MLR 79.
Bird, R. The reform of Section 25 (2002) Fam Law 428.
Bird, R. Miller v Miller: Guidance or Confusion, Fam Law, 2005, 35, 874-882.
Bond, A. Ancillary relief and the short marriage (2002) Fam Law 551.
Campbell, D. Pension sharing in practice (2002) Fam Law 35.
Cretney, S. Trusting the judges: money after divorce (1999) 52 CLP 286.
Diduck, A. Laws Families. (Cambridge: Cambridge University Press, 2003)
[ISBN 9780406967336] Chapter 6, pp.133164.
Eekelaar, J. Should s.25 be reformed? (1998) Fam Law 46.
Eekelaar, J. Miller v Miller: the Descent into Chaos, Fam Law ,2005, 35, 870-874
George, P. Fair is Fair After White (2002) Fam Law 307.
Gerlis, S. White the unlearned lesson (2002) Fam Law 628.
Hitchings, E. (2008) Everyday cases in the post-White era 38 Fam Law 873.
Meehan, A. Miller: Practitioners Expectations Disappointed, Fam Law, 2005,
35 (October), 787-793.
ODonovan, K. Flirting with academic categorizations McFarlane v McFarlane
and Parlour v Parlour (2005) CFLQ, Vol 17, No 3, 415.
Salter, D. The pitfalls of pension sharing (2002) Fam Law 598, 666.
Sample examination questions
Question 1 Critically consider the opinion that equal distribution of assets and
income on divorce, if automatically applied, would depart too far from justice and
that the only way to maintain justice is to preserve unfettered judicial discretion.
Question 2 James and Sandra, now aged 48 and 45, respectively, have been married
for 20 years and have two children. Tom, aged 12, and Emily, 10. The family live in
a five-bedroomed house, currently valued at 1 million, which Sandra inherited
from her parents. Sandra has never worked, having also inherited a substantial
legacy from her parents. Last year, Sandra discovered that James, a theatre manager
who earns 30,000 a year, has been living with a set decorator, Alison, during the
week in London. James had told Sandra that he had been staying in a hotel near the
theatre.
This year Sandra met William, a wealthy antique dealer, and decided that she had
had enough of James. Sandra now intends to divorce James, but is worried that,
on divorce, James may be awarded a share in the value of the house and her other
assets.
With reference to case law, advise Sandra of the principles the court will employ
and the likely outcome of any application made by James for property and financial
provision.
page 104 University of London External System
Advice on answering the questions
In the incomplete world of examination problems, prediction of possible financial
provision orders is hazardous. Confronted with this uncertainty, many candidates
answering questions on this topic content themselves with copying out, more or less
accurately, the relevant paragraphs of MCA s.25 and conclude with some generalized
statement such as the court will make whatever order it considers appropriate.
Answers of this sort earn few marks. You are expected to apply your own powers of
analysis to the facts of the problem and to indicate the relevance of specific facts in the
problem to the factors set out in s.25 and to cases decided under that section. Few, if
any, marks are awarded for copying out the statutes.
Question 1 In responding to this essay question students ought to demonstrate a
grasp of how judicial attitudes have changed from the early operation of the MCA. In
exercising their discretion, the courts were initially too focused on the needs of the
economically weaker party being met. This could lead to significant injustice if the
economically stronger party was very rich. This led to rough and ready formulas of
calculation such as the one-third rule and then the more complicated Duxbury
calculation.
Neither were seen to reflect a true picture of what was required or what
was seen as just. Then came White [2001] AC 596 and the goalposts appeared to move.
Lord Nicholls recommended a yardstick of equality and some commentators thought
he meant a presumptive 50/50 split. This was over-zealous on the part of those
demanding more for the economically weaker party. Lord Nicholls actually suggested
that equality should be a starting point. It is this position which the essay question is
asking you to consider. Does a presumption of equality depart from justice? Will there
be instances where this yardstick is unjust in operation? Look at S v S [2001], H-J [2002]
and Norris [2003].
You can also raise the concern that in the big money cases, whilst 50/50 is not the
net result of the decisions, substantial amounts of money are now being awarded to
spouses (Charman [2007]; McCartney v Mills-McCartney, [2008] EWHC 401) and even
future earnings are being used as a way of ensuring future capital gain for the spouse
who is not in the large income job (Parlour [2005]). Is this a desirable development?
Should there be any limit on award? After all even if 50 per cent is not acquired, 36.5
per cent (as in Charman) resulted in substantial settlements.
Sometimes the principle of equality will not assist the economically weaker party. In
Cowan [2001] the success of the husband appeared to outweigh any suggestion of
equality. This was qualified in Lambert [2002] as being exceptional. But in big money
cases it seems to be par for the course (Miller [2005]). If parents have made significant
contributions are these lost under a principle of equality? If one party has acted in a
grossly objectionable way, do they deserve the 50/50 split? You should remember that
Parliament provided a framework for discretion in s.25 MCA. Should the courts be in
a position to substantially depart from that framework? Equality rather than needs is
quite a departure. There are some justifications for the equality presumption. After
all, needs could lead an older woman in a long marriage to require less than a younger
woman in a shorter marriage and this would not appear fair. However, other criticisms,
as discussed, have identified the limitations of such an approach. Also ask how the
judges have flirted with academic categorisation (ODonovan, 2005) to assist them
with their judgments.
This question demands a good grasp of recent case law but also a sensible conclusion
based on effective argument. The line of argument matters less than the students
commitment to a position. You must take a stand. Examiners are often more critical of
students who remain too neutral.
Question 2 This problem question is reasonably straightforward but does give you
an opportunity to come up with a creative package of ancillary relief for Sandra.
Remember the children are under 18 and so under s.25(1) their welfare is the first,
but not the paramount, consideration. If James and Sandra can reach an agreement
there will be no need to apply to the Child Support Agency for an assessment of
maintenance. From Sandras perspective this can be a useful device in coercion as
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
6.1 Financial provision orders
6.2 The limits of the financial powers of the court
6.3 The exercise of the courts powers
6.4 The welfare of children
6.5 All the circumstances
6.6 The clean break
6.7 Conclusion
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7.1 Family maintenance outside the Child Support Acts . . . . . . . . . . . 109
7.2 Financial provision during marriage . . . . . . . . . . . . . . . . . . . 111
7.3 The Child Support Act 1991 . . . . . . . . . . . . . . . . . . . . . . . 113
7.4 The welfare of the child . . . . . . . . . . . . . . . . . . . . . . . . . 115
7.5 Child support in action. . . . . . . . . . . . . . . . . . . . . . . . . . 118
7.6 Continued dissatisfaction and the road to further reform . . . . . . . . 123
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
7 Child support and the Child Support Acts
page 108 University of London External System
Introduction
The Child Support Act 1991 (CSA) was enacted in an attempt to rationalise the
law governing the provision for child support. But although s.8 CSA removes the
jurisdiction of the courts to make financial orders for children, it does not change the
pre-existing law as such: it merely provides that in cases to which the Act applies no
court shall exercise any power which it would otherwise have. In other words, the
powers of the courts are not abolished, but they may not be exercised. Note that the
system was reformed by CSA 1995 but a new, much more straightforward formula
has been implemented by the Child Support, Pensions and Social Security Act 2000
(CSPSSA). That said, knowledge of the old law is required to secure your grasp of this
potentially controversial area of family law.
Notwithstanding the introduction of the CSA, there are residual areas in which the
courts retain jurisdiction. First, the CSA only applies to qualifying children natural or
adopted children of both parents thus the support of non-qualifying children, such as
step-children, is outside the scope of the Act and within the jurisdiction of the courts.
Further, even where the child is a qualifying child, the court has a role in three cases.
1. Where a maintenance assessment is in force and additional amounts of support
are required.
2. Where the child is in instruction or training or is disabled.
3. Where revocation of a maintenance order is sought (CSA s.8(4)).
This chapter therefore considers:
u the powers of the court to make orders for a child on dissolution or nullity of
marriage and judicial separation
u the powers of the divorce court and the magistrates court to make orders with
respect to children during marriage
u the financial powers under the Children Act 1989 (CA) and the CSA 1991
u the reforms advanced by the CSA 1995 and the new formula advanced by the
CSPSSA.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u list the defects in the law of child maintenance which led to the introduction of
the Child Support Act 1991
u outline the powers of the Child Support Agency
u define qualifying child, parent with care and absent parent
u explain the importance of the welfare of the child under the Acts
u say who may and who must apply to the Child Support Agency for child
maintenance
u outline the elements of the formula
u explain the residual jurisdiction of the courts
u describe the manner in which payments under the Child Support Acts critically
affect the award of maintenance and financial provision on divorce
u consider whether recent reforms will make the collection of maintenance any
more effective.
Essential reading
Herring, Chapter 5, pp.175-198.
Masson et al., Chapter 15, pp.443484.
Probert, Chapter 7, pp.134146.
Standley, Chapter 14, pp.319340.
Family law 7 Child support and the Child Support Acts page 109
7.1 Family maintenance outside the Child Support Acts
Orders available
These orders are made under the MCA and cannot be provided if the Child Support
Agency has jurisdiction to make an assessment.
The court may make periodical payments orders, secured periodical payments orders
and lump sum orders under s.23(1)(d)(f) MCA. In each case, the court may order that
the payment be made to the child or such person as may be specified in the order for
the benefit of the child. The powers may be exercised before a decree is granted and
they can be exercised from time to time. Even where the proceedings are dismissed,
an order may be made within a reasonable time after dismissal and further orders may
be made from time to time (s.23(2), (4) MCA).
The court has the power to make transfer of property orders in favour of a child of the
family or some other person for the benefit of the child. It may order a settlement of
property for the benefit of children of the family and it may vary any pre- or post-
nuptial settlement for the benefit of such a child (s.24 MCA). However, although the
court has the power to make these property adjustment orders and the power to
order payment of a lump sum, it will normally not make lifelong provision for a child
who is under no disability and whose education is secure. See Lifford v Glyn [1979] 1
WLR 78 and H v M [1992] 1 FLR 229.
It should be noted that the power to make orders for the benefit of the child (which
also exists in the DPMCA and the CA) does not confine the court to orders providing
a direct financial benefit to the child. It extends to enable the court to direct that a
father transfer to a mother his interest in the joint tenancy in the family home so as to
enable her to provide a home for the children. See K v K [1992] 2 All ER 727.
Criteria
The matters to be taken into account in determining whether to make an order and
the content of the order are in s.25(3) MCA, which directs the court to have regard to:
u the financial needs of the child
u the income, earning capacity (if any), property and other financial resources of the
child
u any physical or mental disability of the child
u the manner in which he or she was being, and in which the parties to the marriage
expected him or her to be, educated or trained
u the financial resources and financial needs of the spouses, the standard of living
enjoyed by the family before the breakdown and any disability of either party to
the marriage.
The child of the family
Orders are available in respect of a child of the family defined in s.52 MCA. Such a child
is a child of both of the parties to the marriage: in other words, their biological child
or any other child who has been treated by both parties as a child of their family.
This formulation covers stepchildren, even where the treatment is in ignorance of the
childs true parentage (see W(RJ) v W(SJ) [1972] Fam 12) and privately fostered children.
In order to fulfil the definition, however, the child must be treated as a child of the
family after his or her birth (see A v A [1974] Fam 6) and the treatment must occur
within a family (Re M (A Minor) (1980) 2 FLR 184).
Where the child is a child of the family, but no financial provision is sought from an
individual who is not his or her biological parent, s.25(4) MCA directs the court to have
regard to:
u whether that party assumed any responsibility for the childs maintenance and,
if so, to the extent to which, and the basis upon which, that party assumed such
page 110 University of London External System
responsibility and to the length of time for which that party discharged such
responsibility
u whether in assuming and discharging such responsibility that party did so knowing
that the child was not his or her own
u the liability of any other person to maintain the child.
See Re A [1998] 1 FLR 347 where a mother, unable to look after her child, sought her
parents help. In proceedings brought when her marriage broke down, the court held
that the grandchild was a child of the family.
Duration and age limits
Section 29 provides that no financial provision order and no order for a transfer of
property shall be made in favour of a child who has attained 18 and that periodical
payments orders will not last beyond the childs 18th birthday. These restrictions
do not apply where the child is or would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or vocation, whether or
not he or she is employed simultaneously or where there are special circumstances,
such as disability (s.29(3) MCA).
Death of the payee terminates any periodical payments orders (s.29(4) MCA).
Applicants
Orders are available to a party to a marriage. The child may not apply on his or
her own behalf. However, he or she may intervene in matrimonial proceedings,
notwithstanding the fact that the decree may have been pronounced many years ago,
and claim financial provision (see: Downing v Downing (Downing Intervening) [1976] Fam
288).
Activity 7.1
What is the position of a stepchild for the purposes of an award under the MCA
1973?
Summary
There will be some instances where the courts make orders, under the MCA, outside
of the Child Support Acts. These cannot be made if the Child Support Agency has
jurisdiction to make an assessment. These orders are for the benefit of the child and
are subject to certain criteria. They are not available for children who have reached the
age of 18. The orders are made on behalf of the child by a party to a marriage. Children
may not apply on their own behalf although they can intervene in matrimonial
proceedings whether past or existing.
Family law 7 Child support and the Child Support Acts page 111
7.2 Financial provision during marriage
The divorce court is empowered under s.27 MCA to make unsecured and secured
periodical payment and lump sum orders for the benefit of a child of the family
to whom an application relates. In determining whether to grant an order and its
content, the court must take into account those matters contained in s.25(3) and (4),
discussed above. The same restrictions in s.29 (on the making of financial provision
orders in favour of children who have attained the age of 18) apply.
Unsecured periodical payments and lump sum orders may also be granted for the
benefit of the child of the family (see s.88 DPMCA) in the Magistrates Court (s.2
DPMCA). The matters to be taken into account in s.3(3) DPMCA are similar to those
in s.25(3) and (4) MCA. Again the same restrictions apply on the making of orders in
favour of children who have attained 18 (see s.5 DPMCA).
7.2.1 Financial orders for children under the Children Act 1989
Orders available
Schedule 1 CA establishes a comprehensive code empowering the court to make
financial support orders against a childs parent, defined as including any party to a
marriage, whether or not subsisting, in relation to whom the child concerned is a child
of the family (paragraph 16(2)). Such a person does not include the biological parents
cohabitant. See Re J (1992) The Times, 12 November.
Orders available include unsecured and secured periodical payments, lump sum and
property transfer orders (paragraphs 1 and 2(2)). Such orders can be made to the child
himself or herself or to the applicant for the benefit of the child. See K v K [1992] All ER
727.
Magistrates have the jurisdiction to make unsecured periodical payments and lump
sum orders not exceeding 1,000, while the jurisdiction of the High Court and the
county court is unrestricted.
Although a court has the power to make a lump sum order, the court held in Phillips
v Peace [1996] 2 FLR 230 that, given the restrictions applied by s.8(3) CSA 1991 on the
powers of the courts to make orders for child maintenance, lump sums should be
ordered specifically for items of capital expenditure (a house and furniture) and not as
a capitalised form of maintenance.
Criteria
The criteria governing the courts discretion are similar to those governing the MCA
and the DPMCA. The court is to have regard to all the circumstances including:
u the income, earning capacity, property and other financial resources which the
applicant, the parents and the person in whose favour the order would be made,
has or is likely to have
u those persons financial needs, obligations and responsibilities
u the financial need, income, earning capacity (if any), property and other financial
resources of the child
u any physical or mental disability of the child
u the manner in which the child was being, or was expected to be, educated or
trained (paragraph 4).
