This chapter focuses on the particular phenomenon of cohabitation