Where the liability of a person who is not the childs legal parent is taken into account,
the court should also consider under Schedule 1 paragraphs 4(1) and 4(2):
u whether that person had assumed responsibility for the maintenance of the child
and, if so, the extent to which and basis on which he assumed that responsibility
and the length of the period during which he met that responsibility
page 112 University of London External System
u whether he did so knowing that the child was not his child
u the liability of any other person to maintain the child.
It is interesting to note that unlike other provisions within the CA the welfare of the
child is not the paramount consideration.
Other points (see Herring, p.182) are considered by the courts when making these
orders.
u The level of the award should not reflect the marital status of the parents.
u The child should be brought up in a way which is in some way commensurate with
the non-residential parents lifestyle.
u The court should be wary of making an award which will benefit the resident
parent but not the child.
u The parent will only be liable to support the child during that childs minority.
u If a step-parent is being considered for liability, then the courts will have to
consider any biological children that step-parent has.
u If the applicant is a disabled adult, they can claim against their parents. Under the
CA any expenses will be considered. This differs to the Child Support Acts where
only expenses directly relating to the disability are available.
Activity 7.2
What is the justification for the childs welfare not being the paramount
consideration in financial orders made under the Children Act 1989?
Duration and age limits
Similar restrictions on granting financial provision for children over 18 apply as under
the MCA (Schedule 1 paragraph 3). These do not affect applications by persons over 18
under paragraph 2. Periodical payments orders payable to a parent of a child cease to
have effect if the parents live together for more than six months (paragraph 3(4)). All
orders for periodical payments cease to have effect on the death of the person liable
to make payments under the order (paragraph 3(3)).
Applicants
The following people may apply for a financial order in respect of a child.
u A parent, including an adoptive parent and both parents of an illegitimate child. A
parent is defined to include any party to a marriage (whether or not subsisting) in
relation to whom the child is a child of the family (paragraph 16(2)). This includes
step-parents.
u A guardian.
u Any person in whose favour a residence order is in force with respect to a child.
u A child over 18 who would be or is receiving instruction at an educational
establishment or undergoing training or is subject to special circumstances
(paragraph 2). No order may be made under this paragraph where the applicants
parents are living in the same household and the courts powers are confined to
periodical payments and lump sum orders.
Financial orders may also be made even though there has been no application on the
making, varying or discharge of residence orders and where the child is a ward of court
(paragraph 1(6)).
Family law 7 Child support and the Child Support Acts page 113
7.3 The Child Support Act 1991
7.3.1 Background and development
The impetus for this legislation, which came into force on 5 April 1993, was twofold.
u The system of private law outlined above was perceived to be, in many respects,
ineffective.
u The government was concerned at the growing volume of state expenditure on
welfare benefits for one-parent families.
The background to the Act was as follows.
u 1974: The Report of the Committee in One-Parent Families (Cmd. 5629) (Finer Report)
which recommended that maintenance for children and spouses should be assessed
by administrative means and enforced by civil servants.
u 1988: Australian Child Support Act. Evaluation of the Australian scheme, introduced in
two stages in 1988 and 1989, revealed that the new scheme was much more efficient
at enforcing payment of reasonable maintenance than a court-based system.
u 18 July 1990: The Prime Minister announced the Child Maintenance Review against
the background of concern about the shortcomings of the then court-based system.
These shortcomings were perceived as arising from three factors.
u The large number of births to young single mothers where no effort was made to
recover maintenance from the father.
u Demands on the social security budget caused by the increasing rate of marital
breakdown and financial settlements involving former matrimonial homes, under
which absent parents were not required to pay realistic maintenance.
u Courts which appeared to have lost sight of the taxpayer as an interested party
in financial provision cases. See, for example, Delaney v Delaney where the wifes
entitlement to welfare benefits was taken into account by the court as a resource.
In her statement, the then Prime Minister announced that she intended to set up
a Child Support Agency with access to the information necessary to trace absent
parents and make them accept their financial obligations. The Agency would
assess maintenance through a standard administrative formula.
u 1990: Child Maintenance Review Discussion Paper.
u 1990: White Paper, Children Come First (Cmnd. 1264).
u 1991: Maintenance Enforcement Act.
u 1991: Child Support Bill (given Royal Assent 25 July 1991).
7.3.2 Aims of the Act
These are the aims as spelled out in the White Paper Children Come First, vol. 1, page i.
u ...parents [must] honour their responsibilities to their children whenever they can
afford to do so
u ...a fair and reasonable balance is struck between the liable parents responsibilities
for all the children he or she is liable to maintain
u ...the system produces fair and consistent results
u ...that maintenance payments are reviewed regularly to reflect changes in
circumstances
u ...parents incentives to work are maintained
u ...the public receive an efficient and effective service
u ...dependence on Income Support is reduced.
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The long title of the Act is:
An Act to make provision for the assessment, collection and enforcement of periodic
maintenance payable by certain parents with respect to children of theirs who are not in
their care; for the collection and enforcement of certain other kinds of maintenance and
for connected purposes.
7.3.3 General principles of the legislation
The duty to maintain:
Section 1(1): Each parent of a qualifying child is responsible for maintaining him.
Section 1(2) ...an absent parent shall be taken to have met his responsibility to maintain
any qualifying child of his by making periodical payments of maintenance with respect to
the child of such amount and at such intervals, as may be determined in accordance with
the provisions of the Act.
Qualifying child, absent parent, person with care: s.3 CSA
A child is a qualifying child if:
u one of his or her parents is, in relation to him or her, an absent parent
u both of his or her parents are, in relation to him or her, absent parents (s.3(1)).
For the purposes of the Act, a child is defined as:
u a person under 16
u a person under 19 receiving full-time education (which is not advanced education)
by attending a recognised educational establishment or elsewhere, if the
education is recognised by the Secretary of State
u a person who is under 18 and fulfils certain prescribed conditions (s.55(1) CSA).
Further, a person cannot be a child if he or she is or has been married or has been
party to a void marriage or a marriage in respect of which a decree of nullity has been
pronounced.
The parent of any child is an absent parent in relation to the child if that parent is not
living in the same household as the child and the child has his or her home with a
person who is, in relation to him or her, a person with care (s.3(2) CSA).
A parent is defined as any person who in law is the mother or father of the child (s.54):
in other words, the natural, adoptive or s.30 Human Fertilisation and Embryology Act
1990 (HFEA) mother or father of the child. This is subject to HFEA, ss.27 and 28. Thus,
the birth mother is the parent of the child within the CSA 1991 and the person who
provides the sperm resulting in the child is the childs father, except where the child is:
u born to a married couple as a result of Artificial Insemination by Donor (AID),
embryo transfer or egg donation, in which case the husband of the wife is regarded
as the father of the child, unless it is proven he did not consent (s.28(2) HFEA)
u born following licensed fertility treatment to a woman and her partner, in which
case her partner is treated as the childs father, unless it can be proven he did not
consent (s.28(3) HFEA).
Further, a donor of sperm for the purposes of treatment services under HFEA is not
treated as the childs father and thus is not the childs father for the purposes of the
CSA. Finally, the paternity and entry on the birth register presumes that, at the outset,
the husband of the mother of a child and/or the man registered as the childs father
is the childs parent within the CSA. It is to be noted that the concept of child of the
family does not appear in the CSA. Such a child is not a qualifying child in relation to
any treating non-natural parent (i.e. donator of the sperm) within the meaning of the
CSA. However, such a child does not lose his or her right to be maintained under the
pre-CSA law.
Family law 7 Child support and the Child Support Acts page 115
In their care
The person with care is a person:
u with whom the child has his or her home
u who usually provides day-to-day care for the child (whether exclusively or in
conjunction with another)
u who does not fall within a prescribed category of person (s.3(3) CSA).
Persons who cannot be prescribed as falling outside the definition of persons with
care are parents, guardians and persons who have residence orders in their favour
(s.3(4) CSA).
Regulations so far have prescribed only local authorities and local authority foster
parents as outside the definition of persons with care.
These complex provisions essentially mean that obligations are imposed on parents of
children where:
u they are the natural or adoptive parents of a child
u one or both of them does not live in the same household as the child
u the child lives with a person who provides care for him or her.
Summary
In addition to the MCA 1973, the CA 1989 gave the courts the power to provide financial
support for children, whether the parents were married or not. These powers have
been significantly reduced, however, since the introduction of the Child Support Act
1991. This legislation was introduced as a result of the perceived ineffectiveness of
existing financial provision and the government was becoming increasingly concerned
about the amount of state expenditure on (typically) single mothers where the errant
father had deserted them and not provided any financial support for the deserted
child. The principles of the Act and the amendments made in 1995 and 2000 are
administered by the Child Support Agency. This somewhat controversial body makes
an assessment of available income from the absent parent and then the state will
recover that amount to support the deserted child.
7.4 The welfare of the child
Where the Secretary of State, or any child support officer, in any case which falls to be
dealt with under the Child Support Act is considering the exercise of any discretionary
power conferred by this Act, he or she shall have regard to the welfare of any child
likely to be affected by his or her decision (s.2 CSA).
7.4.1 How maintenance is assessed
The Act introduces a maintenance formula prescribing the method of calculating the
maintenance payable in any particular case. This is administered by an administrative
agency, the power of the courts being excluded, and the right of appeal is limited.
The formula for establishing the basic rate of child support maintenance is the
following percentage of the non-resident parents net income of at least 200 a week
(with no account taken of weekly income over 2,000):
u 15 per cent where he has one qualifying child
u 20 per cent where he has two qualifying children
u 25 per cent where he has three or more qualifying children.
If the non-resident parent also has one or more relevant other children, the
appropriate percentage referred to above is to be applied instead to his net weekly
income:
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u less 15 per cent where he has one relevant other child
u 20 per cent where he has two relevant other children
u 25 per cent where he has three or more relevant other children.
There is a reduced rate for those who earn between 100 and 200 a week and a flat
rate of 5 for those who earn less than 100 a week.
The use of the formula essentially involves a series of mathematical calculations and
no element of discretion will be involved. Computer software is used for this process.
(You are not expected to be able to work your way through the formula!)
Procedure for obtaining assessment
According to s.4(1) a person who is, in relation to any qualifying child or qualifying
children, either the person with care or the absent parent may apply to the Secretary
of State for a maintenance assessment to be made under the CSA with respect to that
child or any of those children.
Where such an application is made, the applicant must, as far as is reasonable,
comply with any regulations made by the Secretary of State which aim to provide the
Secretary of State or child support officers with information that is required to enable:
u the absent parent to be traced
u the amount of child support maintenance payable by the absent parent to be
assessed
u the maintenance to be collected from the absent parent (s.4(4)).
Where a maintenance assessment has been made in response to an application under
s.4(1), the Secretary of State may, if the person with care or the absent parent makes
the application, arrange for collection and enforcement (s.4(2)).
Except where the person with care is in receipt of state benefit and s.6 applies, a
person with care need not take advantage of s.4 and may choose, rather, to enter
into a maintenance agreement (s.9(1)). This is an agreement for the making, or for
securing the making, of periodical payments by way of maintenance for the benefit
of the child. However, s.9 establishes that it is impossible to contract out of the CSA
system as the existence of a maintenance agreement does not prevent any party to
the agreement, or any other person, from applying for a maintenance assessment
under the CSA. Further, any provision within an agreement which purports to restrict
the right of a party to seek a maintenance assessment shall be void (ss.9(3) and (4)).
It is likely that many persons not in receipt of state benefit will use the CSA as there
are no other means available of securing maintenance from an absent parent who is
unwilling to pay.
Parents with care in receipt of certain state benefits are required to authorise the
Secretary of State to take action under the CSA to recover child support maintenance
from the absent parent (s.6). This obligation is waived only in those cases where s.6(2)
applies. This provides that the Secretary of State shall not require a person to give
him or her the required authorisation if he or she considers that there are reasonable
grounds for believing that there would be a risk to him or her or of any child living with
him or her, suffering harm or undue distress if the parent were required to give that
authorisation, or if he or she were actually to give it.
The obligation only applies in circumstances where the parent of the qualifying child is
the person with care. Where the person with care is not the parent (e.g. the guardian
or a non-parent with a residence order), they may make an application under s.4, but
they are not compelled to do so under s.6. Once the Secretary of State has received
authorisation within the terms of s.6(1) such authorisation extending to all the
children of the absent parent in relation to whom the applicant is the person with care
(s.6(4)), which must be given without unreasonable delay (s.6(5)) the parent with
care incurs various obligations.
Family law 7 Child support and the Child Support Acts page 117
Section 6(9) provides that the parent with care shall, as far as is reasonable, comply
with any regulations made by the Secretary of State. Regulations which have been
announced indicate that the required information includes:
u the habitual residence and name and address of the absent parent
u the name and address of any current or recent employer of the absent parent
u the name of any persons living in the same household as the absent parent.
The obligation to provide the information does not apply where s.6(10) applies, i.e.
in such circumstances as may be prescribed, or in circumstances (which again may
be prescribed) where the Secretary of State waives the obligation. So far, no such
circumstances have been prescribed.
Any parent with care who fails to comply with the obligations in s.6(1) or s.6(9) is
subject to sanction within s.46. A written notice is served on the parent requiring
him or her to comply. If the parent does not do so within a specified period, the child
support officer must consider whether, with regard to any reasons they may have
given, there are reasonable grounds for believing that, if the parent were to comply,
there would be a risk of them or any children living with them suffering harm or undue
distress as a result of complying. If a child support officer considers that such grounds
exist they shall take no further action, but if they do not, the officers may issue a
reduced benefit direction. Such a direction, which is subject to appeal, is provided for
by regulation. There is a two-stage reduction: 20 per cent of the personal allowance
for the parent for 26 weeks, followed by 10 per cent of the personal allowance for the
parent for 52 weeks.
7.4.2 The role of the courts
One of the fundamental objectives of the CSA is to remove the task of assessing child
maintenance from the courts and transferring this responsibility, together with
collection and enforcement, to the Child Support Agency.
In any case where s.8(3) applies, no court shall exercise any power which it would
otherwise have to make, or vary or revive, any maintenance order in relation to the
child and absent parent concerned. This applies in any case where a child support
officer would have jurisdiction to make a maintenance assessment with respect to
a qualifying child and their absent parent on an application duly made by a person
entitled to apply for such an assessment with respect to that child. In other words, in
those cases where a child support officer can make a maintenance assessment, the
court is excluded.
The court thus retains a role in the following situations.
u Where the child support officer has no jurisdiction, i.e. where:
u there is no qualifying child
u the child is between 17 and 19 and not in full-time education or is receiving
advanced education
u the child is over 19
u s.44 applies.
u Where s.8(6) applies, i.e. where:
u there is a maintenance assessment in force with respect to the child
u the amount of child support maintenance payable was assessed in accordance
with the alternative formula
u where the circumstances of the case make it appropriate for the absent
parent to make or secure the making of periodical payments order under a
maintenance order in addition to the child support maintenance payable in
accordance with the maintenance assessment.
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u Where lump sum and property adjustment orders are concerned.
u Where s.8(7) applies. Here the court is not prevented from exercising any power to
make a maintenance order with respect to a child if the child is, will be or would
be, receiving training at an educational establishment or undergoing training for
a trade, profession or vocation (whether or not in gainful employment). The order
must be made solely for the purposes of requiring the person making, or securing
the making of, periodical payments fixed by the order to meet some or all of the
expenses incurred in connection with the provision of the education or training.
u Where s.8(8) applies (orders for expenses of disabled or blind children). Here the
court is not prevented from exercising any power to make a maintenance order
in relation to a child if a disability allowance is paid to or in respect of them, or if
no such allowance is paid but they are disabled (s.8(9)). The order must be made
solely for the purpose of requiring the person making, or securing the making of,
the periodical payments to meet some or all of any expenses attributable to the
childs disability.
u Where there are orders against the person with care of the child. For example,
where a child applies under Schedule 1, paragraph 2 CA for a maintenance order
against the parent with care.
Activity 7.3
Mary and John have one son, James, aged 10. Mary and John divorced in 2003.
Should Mary apply to the Child Support Agency or to the courts for maintenance for
James?
Activity 7.4
Anne and David, who have never married, have just separated. Anne has two
children from a former marriage who are now aged seven and five. David, who used
to support the children, has told Anne that he will no longer do so. Should Anne
apply to the Child Support Agency or to the courts? Who will an order to maintain
the children be made against?
Summary
The Child Support Agency has the responsibility of administering the Child Support
Acts and this means that they assess and enforce the payments. The Acts provide a
formula which determines the liability of the absent parent. In making an assessment,
the Child Support Agency must have due regard for the welfare of the child. The
resident parent, or person who has the child in their care, can make an application
to the Secretary of State for a maintenance assessment. The courts will only become
involved in very particular circumstances as the whole aim of the scheme is to reduce
the role of the courts.
7.5 Child support in action
7.5.1 The case law
the CSA 1991 has been reformed to remove some of its more
draconian features.
The CSA 1995
In January 1995, the Social Security Secretary announced a package of reforms to the
CSA 1991 which have been enacted in the Child Support Act 1995.
The 1995 Act amended the Maintenance Assessments and Special Cases Regulations
1992. For example by providing, in Schedule 3(A), the so-called broad brush
allowances in calculating exempt income by taking into account a qualifying transfer
of the type which gave rise to the dispute in Crozier. Paragraph 10 of Schedule 3 sets
out the amounts allowed when computing exempt income. Schedule 3(B) provides for
allowances in respect of exempt income as regards travelling costs.
The 1995 Act also introduced departure directions (these are now called variations)
whereby a child support officer, on an application by the parent/person with care or
the absent parent, can make a new assessment which departs from the CSA formula,
thereby affecting the level of exempt or protected income. In Schedule 4(b) account
can be taken of:
u travel to work costs other than those which fall within Schedule 3(B)
u costs incurred in maintaining contact with the child
u costs attributable to the applicants long-term disability or illness
u financial obligations incurred before the breakdown of the marriage/relationship
for the benefit of the parties and/or the qualifying child
u pre-April 1993 commitments impossible or unreasonable to withdraw from (e.g.
life assurance policies, private school fees)
u costs incurred in supporting a child who is not the parents but is part of his or her
family
u pre-1993 court orders or agreements where the broad brush provisions are
inadequate
u the absent parents refusal to make income-producing use of capital assets
u where lifestyle appears to be inconsistent with declared income
u where housing or travelling costs are unreasonably high
u where the absent parent has a partner who should contribute to his or her housing
costs.
Even if the application for a departure direction falls within Schedule 4(B), the officer
must still take account of the matters in ss.25(e) and (f) in forming a judgment that,
in all the circumstances of the case, it would be just and equitable to give a departure
direction. Under Paragraph 30 of the Departure Direction Regulations 1996, account
can be taken of whether the giving of a direction would be likely to result in, for
example, the absent parent ceasing to be employed. On the other hand, no account
is to be taken of whether the conception of the child was unplanned, whether the
parent with care was responsible for the breakdown of the relationship or whether the
parent with care is refusing to allow contact with the child.
For an assessment under the CSA 1995, see Henderson v Secretary of State for Social
Security, TLR, 1 December 1998. In this case the Court of Appeal held that a transfer of
a share in the former matrimonial home (rather than necessarily an entire transfer)
was still a qualifying transfer for the purpose of affecting the absent parents exempt
income.
had been breached because she was excluded from seeking recovery of owed
child support from the non-resident parent because she was unable to gain access to
the court due to the agencys sole responsibility for recovery. She further argued that
the protracted delay in her case also breached her Article 6 rights. She was ultimately
unsuccessful but the case did focus the spotlight once more on the troubling
performance of the Agency to recover payments from absent parents.
Unfavourable publicity also continued when a rush of case law concerning the CSA
came to the House of Lords (See Secretary of State for Works and Pensions v M [2006]
UKHL 1; Farley v Child Support Agency [2006] UKHL 31; Smith v Secretary for Work and
Pensions [2006] UKHL 35).
A mother then decided to bring a negligence claim against the CSA for negligent
failure to deal with the assessment, collection and enforcement of maintenance owed
by the non-resident father (see R (Rowley and others) v Secretary of State for Work and
Pensions [2007] Civ 598). Her claim was ultimately unsuccessful at the Court of Appeal
but it became apparent that the Child Support Agency, despite numerous reforms, just
could not satisfy its remit in its present form.
Given this heightened review of enforcement powers and the failure of the reforms
undertaken by the CSPSSA 2000, it was not surprising when it was announced in
February 2006 that neither the agency nor the policy is fit for purpose. As a result a
Go to your study pack and
read Conclusion to Child
Support in Action by Gwynn
Davies and others.
Consider why further reform
of the Child Support Acts was
deemed necessary.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
7.1 Family maintenance outside the Child Support Acts
7.2 Financial provision during marriage
7.3 The Child Support Act 1991
7.4 The welfare of the child
7.5 The case law
7.6 Continued dissatisfaction and the road to further reform
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.1 What is cohabitation? . . . . . . . . . . . . . . . . . . . . . . . . . . 129
8.2 Legal differences between unmarried and married couples . . . . . . . 131
8.3 Same-sex couples: substance over form . . . . . . . . . . . . . . . . . 136
8.4 Discrimination or difference? . . . . . . . . . . . . . . . . . . . . . . 141
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
8 Cohabitation
page 128 University of London External System
Introduction
Evidence suggests that one in eight British couples is unmarried. This is because many
couples today choose to cohabit rather than to marry. Some couples are unable to
marry because they are homosexual and it is clear from the law that this particular
group often find themselves discriminated against on this basis.
Having explored what the law views cohabitation to be, this chapter will then consider
the existing differences between married and unmarried couples. The position of
same-sex couples will then be considered: this area of law has recently been reformed.
Interestingly, the reforms have meant that unmarried cohabiting heterosexual
couples are in a more vulnerable position than same-sex cohabiting couples who have
registered a civil partnership. A justification for this is that the law does not permit
same-sex couples to marry while this option is available to heterosexual couples.
In 1998 the government published a discussion paper entitled Supporting Families
(1998, Home Office) which outlines its commitment to strengthening marriage with a
view that marriage is the best relationship in which to bring up children. With this in
mind, the chapter will conclude by asking whether the law is right to draw distinctions
between married and unmarried couples. Does the law discriminate or simply
differentiate?
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain the way the law defines what is meant by cohabitation
u critically consider the legal differences between a married and an unmarried
couple
u analyse the status of same-sex couples and the reforms that have taken place in
recent years
u discuss whether the law seeks to discriminate or differentiate between married
and unmarried couples.
Essential reading
Herring, Chapter 2, pp.6192.
Masson et al., Chapter 3, pp.85112 and Chapter 7, pp.209229.
Probert, Chapter 1, pp.115.
Standley, Chapter 3, pp.5257.
Family law 8 Cohabitation page 129
8.1 What is cohabitation?
There has always been a difficulty in defining cohabitation because the law recognises
it can take so many different forms. A cohabiting couple could be two students living
together, it could be a boyfriend and girlfriend who are thinking about marrying or it
could be a couple who have lived together for many years and have decided never to
get married. The law has never been coherent in its treatment of cohabitees because
of these different forms of relationship. After all, should the couple who have lived
together for many years acquire more rights than the couple who are two students at
university? The law has never made the answer clear.
8.1.1 The need to define
There have been occasions when the law has had to consider the question of when
a couple are cohabiting for fear of causing real injustice against those who are
married. The main example is in the distribution of social security benefits. It would
be manifestly unfair if a spouses income was taken into account for the calculation
of income support but a cohabitees income was not considered for the purposes of
calculation. It would also involve the state having to pay substantially more money in
benefit and this is why an attempt at definition has had to be made.
The underlying policy of calculation of benefit is that where a couple live together
as husband and wife, the fact that they are not legally married should not make
their position either better or worse than a couple who are in fact married. Proving
this has often involved secret investigations on behalf of the state to ascertain who
cohabits and who does not. It has been necessary to formulate some criteria for
these procedures: guidance for the assessment of social security benefit can be found
in the Adjudication Officers Guide, which is amended from time to time. For our
purposes, case law has proven most useful at showing us what criteria the law views as
important when defining cohabitation.
8.1.2 A working definition?
The leading case for the purposes of ascertaining if cohabitation is taking place
is Kimber v Kimber [2001] 1 FLR 383. While this case concerns the cessation of
maintenance under the Matrimonial Causes Act 1973, the criteria formulated are useful
guidance in terms of providing a working definition of cohabitation. In Kimber, Tyrer
J suggested that questions to ask when considering whether a couple are living as
husband and wife would include the following.
u Are the parties living together under the same roof? If the parties live together
in the same household and are only absent for the purposes of illness, holidays or
work then they are living under the same roof.
u Do the couple share in the tasks and duties of daily life? If the parties share
mutuality in the daily round of tasks and duties then this question is answered in
the positive.
u Does the relationship have stability and permanence? The question to be asked
is whether the living together is a brief association? Has a child been born to
the parties living together? Are the couple just sharing on an occasional basis?
Often time will demonstrate whether the relationship has some stability and
permanence.
u How have the parties arranged their finances? Is there any financial support from
one of the parties to the other? Do the parties share household expenses? Of
course people can share household expenses and not be a cohabiting couple and
people can also live together in relationships where one party pays for everything.
Any evidence will be considered by the court.
u Do the parties have an ongoing sexual relationship? A sexual relationship is a
normal feature of a marital relationship and so this is something for the courts to
consider. Its absence at a particular time will not disprove cohabitation, just as its
page 130 University of London External System
presence at a particular time would not prove it. The key question is whether there
has ever been a sexual relationship? If not, the courts would be unlikely to view a
couple as cohabiting.
u Have the parties got children? And how do the parties act towards each others
children if such children are present? Here the courts will consider whether the
parties share children. This is evidence of prior sexual relations and living together
as a married couple with a family in all but name. If one party has children which
the other party looks after or appears to operate as a surrogate parent, then this
too would be evidence to support cohabitation.
u Finally, would the reasonable person with normal perceptions, looking at the
couples life together, deem this to be an unmarried cohabiting couple? This is a
question of public acknowledgement. Do the parties present themselves to other
parties as a couple? If they do, this may not mean they are presenting themselves
as a married couple as they may want to retain their identity as an unmarried
couple. Such motivation will not prevent them being regarded as a cohabiting
couple for the purposes of the law.
The message from these criteria seems to be that the courts, when pressed, will
consider substance over form. If it appears that a couple are acting, whether overtly
or covertly, as a married couple then the law will consider the household income. The
problem as we shall see later on is that if couples are to be treated as cohabitees
when it suits the state, then surely this should also be the case when it does not suit
the state. If the state gains a benefit but is not prepared to bear the burden, then
we have to consider whether any existing distinctions are there to discriminate or
differentiate.
Self-assessment questions
1. What different forms can cohabiting couples take?
2. Why has the law had, on occasions, to define cohabitation?
3. What criteria does the case of Kimber use to suggest a couple are cohabiting?
Activity 8.1
Julian and Sue live together in a three-bedroom house. They have done so for eight
years. Julian has a child, Little Tim, who also lives in the house. Julian and Sue have
separate bedrooms. They often go out together for their leisure activities. People
who dont know them often think they make the perfect couple. They share the
household expenditure and Sue often collects Little Tim from school. Sue regularly
does the household shopping.
Recently, Sue became unemployed and decided to apply for state benefit. Under
the criteria established in Kimber v Kimber [2001], would the courts be able to take
Julians income into account when deciding on the amount of state benefit to grant
Sue?
Summary
The law has always struggled to define what is meant by cohabitation due to the
varying types of relationship which could fit under this umbrella term. Despite this
difficulty the law has been prepared to attempt a definition in the area of assessment
for state benefit. The criteria used include membership of same household, sharing
daily life, stability, financial support, sexual relationship, children and public
acknowledgement. Such criteria are useful to see what the state regards as hallmarks
of a cohabiting relationship.
Family law 8 Cohabitation page 131
8.2 Legal differences between unmarried and married couples
The following provides a summary of the legal differences between unmarried and
married couples.
8.2.1 Formalities at the end of a relationship
By virtue of the law of nullity and divorce it becomes clear that the law closely
regulates the beginning and end of a marriage. The same cannot be said about an
unmarried couple. There is no formal register of cohabiting couples, similar to a
marriage register, and so the state has no part to play in the beginning or end of such
a relationship. This means that the law, unlike with marriage, can take no regulatory
position as to who cohabits with whom. Such formalities are there but they should not
be viewed as at all restrictive and it would be nave to overestimate their importance.
It is not hard to get married and it is not hard to get divorced. It cannot be said these
formalities are the most important concerns to any couple whether it be upon
marriage or divorce.
8.2.2 Children and parentage
Until the Family Law Reform Act 1987 the distinction between legitimate and
illegitimate children was still clear. Such distinctions now rarely exist and yet the
position of the unmarried father is still very different to that of the married father.
When you consider parentage in Chapter 9 of this subject guide you will see that a
married father is afforded greater status than an unmarried one. Every mother has
parental responsibility and a married father will also automatically gain parental
responsibility. An unmarried father does not gain parental responsibility automatically
unless he is registered on the childs birth certificate. If he is not registered then he
must lodge a parental responsibility agreement at the court or he has to apply to
the court under s.4 CA to gain a parental responsibility order. The division is of more
symbolic than practical significance. Courts are keen to grant such orders and any
need for parental responsibility will usually only appear if there is a dispute about
medical treatment or the childs upbringing. The justifications for such a distinction
can be found in Chapter 9.
8.2.3 Financial support
The law concerning financial provision both during and at the end of a marriage
does not apply to cohabiting couples. Masson et al. identify a common law duty to
maintain a spouse but there is no method of enforcing this obligation. On divorce,
however, the court has the power to make significant declarations as to the allocation
of property and of parties assets. All that an unmarried couple can do upon separation
is seek a declaration from the court as to who owns what property. The devices used
to make such calculations are usually equitable and can see unmarried couples
property divided the same way as that of married couples would be. Although there
is a wide operation of discretion for the division of assets under the MCA, the rules
in equity demand far more discretion and conduct may play a far greater part in its
enforcement. Therefore, a distinction does remain. That said, liability under the Child
Support Acts for the maintenance of children applies to both married and unmarried
parents.
It has become more popular in recent years for cohabiting couples to enter into
binding cohabitation contracts which can be court enforced. The status of these
contracts and when they will be enforceable was discussed by Charles J in Sutton v
Mischon de Reya [2004] 3 FCR 142.
page 132 University of London External System
8.2.4 Inheritance and succession
When a party dies intestate (that is, without having made a will) then all property
passes to the spouse. If there is no spouse, but only a cohabitee, then no such
automatic passing of property takes place. To effect this passage, the party would have
to apply under the Inheritance (Provision for Family and Dependents) Act 1975 for an
order which would then grant them a portion of the estate. They must have cohabited
for two years. This means that if a party to a relationship is bereaved, they have to gain
a court order to put them in the same position as a married couple.
8.2.5 Matrimonial property
Under s.30(1) FLA 1996 married couples are provided with matrimonial home rights.
These include the right to enter or occupy the matrimonial home. Under s.336 of the
Insolvency Act 1986 protection is afforded to the occupation rights of a bankrupts
spouse. The Welfare Reform and Pensions Act 1999 allows a pension to be shared upon
divorce. These matrimonial property rights are not available to cohabitants upon the
breakdown of their relationship. In addition, a widows pension is only available to a
married woman. There is no equivalent for unmarried women.
8.2.6 Taxation and benefits
If a spouse dies then his or her property can pass to the living spouse without being
subject to any inheritance tax under s.18 Inheritance Tax Act 1984. This provision was
always useful to avoid a situation where, upon death of her husband, a wife would
have to sell the matrimonial home to pay inheritance tax. The same is true for capital
gains tax where a transfer between spouses does not give rise to a chargeable gain
under s.32 Finance Act 1988. These benefits are not afforded to unmarried couples and
the European Court of Human Rights has confirmed that the UK does discriminate
against unmarried fathers when it comes to taxation (see M v UK (Application No
6638/03) The Times, July 19, 2005).
Activity 8.2
Do you think the law ought to permit the transfer of the matrimonial home without
liability arising for inheritance tax under the Inheritance Tax Act 1984?
No feedback provided.
8.2.7 Citizenship
If you are not a citizen of the UK or one of its colonies, then you do not acquire
citizenship just because you marry someone who is a citizen. This law is governed
by the British Nationality Act 1981. There are various methods of naturalisation (with
which you do not have to concern yourself) but, needless to say, requirements for
naturalisation of a spouse are less restrictive, under s.6(2) and Schedule 1, paragraph
3 of the British Nationality Act 1981, than for other people. A cohabitant would find it
more difficult to become naturalised than a spouse would. There is a requirement for
leave to enter the UK and remain, which in practice is often given to a spouse. Such
leave is not so easy to obtain for a cohabitant.
8.2.8 Statutory succession to tenancies
Statute provides rights to a tenants family so that they may succeed to the tenancy
upon death of the tenant. Family was initially interpreted by the Court of Appeal
in Fitzpatrick v Sterling Housing Association [2000] AC 27 not to include homosexual
couples. The House of Lords reversed this position [2000] 1 FCR 21. Family and
husband and wife applies to heterosexual and homosexual cohabitants or same-sex
or heterosexual couples. No distinction is now made between married and unmarried
couples and this was confirmed in Ghadain v Godin-Mendoza [2004] 2 FCR 21.
Family law 8 Cohabitation page 133
8.2.9 Domestic violence
The Family Law Act 1996 provides a remedy of an occupation order or non-molestation
orders for victims of domestic violence. Both married couples and cohabitants are
associated persons under s.42 FLA 1996 as amended by the DVCVA 2004, and so can
apply for the non-molestation injunction. Cohabitants can also apply for an occupation
order under s.33 or s.36 FLA. A s.33 order is easier to acquire because it applies to
people who have proprietary rights in the property. These rights are not required in
s.36 but it will be more difficult to gain these orders without those rights.
8.2.10 Fatal Accident Act 1976
The Fatal Accident Act 1976 allows a spouse of a deceased person killed in an accident
to claim damages under certain specific circumstances. A cohabitant will be able
to qualify for compensation but only if he or she has lived with the deceased as an
unmarried couple in the same household for a specified period, which at present is
two years. No such restriction is placed upon a married couple.
Activity 8.3
Trisha lives in Trishas flat with Marcus and their one-year-old child Ben. The
couple are not married. One day there is a motorcar accident. Trisha and Ben were
passengers in the car. Trisha died at the scene and is intestate and now the hospital
has to operate on Ben.
What problems can you foresee emerging as a result of Trisha and Marcuss unmarried
status?
8.2.11 Criminal law
There are some differences in the criminal law between married and cohabitant
couples. Some of the key differences are no longer in place but some are still apparent.
Rape
The law used to state that a man could not rape his wife (i.e. that forced intercourse
with ones wife did not constitute rape). This marital exemption to the law of rape was
abolished in R v R (Rape: Marital Exemption) [1991] 4 All ER 481. The Criminal Justice and
Public Order Act 1994 confirmed this abolition. There appears now to be no difference
between the rape of a wife and the rape of a stranger, although evidence suggests that
marital rapists receive lower sentences that non-marital rapists.
Actual bodily harm
Two cases in the 1990s gave rise to the immediate and arguably simplistic view that a
person could occasion actual bodily harm upon a person under s.47 if they were part
of a married couple (R v Wilson [1996] 3 WLR 125), but could not if they were a group of
gay men indulging in sado-masochistic activities (R v Brown [1993] 1 AC 212). The case
of R v Emmett (unreported) suggests that no such distinction can be sustained and the
law appears to frown upon anyone inflicting injuries upon another unless it falls within
a lawful exception.
Coercion to crime
If a wife commits a crime due to threats from her husband, then she may plead the
defence of coercion under s.47 Criminal Justice Act 1925. This is not permitted for
crimes of murder or treason. The defence is analogous to duress although unlike
duress there need be no threat of death or serious injury there just needs to be
evidence that the wife was acting as a result of the husbands coercion. The case of
R v Court [1912] 7 CAR 127 indicates that this defence is not available to an unmarried
couple.
page 134 University of London External System
Theft
The Director of Public Prosecutions must give consent to any prosecution for theft by
a husband or wife against their spouse. This consent is required under s.30 Theft Act
1968. No such consent is required for the prosecution of a cohabitant.
Conspiracy
Under s.2(2)(a) Criminal Law Act 1977 a person cannot be guilty of conspiracy if the
only person they have an agreement with is their spouse. If it can be proven that
the conspiracy was with their spouse and other people then a crime will have been
committed. No such restriction is in place for an unmarried couple.
Activity 8.4
Jane and George, Frances and David were two married couples at a party at the
home of Sue and Ray, another married couple. At the party George becomes jealous
of Jane flirting with David and takes her to a bedroom and forces her to have sexual
intercourse with him. Meanwhile Frances and David agree they do not like George
and will try and persuade the local mechanic to tamper with the brakes of Georges
car so that George will, at some stage, be at least injured in a car accident. At the
party David says to Sue that he really likes Rays designer watch. As Sue fancies David
she craftily manages to take it from Ray and give it to David. Following the sexual
intercourse Jane and George return to the party. George likes the watch that David
has just put in his pocket and he tells Jane to get that watch for him. While this is
going on, Angela and Mark, another married couple, are having violent sex in Sue
and Rays bedroom. Angela likes sex to be a bit rough and Mark places a plastic bag
over her head and sets fire to her left breast with lighter fluid. She suffers severe
burns but assures everyone that she likes it like that.
Discuss how being married, or not, has an impact on any criminal charges which
may be brought against George, Jane, Frances, David, Sue and Mark.
8.2.12 Law of obligations
The distinctions which used to exist between married and unmarried couples for
the purposes of actions in tort no longer exist. The position in the law of contract
is still notably different when it comes to pre-nuptial type agreements. Under the
present law a signed pre-nuptial agreement is unlikely to be upheld if it unreasonably
interferes or tries to fetter the jurisdiction of the divorce court under the MCA. Any
agreement signed by an unmarried couple, however, could easily determine what will
happen to their property if the relationship should break down.
8.2.13 Marital confidences
Since Argyll (Duchess) and Argyll (Duke) [1967] Ch 302 it has been clear that the
law does protect confidences between married couples. The Duchess of Argyll
successfully prevented her husband from publishing the secrets of her life which
she had communicated to him during their marriage. Such protection is extended
to cohabiting couples as seen in the case of Stephens v Avery [1988] Ch 449. The
protection of such information must now be considered in light of the Human Rights
Act and Article 8 of the Convention (see Douglas v Hello! Ltd [2002] 1 FCR 289).
8.2.14 Evidence
Under the present law in criminal proceedings a spouse is a competent, i.e. is able to
give evidence, but is not compellable, i.e. he or she cannot be forced to give evidence
or be a witness against the other spouse. There are exceptions to this rule governed
by s.80 Police and Criminal Evidence Act 1984 which makes a spouse compellable
if the offences are of a violent or sexual nature and committed against children
under 16. In civil proceedings a spouse is both competent and compellable to give
evidence against his or her spouse. Historically, a spouse was neither competent nor
compellable for fear of interfering with marital harmony and the bias of the evidence
Family law 8 Cohabitation page 135
given. These rules have been gradually diminished in times of social change. The
case of R v Pearce [2001] EWCA Crim 2834 confirmed that these rules do not apply to
cohabitants. They will be competent and compellable in all cases regardless of their
status as a cohabitant.
Activity 8.5
Soriya and Amandeep have been married for five years. Amandeep has recently
been charged with the theft of a car and the rape of a 14-year-old girl. Soriya knows
he is guilty because, in a distressed state, he told her immediately afterwards.
The Prosecution wish to call Soriya as a witness. Can they do so? Would your answer
be different if Soriya and Amandeep were unmarried?
8.2.15 Theoretical differences: unity and consortium
The final differences documented here are of a theoretical rather than a practical
nature.
First, the doctrine of unity is now thought to be of very limited application. It was
presented in accordance with the doctrine of one flesh which argues that upon
marriage a husband and wife become one. This doctrine is a legal fiction and has been
inconsistently applied. The common law and statute have reduced its significance.
Little of it remains, although in 1945 it was used by magistrates to acquit a man of
using his wifes non-transferable railway ticket as they were one and the same person
(see G Williams, 10 MLR 16). Also in 1978 in Midland Bank Trust Co. Ltd and Another v Green
and Another (No 3) [1982] Ch 529 CA the courts had to decide whether it was a good
defence to a tort action in conspiracy that those involved were husband and wife and
thus one person. While of limited importance now, we shall have to see whether it
would be argued successfully in a contemporary case.
There also exists a troublesome concept entitled consortium. The contemporary
significance of the concept is hard to see but the common law doctrine suggests that
husband and wife become entitled to one anothers consortium, which is the right to
the others society, assistance, comfort and protection. It has been described by Lowe
and Douglas (1998) as an abstract notion which appears to mean living together as
husband and wife with all the incidents that flow from that relationship. The common
law system appears to allow, although it rarely utilises, a sense that a husband-and-
wife couple are to be treated differently: as a special relationship. The existence of
this doctrine was confirmed by Munby J in Sheffield CC v E and S [2004] EWHC 2808
(Fam). This concept is a particularly symbolic one to conclude with, as there is no such
doctrine for cohabiting couples.
Self-assessment questions
1. What regulatory position does the law take with cohabiting couples?
2. How significant is marital status of a couple for the upbringing or adoption of
children?
3. What financial, proprietary and residence benefits are acquired by a married
person over a cohabiting person?
4. How does the law governing domestic violence differ for married and
unmarried couples?
5. What difference is there in the way the Fatal Accidents Act 1976 operates for
married and unmarried persons?
6. In what ways does the criminal law, law of obligations and confidences
distinguish a married person from an unmarried cohabitant?
7. What distinctions does the law of evidence draw between a spouse and an
unmarried cohabitant?
8. Do the doctrines of unity and consortium have any contemporary relevance?
page 136 University of London External System
9. What is the doctrine of unity?
10. What benefit does a married couple have under the Inheritance Tax Act 1984?
Summary
The law does, in certain important circumstances, make a distinction between married
and unmarried couples. The law does not involve itself at the beginning or end of an
unmarried couples relationship, whereas the formalities of marriage and the laws of
nullity and divorce do regulate the formation and conclusion of a married relationship.
The status of a couple does influence the laws response to decisions concerning a
childs upbringing or even their adoption (see Chapter 14). The law grants additional
rights and benefits to spouses in the areas of property, residence, finance, taxation and
inheritance. Spouses are arguably more protected by laws concerning domestic
violence and can recover compensation more readily under the Fatal Accidents Act
1976. In substantive areas of law such as confidences, obligations and crime
distinctions are made. The law of evidence also draws a line between those couples
who are married and those who are not. Finally, the doctrines of unity and consortium,
although of little practical significance, do provide a symbolic indication of the
traditional view of the law which manifests itself in so many different ways.
8.3 Same-sex couples: substance over form
It is clear from the previous section that the law does distinguish between those who
are married and those who are unmarried. Such distinctions are often difficult to
justify. One area where it was historically difficult to justify was in cases where
same-sex couples were involved. You will recall from the law concerning void
marriages that, in order to marry, two parties must be respectively male and female.
Same-sex couples cannot, under English law, marry.
In other EU countries
the position on same-sex
marriages varies greatly. In
June 2004, the mayor of a
small French town carried out
a marriage between two men.
This was unlawful, and was
evidently a stunt to publicise
the issue. The authorities
threatened the mayor with
prosecution.
Family law 8 Cohabitation page 137
In a powerful speech Baroness Hale argued:
My Lords, it is not so very long ago in this country that people might be refused access
to a so-called public bar because of their sex or the colour of their skin; that a woman
might automatically be paid three quarters of what a man was paid for doing exactly the
same job; that a landlady offering rooms to let might lawfully put a no blacks notice in
her window. We now realise that this was wrong. It was wrong because the sex or colour
of the person was simply irrelevant to the choice which was being made: to whether he
or she would be a fit and proper person to have a drink with others in a bar, to how well
she might do the job, to how good a tenant or lodger he might be. It was wrong because
it depended on stereotypical assumptions about what a woman or a black person might
be like, assumptions which had nothing to do with the qualities of the individual involved:
even if there were any reason to believe that more women than men made bad customers
this was no justification for discriminating against all women. It was wrong because it
was based on an irrelevant characteristic which the woman or the black did not choose
and could do nothing about. When this country legislated to ban both race and sex
discrimination, there were some who thought such matters trivial, but of course they
were not trivial to the people concerned. Still less trivial are the rights and freedoms set
out in the European Convention. The states duty under Article 14, to secure that those
rights and freedoms are enjoyed without discrimination based on such suspect grounds,
is fundamental to the scheme of the Convention as a whole. It would be a poor human
rights instrument indeed if it obliged the state to respect the homes or private lives of one
group of people but not the homes or private lives of another.
Only Lord Millet dissented on the grounds of what he saw as a question of
constitutional importance.
I have the misfortune to be unable to agree with this conclusion. I have given long and
anxious consideration to the question whether, in the interests of unanimity, I should
suppress my dissent, but I have come to the conclusion that I should not. The question is
of great constitutional importance, for it goes to the relationship between the legislature
and the judiciary, and hence ultimately to the supremacy of Parliament. Sections 3 and 4
of the Human Rights Act were carefully crafted to preserve the existing constitutional
doctrine, and any application of the ambit of section 3 beyond its proper scope subverts
it. This is not to say that the doctrine of Parliamentary supremacy is sacrosanct, but only
that any change in a fundamental constitutional principle should be the consequence of
deliberate legislative action and not judicial activism, however well meaning.
Such constitutional concerns by Lord Millet were allayed when the Civil Partnerships
Bill became the Civil Partnership Act 2004 and the legislation has had a far-reaching
legal effect. The Act creates a new legal status of civil registered partner for same-sex
couples and brings English law into line with that of The Netherlands, Belgium, parts
of Canada, Denmark, Sweden, Portugal, Spain and Germany. It grants various rights
and responsibilities to those homosexual partnerships which have been registered.
Like marriage, it has certain formalities which need to be in place and each registered
partnership has, upon breakdown, to be dissolved by the court in the same way as a
marriage is by divorce. If a registered partner dies, then the restrictions on intestacy
which exist for cohabitants are extended to registered partners. This scheme, in many
ways, is marriage in all but name although there are some notable differences.
u Although formalities are required for a civil partnership to be registered they are
not the same as for marriage. Marriage involves the exchanging of vows whereas
the registration process merely requires the signing of the register.
u There are no non-consummation grounds for the annulment of the civil
partnership (see Chapter 2).
u The fact of adultery cannot be used as evidence of irretrievable breakdown of a
civil partnership (see Chapter 3).
u If a woman receives assistance from a licensed clinic in order to secure pregnancy
then her husband, if he has consented, will be regarded as the father of the child.
Such recognition is not afforded to civil partners.
page 138 University of London External System
As the Civil Partnership Act 2004 is said to create marriage in all but name the previous
distinctions between unmarried and married couples can now said to be distinctions
between married couples, civil partners and unmarried couples or unregistered
partners.
In addition to the areas discussed above (where lines were drawn between married,
civil partners and cohabiting couples) we shall now consider the areas where the law
draws a distinction between married heterosexual or civil partners and homosexual
couples who have not registered their civil partnership. The difficulties remaining have
diminished in recent years and therefore would now appear to be of substance rather
than form.
8.3.1 Children upon separation
If a heterosexual couple with children splits then the courts will have to adjudicate as
to the residence requirements of the children if there is any dispute. If one of the
parents has formed a homosexual relationship, then this will be a factor considered by
the courts. When making decisions about a childs upbringing the courts paramount
consideration is the welfare of the child. This means that while a court can grant
residence to a mother or father in a homosexual relationship, they will not do so if the
court feels it is not in the childs best interest. The operation of this discretion has led
to some controversial comments.
In C v C (A Minor) (Custody: Appeal) [1991] 1 FLR 223 a couple had split and the father
had remarried while the mother had entered into a lesbian relationship. The Court of
Appeal made the point that if the childs house was to be with the father that would
be a normal home by the standards of our society; that would not be the case if the
home were with the mother. The court in B v B (Minors) (Custody: Care and Control)
[1991] 1 FLR 402 viewed any change from normal household to abnormal household
to be important for two reasons. First, children in an abnormal household might be
teased at school and, secondly, the children might suffer confusion over their sexual
orientation or gender identity. In this case the court was satisfied this would not
happen because the mother was not a militant lesbian and she had male friends
who could be role models for the son. In addition, the child looked very boyish. Such
narratives from the case law simply support the stereotypes some judges have and
which will often influence their decisions. What if the mother had been a militant
lesbian? Would they have granted residence to the father if the mother had been
a militant communist or a militant religious despot? It is unlikely this would have
affected the courts decision. Many things can be justified for the welfare of the child.
These decisions will have to be reconsidered in light of the Human Rights Act 1998 as
Article 14 of the European Convention on Human Rights prohibits discrimination on
the basis of sexual orientation. This was raised as an issue in Da Silva Mouta v Portugal
[2001] 1 FCR 653 where the judgment of the Lisbon Court of Appeal was held to be
in breach of the Convention when it refused to grant parental responsibility to a
homosexual father on the basis that homosexuality was an abnormality and children
must not grow up in the shadow of abnormal situations.
It would appear the courts have become more enlightened in recent years as
demonstrated by Baroness Hales discussion in Re G (Children) [2006] UKHL 43.
However, if Helen Reece is to be believed,
Bailey-Harris, R. Same-
sex partnerships in English
family law, in Wintemute,
R. and M. Andenaes, (eds)
Legal Recognition of Same-
Sex Partnerships: a study
of national, European
and international law.
(Oxford: Hart, 2001) [ISBN
9781841131382].
page 142 University of London External System
8.4.2 A need to differentiate?
The above list provides a strong case as to why there needs to be an end to
discrimination. We now need to consider whether, in bringing an end to that
discrimination, there is room for any form of differentiation between married and
cohabiting couples. As Herring (2007) suggests, there are arguments favouring
differentiation.
State benefit
We have already highlighted the view taken by the government in its 1998 Green
Paper called Supporting Families. In this paper the government made clear its view that
Marriage does provide a strong foundation for stability for the care of children. The
government appears to believe that marriage should be promoted over other forms
of personal relationship because it provides a strong foundation. How is this so? We
know of no society without marriage, so we cannot now consider a world without it.
Secondly, the government wants to promote families as a way of producing and caring
for children. Thirdly, the state wants to involve itself at the beginning and end of the
relationship. Fourthly, the state may wish to make out economic support for this claim.
If one person is ill, then the other party could support their partner. This would not be
the case if the party was unmarried. Finally, it is argued that marriage can be used as an
effective evidential tool to regulate family life. Alternatives would be available but this
current approach is easy and straightforward and the ease with which the benefits of
marriage have been extended to civil partners does demonstrate this.
Choice
It can be argued that if a couple choose not to marry or register a civil partnership or
refuse to marry or register a civil partnership then it is wrong for the law to treat
them as if they were married: this would negate their choice not to be married or
party to a civil partnership. This argument is not without its critics but it does make an
interesting point and one which the law should be careful not to dismiss.
Current attitudes
If the law should reflect current attitudes, then it should view cohabitation as an
acceptable relationship to be in. Society does not differentiate between a married
and unmarried couple so it is difficult to see how the law could justify its attempt to
distinguish between the two states.
Abolition?
It has been argued that if there is no need to differentiate then perhaps we should
abolish the institution of marriage so that the status of a cohabiting couple is the same
as that of a married couple. Marty Slaughter (2002)
Slaughter, M. Marital
bargaining in Maclean, M.
(ed.) Making Law for Families.
(Oxford: Hart, 2000) [ISBN
9781841132051].
Family law 8 Cohabitation page 143
Questions for debate
1. What interest does the state have in ending the discrimination against married/
civil partners and unmarried/unregistered couples?
2. In what ways does the state benefit from people being married/civil partners
rather than cohabiting?
3. Should we treat cohabitants the same as married couples or civil partners if they
have chosen not to get married?
4. If society accepts the existence of cohabiting couples then should the law avoid
differentiation between married/civil partners and unmarried couples?
Summary
In this section we have considered the arguments for an end to discrimination but
have also considered arguments that would support some form of differentiation.
If the law treats differently a group of people who are different to others, then
this is discrimination. To support such a policy we must have very good reasons.
If the justifications for differentiation can be dealt with by registering a partner
in accordance with the 2004 Act then there must be a call to end discrimination
for all other unregistered couples. If, on the other hand, there are good reasons to
distinguish between the two groups, then differentiation should be celebrated not
censured.
Useful further reading
Bailey-Harris, R. Law and the unmarried couple oppression or liberation?
[1996] 8 CFLQ 137.
Bailey-Harris, R. Same-sex partnerships in English family law in Wintemute,
R. and M. Andenaes (eds) Legal recognition of same-sex partnerships: a
study of national, European and international law. (Oxford: Hart, 2001) [ISBN
9781841131382].
Bamforth, N (2005) Philosophical and constitutional arguments in the same-sex
marriage debate. CFLQ, Volume 17, No 2, 165.
Bamforth, N. (2007) The benefits of marriage in all but name? Same-sex couples
and the Civil Partnership Act 2004, CFLQ, Volume 19, Issue 2, 133.
Bridge, S. (2007)Cohabitation: why legislative reform is necessary, Fam Law, 37,
911.
Bridge, S. (2007) Financial relief for cohabitants: eligibility, opt out and provision
on death, Fam Law, 37, 1076.
Bull, L. (2008) Cohabitation outcomes after the Law Commission Report, Fam
Law, 38, 56.
Diduck, Chapter 8, pp. 201204.
Douglas, G. Marriage, cohabitation and parenthood from contract to status,
in Katz, S., J. Eekelaar and M. Maclean (eds) Cross Currents. (Oxford: Oxford
University Press, 2000) [ISBN 9780198299448].
Humphries, M. (2007) The Law Commission consultation on cohabitation, Fam
Law, 36, 860.
Lewis, J. Marriage and cohabitation and the nature of commitment [1999] 11
CFLQ 355.
Murphy, J (2004) Same-sex marriage in England: a role for human rights? CFLQ,
Volume 16, No 4, 245.
Probert, R. and A. Barlow Displacing marriage diversification and
harmonisation within Europe [2000] CFLQ 153.
page 144 University of London External System
Probert, R. (2007) Hyde v Hyde: defining or defending marriage?, CFLQ, Volume
19, No 3, 322.
Slaughter, M. Marital bargaining in Maclean, M. (ed.) Making Law for Families.
(Oxford: Hart, 2000) [ISBN 9781841132051].
Summers, J & Chase, J, Civil partnerships first year, 2006, Fam Law, 36, 1077.
Sample examination questions
Question 1 Do you agree that the law ought to treat all family partnerships
equally? What would be the implications of such treatment? Does the current law
differentiate or discriminate between the various forms of partnership?
Question 2 To give cohabitees rights in law would destroy the very freedom which
makes cohabitation attractive to them. It would also create enormous problems of
definition and entitlement while providing a bonanza for lawyers.
Discuss.
Advice on answering the questions
Question 1 This essay question is split into three separate questions and it is
important to remember to deal with the three questions equally. The first question
asks you to consider the merits of treating family partnerships equally. Bailey-Harriss
criteria are a good point for discussion when considering the interests a state would
have in treating family partnerships equally.
When looking at the implications of such treatment you need to consider the
arguments which support the law treating marriage differently. The two stronger
arguments are the possible benefits to the state and the issue of choice. If you treat
all relationships equally then will the state lose some of its benefits? Will we be
undermining peoples choice?
Registration of civil partnership has its disadvantages. While in some ways it is a step
forward for gay rights, as it will afford practical solutions to the manifestations of
the injustices of the present law, is it also a sop which allows the state to avoid the
responsibility of confronting the issue of gay marriage? A discussion of Wilkinson v
Kitzinger and Another [2006] would help here as, although registration can be viewed
as an alternative form of marriage, it can also be seen as possibly a poorer one.
What about those who are still not afforded protection by the law as a result of their
cohabiting status? Consider the Burden sisters here. Will it coerce cohabiting couples
to make a choice that will involve the state in their affairs? After all, those who do not
register will not be afforded the status changes that those who do will.
The final part of the question asks you to consider whether the current law does
discriminate or differentiate. There is plenty of evidence which suggests that the
present law does discriminate, but your answer will depend on whether you believe
the state has a right to do so. Our obligations under the European Convention on
Human Rights would say no in some areas but what of others? Is formal equality
ever attainable? Is it desirable? After all, we could be assuming that cohabitants
want to be married or in a civil partnership and yet even if they do not, is it a
states responsibility to coerce them into doing so? The Law Commissions recent
suggestions for reform do provide an opportunity for protection which would at least
undermine the myth of common law marriage. The problem with all opportunities for
protection is that those who choose not to engage in them may well find themselves
discriminated against on this basis.
Question 2 In a similar essay-type question you are being asked to consider the legal
rights of cohabitees. You can pick from financial, proprietary, taxation, status rights
and the available protection from domestic violence. You then need to consider the
CPA 2004 and how it has eradicated many of the substantive differences between
married couples and civil partners. One implication is that recent legislative proposals
by the Law Commission may undermine the very freedoms that cohabitants enjoy. It
will arguably create problems of definition which will involve further litigation and the
Family law 8 Cohabitation page 145
only people who tend to benefit from litigation are lawyers. Hence the term bonanza!
Having said this you should consider whether you think it is the laws responsibility,
in accordance with the rule of law, to at least offer couples the chance to be treated
equally. Here you may like to consider whether the law ought to discriminate
(arguably never) or differentiate in celebrating the differences between the two.
Marriage/civil partnership has benefits and it also has burdens. Some cohabitants may
not wish to share in these benefits or these burdens.
In many ways this question utilises much of the material in the first question, but the
structure will differ and the consequences are seen as more particular in this second
question. Both questions demand more than simply a compare and contrast. Think
about the material and the arguments. Both sides have some merit and it is up to
you to formulate an argument which proves to be both cogent and powerful. Do not
appear too neutral. This will convince Examiners you have no view.
page 146 University of London External System
Reflect and review
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise first
Need to
study again
I can explain the way the law defines what is meant
by cohabitation.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
8.1 What is cohabitation?
8.2 Legal differences between unmarried and married couples
8.3 Same-sex couples: substance over form
8.4 Discrimination or difference?
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.1 Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.2 Status: legitimacy and illegitimacy . . . . . . . . . . . . . . . . . . . 153
9.3 Those with parental responsibility . . . . . . . . . . . . . . . . . . . . 157
9.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 159
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
9 Status and parentage
page 148 University of London External System
Introduction
The next six chapters are devoted to the law relating to children. This chapter
concerns parentage and status and the concept and content of parental responsibility.
Chapter 10 outlines wardship and the courts inherent jurisdiction with regard to
children. Chapter 11 describes the general principles the courts use when considering
disputes concerning children, while Chapter 12 considers private court proceedings
under the Children Act 1989 (CA).
See Re W (Minors)
(Surrogacy) [1991] 1 FLR 385.
The identification of the legal mother of a child born after 1 August 1991 as a result of
such medical procedures is now governed by Human Fertilisation and Embryology Act
1990 (HFEA) s.27(1), which defines the carrying mother as the legal mother.
The father
In general, the legal father is the person who provides the sperm which leads to
conception. This is subject to the following exception.
u The husband of a woman who is artificially inseminated is treated as the father
of the child, unless it is proven that he did not consent to the treatment (s.27 of
the Family Law Reform Act 1987 (FLRA), applying to procedures after 4 April 1988).
This provision is expanded by s.28(2) HFEA to encompass artificial insemination by
donor (AID) and embryo donation occurring after 1 August 1991 and provided the
husband can rebut the presumption that he is the father of any child his wife bears
(s.28(5) HFEA).
The importance of this consent of the potential father to this treatment continues to
be pivotal. In a recent and very public case it was determined that, however tragic the
circumstances, a fathers consent was required before frozen embryos could be used
following the couples separation. In Evans v Amicus Healthcare Ltd [2005] Fam 1 Ms
Evans, who was infertile, appealed against a decision that she was not entitled to use
frozen embryos created by IVF treatment after separating from her male partner, Mr
Johnston, who had withdrawn his consent to the treatment. Ms Evans and Mr Johnston
had given their written consents to each others treatment together to include the
use and storage of their embryos. The judge had rejected Ms Evans application for an
injunction to restore Mr Johnstons consent and also her application for a declaration
of incompatibility argued on the basis that her rights under the Human Rights Act 1998
Schedule 1 Part I Article 8 and Article 14 had been breached by the HFEA Schedule 3. Ms
Evans contended that the judge had erred:
1. in his construction of the words treatment together and the phrase used in
providing treatment services in Schedule 3 paragraph 4(2)(a) of the 1990 Act, and
that for the purposes of Schedule 3 paragraph 4(2)(a) the requisite use had been
fulfilled by the separation and choice of suitable eggs fertilised for storage
2. in holding that the interference with her private life was necessary and
proportionate under Article 8(2)
3. in holding that E had not been discriminated against in the enjoyment of her
Article 8 rights in contravention of Article 14
(egg
and sperm) which has led to a childs conception to apply for a parental order which
will require the child to be treated in law as their child. The courts power, introduced
as a result of Re W (Minors) (Surrogacy) [1991] 1 FLR 385, is subject to various conditions.
u The applicants must be husband and wife.
u They both must be over 18.
u At least one must be domiciled in the United Kingdom.
u The application must be made within six months of the childs birth.
u At the time of the application the childs home must be with the husband and wife.
u The carrying woman and her husband must have freely, and with full understanding
of what is involved, agreed unconditionally to the making of the order and this
consent may be dispensed with only where the required person cannot be found
or is incapable of giving agreement.
u No money or other benefit, other than expenses reasonably incurred, must be
paid.
See Re C [2002] 1 FLR 909. A court can retrospectively authorise payment which
otherwise would contravene s.30(7), if it considers that a parental order would be in
the childs best interests.
Activity 9.1
a. Marianne and her husband Niall are unable to have children. Unknown to Niall,
Marianne has received artificial insemination treatment and is now pregnant.
Who, in law, will be the childs father?
b. Mary is unable to have children. She and her husband, David, entered into an
agreement with Susan for her to have a child for them after being inseminated
with Davids sperm. Who, in law, is the babys mother? Who is his father? If
Susan had been inseminated with another mans sperm, who then, in law,
would be the father?
9.1.3 The determination of parentage
The law has developed a number of presumptions to assist the determination of
parentage.
First, pater est quem nuptiae demonstrant: any child born to a married
woman is presumed to be that of her husband. See Preston-Jones v Preston-Jones [1951]
AC 391 Knowles v Knowles [1962] 1 All ER 695.
There is also a presumption that the man named on the birth certificate is the childs
father (s.10 Births and Deaths Registration Act 1953). Any presumption of law as to the
legitimacy or illegitimacy of any person may, in any civil proceeding, be rebutted by
evidence that it is more probable than not that the person is legitimate or illegitimate
(s.26 FLRA), but it seems that the better view is that the evidentiary burden is greater
than in the usual civil cases and is consonant with the seriousness of the question.
Contrast S v S [1972] AC 24, 41 with Serio v Serio (1983) 4 FLR 756 and W v K (1988) 18 Fam
Law 64.
Tests
See also, for the criteria to be applied in determining whether blood tests should be
ordered: Re F (A Minor: Paternity Test) [1993] Fam Law 407 and see the contrast in Re H
[1996] 2 FLR 65; Re T (A Minor: Blood Tests) [1994] 1 FLR 495; Re CB (Blood Tests) [1994] 2 FLR
762; Re A (A Minor) (Paternity: Refusal of Blood Tests) [1994] 2 FLR 463; O v L (Blood Test)
[1995] 2 FLR 930 (CA) and Re T [2001] 2 FCR 577.
or authority over
their children waned both as a result of the welfare principle (i.e. the growth in the
recognition of childrens decision-making power) and childrens rights, encapsulated
most completely in the United Nations Convention on the Rights of the Child. See
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
As a reflection of this, the CA replaces the terms parental rights and duties, parental
powers and duties and the rights and authority of a parent, which were to be found
in previous legislation relating to children, with parental responsibility. According to
the Lord Chancellor, this emphasises that the days when a child could be regarded as
a possession of his or her parents, indeed when in the past they had a right to his or
her services and to sue on his or her loss, are now buried forever. The overwhelming
purpose of parenthood is now said to be:
the responsibility for caring for and raising the child to be a properly developed adult both
physically and mentally. (Lord MacKay LC, 502 HL Official Report (fifth series) col. 490.)
See R v Derriviere [1969] 53 Cr App Rep 637 and Re H [1987] 2 FLR 12.
However this will only provide a defence for common assault. Any more serious injury
is prohibited under s.58 Children Act 2004.
This right may be delegated, but s.548 Education Act 1996 forbids corporal punishment
at any school. Section 550A allows a member of staff to use reasonable force to
prevent a pupil from injuring another pupil. Section 550B allows a child to be given a
detention outside school hours without parental consent, provided the parents are
given at least 24 hours notice. See A v UK [1998] 2 FLR 959 and R v H [2002] 2 FLR 431.
Religion
A person with parental responsibility has a common law right to determine a childs
religious education. See Andrews v Salt (1873) 8 Ch App 622.
Such a person may demand that the child be excluded from religious studies lessons
and school assembly (s.9 Education Reform Act 1988). While a child is in care, the local
authority may not cause the child to be brought up in any religious persuasion other
than that in which he or she would have been brought up if the care order had not
been made (s.33(6)(a) CA).
Right to services
There is some doubt as to the existence of this right. See F v Wirral MBC [1991] 2 All ER
648.
This case points out, further, that there is no action of interference with parental
rights.
Parents, but no
others with parental responsibility, have a right to inherit their unmarried childrens
property.
Right to represent the child in legal proceedings
At law a child is generally unable to bring or defend legal proceedings. This is subject
to a courts discretion, under the Civil Procedure Rules r.21, and the child is able to use
a litigation friend who may assist them with either an action or a defence. This rule
does not apply to cases involving family proceedings under the Family Proceedings
Rules 1991.
Medical treatment
According to s.8 Family Law Reform Act 1969, a person over 16 has a statutory right
to consent to treatment, but this may not give them the right to withhold consent.
See Re W (A Minor) (Inherent Jurisdiction: Consent to Treatment) [1992] 4 All ER 627; Re HG
(Specific Issue Order: Sterilisation) [1993] 1 FLR 587 and Practice Note [1993] 3 All ER 222.
Where the person is under 16, a person with parental responsibility has some rights
to consent to the treatment of his or her immature children, but such treatment may
be given or refused in a proper case against such a persons wishes. See Gillick v West
Norfolk and Wisbech Area Health Authority [1986] AC 112; Re R (A Minor) (Wardship: Medical
Treatment) [1991] 4 All ER 177; Re C [1997] 2 FLR 180; Re T (Wardship: Medical Treatment)
[1997] 1 FLR 502 and Re C (Medical Treatment) [1998] 1 FLR 384.
Parental responsibility may not be sufficient to authorise sterilisation and the matter
may have to be referred to the court. See Re D [1976] 1 All ER; 326 Re B [1988] AC 199; Re
E [1991] 2 FLR 585; Re HG (A Minor) (Sterilisation) [1993] Fam Law 43 and Practice Note on
Sterilisation [1990] 2 FLR 530.
Where a child is at risk of suffering significant harm because of lack of treatment,
an emergency protection order or a care order may be made and the treatment
authorised by the local authority or the court (ss.31, 33 and 34 CA). Doctors have been
advised by the Department of Health that they are unlikely to be held liable for assault
and should carry out treatment without waiting for a court order where the treatment
is essential.
A decision about the childs treatment can be given in the wardship procedure or in
the courts inherent jurisdiction: the court could make a specific issue or prohibited
steps order on the application of any person who has obtained leave. See ss.8 and 10
CA and Re B [1981] 1 WLR 1421; Re C [1989] 2 All ER 783; Re Baby J [1991] 3 All ER 930; Devon
CC v S [1993] Fam Law 41; Re S (A Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065;
Re C [1997] 2 FLR 180; Re T (Wardship: Medical Treatment) [1997] 1 FLR 502; Re C (Medical
Treatment) [1998] 1 FLR 384.
Right to consent to marriage
Under Schedule 12 of the CA, Schedule 2 of the Marriage Act 1949 is amended and a
parent has a right to consent to marriage. Any refusal can be overridden by the court
under s.3(1)(b) of the Marriage Act.
Right to contact with the child
Contact with a child is not a fundamental right of a parent, although Lord Oliver stated:
As a general proposition a natural parent has a claim to contact with his or her child to
which a court will pay regard. (See Re KD [1988] AC 806.)
The issue of contact can be resolved by a contact order, s.8 CA. Where the child is in
care, CA ss.34 and 44(13) and Schedule 3, paragraph 125 are applicable.
See s.41(1)(iii)
Administration of Estates Act
1925 and s.18(2) FLRA.
page 156 University of London External System
Surname
Section 2(7) CA states that where more than one person has parental responsibility
for a child, each of them may act alone and without the other in meeting that
responsibility. The provisions of s.13(2) CA state that where a residence order is in force,
no person may cause the child to be known by a new surname without the written
consent of those with parental responsibility or the leave of the court. The issue of the
surname and/or changing it has been considered in: W v A [1981] Fam 114; Re B (Change
of Surname) [1996] 1 FLR 791 (CA) and Re PC (Change of Surname) [1997] 2 FLR 730. In this
case three legitimate children, aged 12, 10 and six, lived with their mother following
their parents divorce. There was no residence order in force. The mother remarried
and sought to change the childrens surname. She applied for a specific issue order
to determine whether, in the absence of a residence order, she could unilaterally
change the childrens names. The court held that s.13 had not changed the common
law position that neither parent of a legitimate child could change the surname of the
child without the agreement of the other or a court order and that the others consent
had to be written. Obiter, where only one person had parental responsibility for a child
he or she could change the surname unilaterally. See Dawson v Wearmouth [1997] 2
FLR 629. In this case the Court of Appeal held that it was a perfectly natural and logical
choice for the mother of an illegitimate child to call the child by the surname of her
former husband rather than by the fathers name.
The House of Lords dismissed the fathers appeal at [1999] 1 FLR 1167 holding that,
where the proposed change was from the name by which a child had been registered
at birth and by which the child had been known, clear circumstances were required to
justify, under the paramountcy principle, any change.
The same issue, that of the circumstances in which a child, registered at birth in one
name, might have his or her name changed by one parent against the wishes of the
other, was raised in: W (a child); A (a child); B (children) [1999] 2 FLR 930 where the
Court of Appeal held that, where a residence order was in force, a person seeking
to change the childs name needed either the written consent of the person with
parental responsibility or leave of the court under s.13 CA. In cases where there was no
residence order, written consent or a specific issue order from the court was required.
In either case, the childs welfare was paramount and the checklist in s.1(3) applied.
The Court of Appeal considered the type of factors and their respective weight
which might have a bearing upon the determination of what would best serve a
childs interest. See Re T (Change of Surname) [1998] 2 FLR 620. Dawson v Wearmouth
is the authority for the proposition that a father with a parental responsibility order
had standing to object to the change of a childs surname notwithstanding that no
residence order was in force. Since Re P & C (Minors) [1997] 2 FLR 730 it is clear that
childrens names were important to the issue of welfare and that in any dispute the
consent or leave of the court was an essential prerequisite to a change of name,
particularly where both parents had parental responsibility.
This list of rights and duties cannot be seen as exhaustive or, more importantly, closed.
There is always room for further development. See Re Z (Identification) [1997] Fam 1.
You should be aware that disputes about incidents of parental responsibility both
between adults and between adults and children is a fertile area for examination
questions.
Activity 9.4
Should parental responsibility be more clearly defined in law?
Family Law
9
Status and parentage page 157
Summary
The issue of legitimacy and illegitimacy is far less significant than it used to be. Parental
responsibility gives parents, or others awarded parental responsibility, certain rights
and authorities with respect to their child. This means they have certain duties with
regard to the childs upbringing. The exercise of these duties involves parents making
decisions as to a childs education, discipline, religion, medical treatment, the
administration of property, right to marry and surname. Those with parental
responsibility may also have a right of physical possession of the child and a right to
contact, subject to the overriding principles of the CA.
9.3 Those with parental responsibility
9.3.1 Categories of parent
Both parents of legitimate child
Where a childs father and mother were married to each other at the time of his birth,
they shall each have parental responsibility for the child. (s.21(1) CA)
Section 112 Adoption and Children Act 2002 provides the means to give parental
responsibility to a step-parent either by the parent agreeing or by a court order.
The mother of an illegitimate child
Where a childs father and mother were not married to each other at the time of his
birth:
a the mother shall have parental responsibility for the child.
The father of an illegitimate child
b the father shall not have parental responsibility for the child, unless he acquires it
in accordance with the provisions of this Act. (s.111 Adoption and Children Act
2002).
Section 4 CA allows the father to acquire parental responsibility either on application and
by court order or by agreement between the mother and the father in prescribed form. In
deciding whether to grant a parental responsibility order on application by the father, the
childs welfare is the paramount consideration (s.1(1) CA) and the court must be satisfied
that making such an order is better than making no order at all (s.1(5) CA). Reported cases
indicate that the following factors should be taken into account in the determination of
whether the father should be granted parental responsibility.
u The degree of commitment which the father has shown towards the child.
u The degree of attachment which exists between the father and the child.
u The reasons the father has for applying for the order. If it is felt a father may use the
order to interfere and improperly undermine the mothers care of the child, then
an order will be refused. See Re P (Parental Responsibility) [1998] 2 FLR 96 CA.
Such an order may be made even though the child is about to be freed for adoption, is
in local authority care or where aspects of parental responsibility cannot be exercised
or are unenforceable due, for example, to the mothers hostility. See Re H [1989] 2 All ER
353, 906; Re H (Minors) (Adoption: Putative Fathers Rights) [1991] 2 All ER 185; Re C (Minors)
[1992] 2 All ER 86 and D v Hereford & Worcester CC [1991] 2 All ER 177.
Note that an unmarried father can be granted parental responsibility without contact:
see Re H (Contact and Parental Responsibility) [1993] 1 FLR 484 CA.
The putative fathers parental responsibility can be brought to an end by order of the
court made by application of any person with parental responsibility for the child
or the child himself or herself (in the event the court is satisfied that the child has
sufficient understanding to make the proposed application).
Go to your study pack and
read Responsibility by John
Eekelaar.
Consider what Eekelaar
views as being the nature of
responsibility.
page 158 University of London External System
Section 9(6) CA, which prevents the court making orders except in exceptional
circumstances where the child is over 16, does not apply to parental responsibility
orders, nor is there a direction to apply the checklist in s.1(3).
The putative father is also granted parental responsibility automatically where a
residence order is made (s.12(1) CA). This must be granted by a separate s.4 order,
which will not automatically end when the residence order comes to an end.
There are various decisions which may be seen to adopt different approaches to a
s.4 parental responsibility application. See Re S (Parental Responsibility) [1995] 2 FLR
648; Re C V (Contact and Parental Responsibility) [1998] 1 FLR 393 and Re H (Parental
Responsibility) [1998] 1 FLR 855.
A welfare approach continues to be used. See R v P (Parental Responsibility) [1998] 2 FLR
96; Re J M (Parental Responsibility) [1999] 2 FLR 737; Re M (Parental Responsibility) [2001] 2
FLR 342 and Re J-S [2003] 1 FLR 399.
There has been a recent change in the attitude towards unmarried fathers.
After significant consultation a compromise between automatic parental
responsibility to all unmarried fathers and no automatic parental responsibility to all
unmarried fathers has been reached. The Adoption and Children Act 2002 amended
s.4 CA in December 2003 to provide that an unmarried father shall acquire parental
responsibility for his child if he becomes registered as the childs father under s.10(11)
(a)(c) of the Births and Deaths Registration Act 1953 (s.4(1)(a) and (1A) CA 1989). This
requires that both parents are registered at birth if both parents make a request to
this effect with a declaration from the father that he is the father of the child being
registered. Interestingly, this parental responsibility can still be terminated by the
court. The discrimination between married and unmarried fathers remains.
If the unmarried father is not registered in this way and wishes to obtain parental
responsibility he will have to acquire it in the usual way.
Activity 9.5
What arguments can you think of to justify the law drawing a distinction between
married and unmarried fathers in awarding parental responsibility to children?
Adoptive parents
The adoptive parents of an adopted child have parental responsibility. The making of the
adoption order operates to extinguish the parental responsibility vested in any other
person immediately before the making of the order (s.12(3) Adoption Act 1976).
Other individuals appointed by parents and guardians
The CA provides for parents and guardians to appoint other individuals to be the
childs guardian by will or written instrument. It is also possible for the court to
appoint a guardian (s.5(3) CA). By virtue of s.6, the childs guardian has parental
responsibility. Appointment takes effect on the death of any person making the
appointment, where the child concerned has no parent with parental responsibility
for him or her or if, immediately before the death of any person making such
appointment, a sole residence order existed in his or her favour with respect to the
child (s.5(7) CA).
Other persons who may have parental responsibility
Persons with residence orders have parental responsibility for the child as long as the
order remains in force (s.12(2) CA). Such a person may not consent or refuse to consent
to the making of an adoption order under s.46 of the Adoption and Children Act 2002,
with respect to the child or appoint a guardian for the child (s.12(3) CA).
Where a care order is in force with respect to a child, the local authority designated by
the order has parental responsibility for the child (s.33(3) CA). The local authority may
not have the child brought up in a religious persuasion other than that in which he or
she would have been brought up were the order not made, nor does it have the right
Family Law
9
Status and parentage page 159
to consent or refuse to the making of an adoption order or an order freeing the child
for adoption, nor can it appoint a guardian for the child (s.33(6) CA).
Any person who has an emergency protection order has limited parental responsibility
(s.44(4), (5) CA).
9.3.2 Sharing of parental responsibility
Parental responsibility may be shared (s.2(5) CA). A person does not lose parental
responsibility solely because another person also acquires it (s.2(6)). Where parental
responsibility is shared, any person who has it can act alone and without the consent
of the other in meeting the responsibility, except where enactment provides that
agreement of all is required (s.2(7)). However, no person may act inconsistently with
any order made with respect to the child under the Act (s.2(8)). And where there is
a care order, the local authority has the power to determine how the parents may
exercise parental responsibility (s.33(3)).
Parental responsibility may be delegated (s.2(9)(11)). Such delegation does not affect
the liability to discharge parental responsibility by the delegator. In order to meet
emergency situations, s.3(5) provides that any person with care of a child who does
not have parental responsibility may: do what is reasonable in all the circumstances of
the case for the purpose of safeguarding or promoting the childs welfare.
Summary
The awarding of parental responsibility has often been seen as a controversial issue
in family law. The mother, whether married or unmarried, automatically acquires it.
The married father also automatically acquires it. The unmarried father can acquire
automatic parental responsibility if he jointly registers the child in accordance with
recent legislative changes. However, this is not necessarily permanent. If they do not
jointly register the child, unmarried fathers will have to acquire parental responsibility
in accordance with the provisions of the CA. Adoptive parents acquire parental
responsibility on the granting of an adoption order. Parental responsibility can be
shared by parents with, for example, a local authority. Parents, except unmarried
fathers, cannot lose parental responsibility. Rather than being a matter of fact, parental
responsibility is a legal device to monitor a childs upbringing in some ways.
9.4 The Human Rights Act 1998
For the purposes of status and parentage, a number of key issues emerge as to
whether the present law is in violation of the Convention.
u Should there be a right to know ones parentage?
u Should parental responsibility include the right to discipline a child in whatever
way the parent chooses?
u Is the current distinction between married and unmarried fathers for the purposes
of granting parental responsibility a violation of the Convention?
9.4.1 The right to know?
It could be argued that the Convention, through the HRA, does support a right to know
ones parentage through Article 8 and the right to respect for private and family life.
However, the case law does not support such a view. Prior to the enactment of the
1998 legislation, it was thought the Convention would not support any right to know.
See MB v UK [1994] 77 A DR 108.
This view was confirmed in: Rose v Sec of State for Health [2002] 2 FLR 962. In this case
the Secretary of State for Health had refused the claimants request for information
in respect of the anonymous donor by whose sperm she was conceived and for
the establishment of an anonymous contact register. On the claimants application
to judicially review the decision, the court held that respect for private and family
page 160 University of London External System
life required that everyone should be able to establish details of their identity as
individuals, including the right to obtain information about a biological parent. To a
certain degree, respect for family life comprised the right to establish relationships
with other human beings and the fact that there was no relationship beyond an
unidentified biological connection did not prevent Article 8 ECHR from applying.
Therefore, Article 8 was engaged in respect of both identifying and non-identifying
information. This decision prompted recent reforms in medical law where anonymous
sperm donors can now be identified if they donated their sperm after 1st April 2005.
The reforms have increased access to information for the children but there has been
a sharp decline in the occurrence of sperm donation.
9.4.2 Discipline and the Convention
It has traditionally been thought that a person with parental responsibility may
administer reasonable corporal punishment. However, a case from the ECHR has
suggested that English and Welsh law is in breach of the Convention. In A v UK [1998] 2
FLR 959, the question was whether there was violation of Article 3 of the ECHR by the
UK in its failure to safeguard a boy from inhuman treatment by his stepfather who
used to cane him when he was nine. The stepfather was charged with assault, but
acquitted on the basis of reasonable chastisement. The court held that an assessment
of what was reasonable was relative and depended upon all the circumstances the
nature, extent and duration of the punishment, any physical or mental effects and the
age, sex and state of health of the child. UK law had not given adequate protection
to the child and this constituted a violation of Article 3. The common law defence of
reasonable chastisement was subsequently reviewed and as a result of s.58 Children
Act 2004 it was preserved but only to a summary charge of common assault. Any more
serious injury to a child will no longer be afforded this defence.
Historically corporal punishment in schools was permitted. This was justified on the
basis that teachers were in loco parentis when children were in school and so were
able to administer punishment in the same way as parents did. This right to administer
corporal punishment was abolished in state schools in 1986 but continued to be
available in independent schools until 1996. This means that the defence of reasonable
chastisement cannot be claimed by a school teacher and so the use of physical
force by a teacher can give rise to civil and/or criminal liability. This prohibition was
considered in the case of R v Secretary of State for Education and Employment ex parte
Williamson and Others [2005] UKHL 15.
9.4.3 The unmarried father and the assignment of parental responsibility
It has been suggested (Herring, p.300) that English law does breach the Convention for
its failure automatically to assign parental responsibility to unmarried fathers. This is
based on:
u discrimination on the grounds of sex under Article 14, but see McMichael v UK [1995]
20 EHRR 205 ECtHR and B v UK [2000] 1 FLR 1
u discrimination on the grounds of marital status under Article 14, but see B v UK
[2000] 1 FLR 1
u breach of right to respect for family life under Article 8, but see Johnston v Ireland
[1986] 9 EHRR 203 ECtHR.
All three of these grounds have been rejected by the ECtHR.
The perceived injustice of this assignment of parental responsibility should have been
remedied when the Adoption and Children Act 2002 gave parental responsibility to
unmarried fathers if they are registered on their childs birth certificate. As we have
already seen, however, this award of parental responsibility is not absolute.
Family Law
9
Status and parentage page 161
Summary
The Human Rights Act 1998 has asked some interesting questions about parents and
parental responsibility. The European Convention does not support a right to know
ones parentage. The law on reasonable chastisement was reviewed and the defence
is still possible but with tighter regulation under the Children Act 2004. Recent
legislative changes have attempted to massage the apparent discrimination against
unmarried fathers. It has not removed the distinction, however, and we shall have to
wait to see if the new legislative changes are challenged under the Convention.
Useful further reading
Barton, C. Hitting your children: Common assault or common sense? (2008) 37
Fam Law 64.
Callus, T. First designer babies, now a la carte parents? (2008) 38 Fam Law 143.
Deech, R. Family law and genetics (1998) 61 MLR 697.
Eekelaar, J. Parental responsibility a new legal status? (1996) 112 LQR 233.
Fortin, J. Re F: the gooseberry bush approach (1994) 57 MLR 296.
Gilbert, B. Paternity, Truth and the Interests of the Child (1996) 8 CFLQ 361.
MacLean, M. and S. MacLean Keeping secrets in assisted reproduction (1996) 8
CFLQ 243.
Mnookin, R. Child custody adjudication (1975) 39 Law and Contemporary
Problems 226.
Morgan, D. and R. Lee, In the name of the father? Ex parte Blood (1997) 60 MLR
840.
Sample examination questions
Question 1 Critically consider the Law Commissions reasons for not conferring
automatic parental responsibility on unmarried fathers. Should the law now revise
this position and, if so, under what conditions, if any?
Question 2 Gina and Harry began living together in 1996 in Harrys house. They
are not married. In 1998 they had a son, John. In 2000, after fertility treatment (to
which Harry consented) at a clinic licensed under the HFEA 1990, Gina gave birth to
a daughter, Fiona.
After 8 years of what appeared to be a happy family life, Gina left Harry, taking
the children with her and went to live with Ed, with whom she had been having a
relationship since 2000. She refused to allow Harry to see the children. John has said
that he wants to live with my dad but Fiona wishes to be with my mum. Gina has
now told Harry that Fiona was not born as a result of the treatment but is Eds child
and that, as she and Harry were not married, he has no rights over either of the
children. She has also told him that she plans to change the childrens surnames to
that of Ed and to move abroad where Harry will be unable to find them.
Harry wants the children to live with him, or failing that, to prevent Gina from
carrying out her plans.
Consider:
a. Harrys legal relationship with the children and whether the relationship has
any bearing upon any steps he might take.
b. What steps he can take regarding the childrens future.
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Advice on answering the questions
Question 1 This essay question requires an examination of the Law Commissions
reports between 1979 and 1986 which present some arguments for not conferring
automatic parental responsibility on unmarried fathers. You will then need to outline
what the present law is for an unmarried father to acquire parental responsibility.
Once you have explored this, it may be useful to revisit the feedback to Activity 9.5
(in the Feedback to activities section at the end of this guide) to see what arguments
there are in favour of granting or not granting automatic parental responsibility. You
should consider the Human Rights Act 1998 here and its reluctance to automatically
grant parental responsibility. You should then document the compromise in the
enactment of the Adoption and Children Act 2002, where joint registration of birth, a
symbol of commitment by the unmarried father, will allow for acquisition of parental
responsibility. Is further reform necessary or justified? It will be for you to reach a
conclusion based on the evidence you submit and the argument you present.
Question 2 This question is asking you to consider the status of Harrys relationship
with the two children and what actions he can take regarding the childrens future.
With regard to John, you need to consider both the parentage of the child and
whether Harry has parental responsibility or not over John. If he does not have
parental responsibility, what is the significance of this? As Harry is an unmarried father
you need to consider how he may acquire that status under the CA 1989. Can we
assume he did not place his name on the birth certificate as per the 2002 reforms?
What questions would a court ask if they were to grant parental responsibility? How
do you think the facts of the question may support Harrys application for parental
responsibility? Dont forget the court will consider the welfare of John, even if it is not
the courts paramount consideration.
When considering Fiona you need to look at the position of parentage under HFEA
1990. Under what conditions will Harry be treated as Fionas father? Look at s.28(3)
for clarification. If he is the father, you would need to consider once more how he
may acquire parental responsibility as he does not automatically have it (he and Gina
being unmarried). If there is doubt, as there appears to be, as to Fionas paternity then
the courts may direct scientific tests under ss.2023 FLRA 1969. DNA tests are virtually
certain to provide a conclusive result. But consider the case law here. Courts can direct
but cannot enforce DNA testing.
The second part of the question would be difficult to answer at this stage and requires
a greater knowledge of the CA. You should revisit this once you have completed
working through Chapters 10 and 11.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
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Revision
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9.1 Parentage
9.2 Status: legitimacy and illegitimacy
9.3 Those with parental responsibility
9.4 The Human Rights Act 1998
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.1 Wardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.2 The inherent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 169
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
10 Wardship and the inherent jurisdiction
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Introduction
As you will see, the law concerning children is predominantly in statutory form. There
are two other jurisdictions where questions concerning children can be resolved:
wardship and the inherent jurisdiction. The origin of the jurisdiction in wardship lies in
feudal times and parens patriae
If you ticked need to revise first, which sections of the chapter are you going to
revise?
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10.1 Wardship
10.2 The inherent jurisdiction
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
11.1 The nature of welfare . . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.2 The meaning of the welfare principle . . . . . . . . . . . . . . . . . . 181
11.3 Criticisms of the welfare principle . . . . . . . . . . . . . . . . . . . . 185
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
11 The welfare of the child
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Introduction
The Children Act 1989 (CA)
of welfare. Judicial bias and prejudice can provide the true reason
behind a decision.
4. Due to the unpredictability of the welfare principle, there are increased costs
which makes it more difficult to negotiate settlements.
Go to your study pack and
read The welfare principle
and the rights of parents by
Jonathan Herring.
Consider how parents rights
are affected by the welfare
principle.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
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Revision
done
11.1 The nature of welfare
11.2 The meaning of the welfare principle
11.3 Criticisms of the welfare principle
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.1 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
12.2 Restrictions on orders . . . . . . . . . . . . . . . . . . . . . . . . . . 197
12.3 Who may apply for orders? . . . . . . . . . . . . . . . . . . . . . . . 199
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
12 The courts powers in family proceedings
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Introduction
Part II of the Children Act provides a range of orders that can be made in respect of
children and the basis on which they can be granted in private and public
proceedings.
A growing area of concern in the contact order cases has been the issue of absent
fathers in cases that involve violence. See Re L; Re V; Re M; Re H [2000] 2 FLR 334.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
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Revision
done
12.1 Orders available
12.2 Restrictions on orders
12.3 Who may apply for orders?
page 204 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
13.1 Philosophy of the Children Act . . . . . . . . . . . . . . . . . . . . . . 207
13.2 Local authority duties to children looked after by them . . . . . . . . . 210
13.3 Orders available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
13.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 219
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
13 Children and local authorities
page 206 University of London External System
Introduction
Local authorities have a number of duties and powers towards children in need in their local
area. These duties and powers are now contained in the CA, which represented a major
review and reform of the law. The role of the law here is to engage in child protection but
this is no easy task. Herring (2007, pp.551553) identifies four main concerns for the law in
this area.
First, there are the evidential concerns. In care cases Lord Nicholls identifies the task of the
judge having to penetrate the fog of denials, evasions, lies and half truths which all too
often descends. Professionals simply do not know the facts of what takes place within the
family home and so must use their judgment no easy task. This can prove particularly
difficult if it would appear that the parents are also vulnerable (see Re L (Care Proceedings:
Significant Harm) [2006] EWCA Civ 1282).
Secondly, there is the concern as to how much a child should suffer before he or she
becomes eligible for protection by the state. If a child lives in a dirty house and has an
unhealthy diet, does this demand intervention? Some would say this is not serious enough.
Others would argue the state has a duty to intervene immediately.
Thirdly, even where protection is required because abuse has been proven, it is not clear
as to the response the law should take. Although it may be important to remove the child
from an abusive family, it must be asked if it is then appropriate to house them in local
authority care homes. Due to recent concern as to the provision of care in such homes,
it has been suggested that harm is heaped upon harm when children are placed in a
childrens home.
Finally, there is the key issue of financial resources. While the CA ensures that certain
services can be put in place to prevent significant harm to a child, these can only be
supported if the financial resources are made available to utilise these services. Responding
to a childs needs is important to protect them, but very often local authorities have to
balance this with their powers and duties to other children. Resources are, after all, finite.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u list the duties imposed on local authorities relating to children in need
u describe the range of services and assistance which a local authority may provide
u define the concept of voluntary accommodation
u state the meaning of significant harm
u explain the relationship between the threshold criteria and the basis for a care or
supervision order
u explain the differences between a care and a supervision order
u answer the question of who has parental responsibility for a child in care
u outline the extent to which local authorities may control contact between children
and their families
u outline the extent to which local authorities may, and may not, regulate the exercise
of a parents responsibility
u describe the rules relating to emergency protection of children
u explain the distinction between child assessment orders and emergency protection
orders
u consider what areas of controversy have been affected by the HRA.
Essential reading
Herring, Chapter 10, pp.551556; Chapter 11, pp.605634.
Masson et al., Chapter 21, pp.707816.
Probert, Chapter 13, pp.261295.
Standley, Chapter 15, pp.382432.
Family Law 13 Children and local authorities page 207
13.1 Philosophy of the Children Act
13.1.1 The four key principles
There are four key principles that inform the public law relating to children and which
are manifested in the Act.
1. Non-intervention
According to Lord Mackay:
...the integrity and independence of the family is the basic building block of a free and
democratic society and the need to defend it should be clearly perceivable in the law.
Accordingly, unless there is evidence that a child is being or is likely to be positively
harmed because of a failure in the family, the state, whether in the guise of a local
authority or a court, should not intervene. (Joseph Jackson Memorial Lecture (1989) NLJ
505, 507)
Accordingly, compulsory measures can only be taken following a court order and
such an order may not be made unless the threshold in s.31(2) CA is established. It is
no longer possible for local authorities to bypass the statutory threshold by resorting
to wardship and no court may commit a child into the care of a local authority in
the absence of a formal application by the authority or the National Society for the
Prevention of Cruelty to Children (NSPCC). If a court in family proceedings is concerned
about the welfare of the child and is of the view that it might be appropriate for a care
or supervision order to be made with respect to him or her, it is limited to ordering a
local authority to investigate and report back (s.37 CA).
2. Support for families in difficulty
The Children Act tries to provide the necessary support for families who find
themselves in need of support.
3. Partnership between local authorities and parents
One of the key principles of the Children Act is that responsible authorities should work
in partnership with the parents of the child who is being looked after and also with the
child himself, where he is of sufficient understanding, provided that this approach will
not jeopardise his welfare. A second, closely related principle is that parents and children
should participate actively in the decision-making process This new approach reflects
the fact that parents always retain their parental responsibility. A local authority may limit
parents exercise of that responsibility when a child is looked after by a local authority as
a result of a court order, but only if it is necessary to do so to safeguard and promote the
childs welfare (Department of Health, Guidance, Vol. 3, Family Placements, paragraphs
2.10 and 2.11)
4. Maintenance of links between the child and the family
Even when a child has been housed by the local authority, the local authority will,
where appropriate, be keen for the child to maintain links with their family in the hope
that either reconciliation can take place or the family can still play a positive part in
the childs life.
These four key principles will now have to be considered alongside the Children Act
2004. This legislation creates clear accountability for childrens services, enables
better joint working and secures a better focus for safeguarding children.
The CA 2004 was largely developed in response to the tragic case of Victoria Climbi
and the Inquiry Report which followed. The Act also created the post of Childrens
Commissioner for England whose role it is to promote the full implementation of the
United Nations Convention on the Rights of the Child. There are now, through other
legislation, Childrens Commissioners for Scotland, Wales and Northern Ireland. It is
important for you to remember that the CA 2004 does NOT overrule the CA 1989 but it
does supplement it.
page 208 University of London External System
13.1.2 Local authority support for children and families
The general duty
CA s.17 sets out the general duty of the local authority as consisting of a two-fold
obligation:
a. to safeguard and promote the welfare of children within their area who are in
need; and
b. so far as is consistent with that duty, to promote the upbringing of such children
by their families, by providing a range and level of services appropriate to those
childrens needs.
It is to be noted that this duty is confined to children in need. Section 17(10) defines
children to be in need if:
u they are unlikely to achieve or maintain, or to have the opportunity of achieving
or maintaining, a reasonable standard of health or development without the
provision of services by a local authority under this Part
u their health or development is likely to be significantly impaired, or further
impaired, without the provision of such services
u they are disabled.
For the purposes of the provision children are considered to be disabled if they are
blind, deaf or dumb or suffer from mental disorder of any kind or [are] substantially
and permanently handicapped by illness, injury or congenital deformity or such other
disability as may be prescribed. Development means physical, intellectual, social or
behavioural development and health means physical or mental health (s.17(1)).
Schedule 2, Part I expands s.17 by specifying the action local authorities must take to
identify children in need and discharge their general duty. Additionally, s.17(5) imposes
a duty on the local authority to facilitate the provision of services by others (it may
delegate provision to others). Services may include the giving of assistance in kind or,
exceptionally, in cash (s.17(6)). Assistance may be given subject to conditions (s.17(7))
and must be means tested (s.17(8)), while no repayments may be required from
persons in receipt of certain social security benefits (s.17(9)).
Note that a specific issue order cannot be used to require local authorities to exercise
their duties under this Part of the Act. See Re J (A Minor) (Specific Issue Order) (Leave to
Apply) [1995] 1 FLR 669.
Historically where a local authority failed to comply with its statutory duties under the
Act, it was unlikely that a cause of action would lie for breach of statutory duty or an
action in negligence in respect of an alleged failure (see TP and KM v UK [2001] 2 FLR 549
and U v Bedfordshire CC [1995] 3 All ER 353 (HL)). In recent years the courts have shown a
greater willingness to permit recovery under the civil law, although they are mindful of
the inherent problem of opening the floodgates to excessive claims which would lead
to defensive local authority practice.
It is important to note that the provisions of s.17 concern local authorities powers in
respect of, and duties to, children in need rather than the courts powers. However,
in the case of Re Cs Application for Judicial Review [1999] EWHC Admin 771 (30th July,
1999) a local authoritys decision that a severely disabled childs needs could be met
simply by adapting his present accommodation rather than rehousing him, his mother
and his brother was subject to judicial review on the grounds that, in reaching its
decision, the authority had neither asked the right questions nor taken reasonable
steps to obtain sufficient information to reach a reasonable decision.
Family Law 13 Children and local authorities page 209
Accommodating children in need
The provisions within the CA relating to the accommodation of children in need
replace what was formerly known as voluntary care. Accommodation has the same
status as other services provided within Part III of the Act and is thus truly voluntary,
dependent on the willingness of the family to accept it. It is regulated by s.20(1).
Every local authority shall provide accommodation for all children within their area
who appear to them to require accommodation as a result of:
u there being no person with parental responsibility for them
u being lost or having been abandoned
u the person who has been caring for them being prevented (whether or not
permanently and for whatever reason) from providing them with suitable
accommodation or care.
The duty applies to all children under the age of 18, although s.20(3) appears to limit
the duty where the child has reached 16 to any child who the authority considers is
likely to be seriously prejudiced if they do not provide him with accommodation.
Local authorities are invested with the power to provide accommodation for any child
or young person who has not reached the age of 21 if they consider that to do so would
safeguard or promote the childs welfare (see s.20(4) and (5)). Should they decide not
to accommodate under s.20 that decision is susceptible to judicial review. See Re T
[1995] 1 FLR 159, R v Tameside Metropolitan Borough Council, ex p J [2000] 1 FCR 173 and R
(on the application of G) v London Borough of Barnet [2001] 2 FLR 877.
It remains the case, however, that s.17 CA gives the local authority the power to assist
the family with the provision of accommodation, but the exercise of that power is a
matter of discretion (see R v Lambeth RBC [2002] 2 FLR 327).
Before accommodation is provided under this section, the local authority must, so far
as is practicable and consistent with the childs welfare, ascertain the childs wishes
and feelings about this and give due consideration to them (s.20(6)).
Provision of accommodation within the section is truly voluntary, which precludes
the local authority from providing accommodation for a child under 16 if any person
with parental responsibility, who is willing and able to provide accommodation for
them, objects. This is reinforced by s.20(8) which states that any person with parental
responsibility may remove a child under 16 years at any time. If there is a residence
order or an order giving care and control under the inherent jurisdiction of the court,
these decisions can only be made by a person in whose favour the order was made
(s.20(9)). If the order was made in favour of more than one person, all must agree
(s.20(10)), while children aged 16 or above may themselves decide about going in, or
remaining in, local authority accommodation (s.20(11)).
Local authorities and parents usually reach agreements about the terms of the
childs accommodation. Such agreements are governed by the Arrangements for
Placement of Children (General) Regulations 1991 (SI 1991, No.890), which indicates
that agreements are to be made in writing between the authority and a person with
parental responsibility or, in the event of there being no such person, the childs carer
or, where the child is over 16, the child. Various matters, set out in Schedules 13 of the
Regulations, must be included in the agreement.
Summary
There are four principles in the CA, which must be considered in the area of child
protection. These are non-intervention, support for families in difficulty, partnership
between local authorities and parents and maintenance of links between the child
and the family. There must also be, in accordance with the CA 2004, a greater emphasis
on joint working to ensure relevant agencies share information relevant to vulnerable
children. The local authority has a general statutory duty to support children and their
families and can, if necessary, accommodate children in need.
page 210 University of London External System
13.2 Local authority duties to children looked after by them
13.2.1 General duty
The general duty of local authorities to children looked after by them is set out in s.22
CA. This general duty pertains to all children looked after by authorities, both those
accommodated by them, if such accommodation exceeds 24 hours (s.22(2)), and those
who are looked after by them in pursuance of a care order. CA s.22(3) provides:
it shall be the duty of the local authority looking after any child:
a. to safeguard and promote his welfare and
b. to make use of such services available for children cared for by their own parents as
appears to the authority reasonable in his or her case.
The authority must, before making any decision with respect to any children they are
looking after, so far as reasonably practicable, ascertain the wishes and feelings of:
u the child
u the childs parents
u any person who is not the childs parent, but has parental responsibility
u any other relevant individual (s.22(4)).
Considerations
Decisions must be made in the light of:
u the childs age, understanding, wishes and feelings (so far as ascertainable)
u the wishes and feelings of the childs parents, those with parental responsibility
with respect to the child and any other relevant individual; and
u the childs religious persuasion, racial origin and cultural and linguistic background
(s.22(5)).
It is to be noted that for the purposes of s.22 a parent includes a putative father
without parental responsibility, but not the biological parent of a child who is freed for
adoption. See M v C and Calderdale BC [1992] 2 FCR 141.
Other relevant individuals whose wishes may be material within s.22(4) and (5) might
include the childs GP, the local authority in the area wherein the child is to be placed,
the district health authority, the local education authority, the childs school, the
extended family, the guardian ad litem,
Summary
If an application is made by the local authority under s.31(2), then the court can
award either a care order or a supervision order. These can be interim or final and an
application for discharge is possible. Contact between parents and children in care
is promoted by the local authority. In an emergency the local authority may apply
for an emergency protection order. Other emergency protection options include a
child assessment order, a search warrant or an injunction. There is a variety of ways to
challenge a local authority decision; some are more successful than others.
13.4 The Human Rights Act 1998
Incorporating the ECHR into domestic law has proven to be an important area for
consideration in family law. There is a genuine worry of a number of children getting lost
in care because of a lack of forward planning. See F v Lambeth London Borough Council
[2001] 3 FCR 738.
Failure to protect
If a local authority, knowing the plight of children, fails to act to protect them from
serious harm, it may be in breach of Article 3: the absolute right to protection from
inhuman and degrading treatment. This question was considered in Z v UK [2001]
2 FLR 612 where a local authority had failed for five years to instigate care proceedings,
despite its knowledge of the childrens situation. The neglect and abuse suffered by
the children had reached the level prohibited by Article 3; accordingly, there was a
violation of Article 3.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
13.1 Philosophy of the Children Act
13.2 Local authority duties to children looked after by them
13.3 Orders available
13.4 The Human Rights Act 1998
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
14.1 Adoption under the Adoption and Children Act 2002 . . . . . . . . . . 227
14.2 Adoption services . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
14.3 The adoption order . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.4 Placement and consent . . . . . . . . . . . . . . . . . . . . . . . . . 232
14.5 Contact and the childs right to know . . . . . . . . . . . . . . . . . . 234
14.6 Adoption and the Human Rights Act 1998 . . . . . . . . . . . . . . . . 235
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
14 Adoption
page 226 University of London External System
Introduction
Adoption in England and Wales is entirely the creation of statute. The principal statute
governing adoption is now the Adoption and Children Act 2002 (ACA).
The effect of an adoption order is to irrevocably transfer the child from one family
to another by vesting parental responsibility for the child in the adopters (s.46(1)
ACA). From the date of the order the child is treated as if he or she had been born as
a child of the adopters marriage, and not the child of anyone else, and is classified as
legitimate (s.67 ACA).
The child becomes a member of his or her adoptive family, rather than his or her birth
family, for succession purposes and will gain British citizenship on adoption by a British
citizen if he or she does not already hold such citizenship (British Nationality Act 1981,
s.1(5)). Adoption does not serve as a complete transplant, however. It does not affect
the descent of any peerage or dignity or title of honour. Further, although the child
and his or her adoptive parents may not intermarry, no other adoptive relative is
deemed to come within the prohibited degrees for the purposes of marriage, while
the child remains within the prohibited degrees with respect to his or her birth family
(see Chapter 2).
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u state the purpose and legal effects of adoption
u say who may adopt and who may be adopted
u understand how an agency or court will decide whether to place a child with a
prospective adopter and how consent is obtained or dispensed with by the birth
parents
u explain the powers of the court in adoption proceedings and the orders it may
make
u describe the circumstances under which it will be appropriate to attach
conditions to an adoption order
u outline the status of the unmarried father in adoption proceedings
u describe the impact of the HRA on adoption.
Essential reading
Herring, Chapter 11, pp.635662.
Masson et al., Chapter 22, pp.817883.
Probert, Chapter 15, pp.335365.
Standley, Chapter 16, pp.433467.
Family Law 14 Adoption page 227
14.1 Adoption under the Adoption and Children Act 2002
Over time adoption has become a much more regulated process and there are limits
placed on who can arrange adoptions and those who are eligible to adopt. It is worth
making a distinction immediately between those public law adoptions, which involve
children being adopted from state care with or without their parents agreement, and
private adoptions which are also termed in family adoptions. These are adoptions which
involve family members so may see adoption by a parent and step-parent or an adoption
by grandparents or other relatives. Since 2002 the partner of the parent to adopt has
been able to adopt the child alone under s.52(2). These private adoptions have existed for
many years due to the informal arrangements within a family but the law has, at different
times, either chosen to relax its control over these adoptions or has increased its control
depending on the legal and social climate of the day.
The ACA 2002 was passed after a decade of reform suggestions, most particularly by the
Department of Health in 1992.
The Department of Health undertook an interdepartmental review of adoption law and
published its final paper in late 1992. Its central recommendations were as follows.
Recommendation 1
Adoption will continue to be a severance of legal links with one family and the joining
with a second and be irrevocable. Contact orders should be possible and the court
should continue to consider the viability of other orders under the CA. Where a
residence order is made to a person other than the childs parent or step-parent, that
person should be appointed inter vivos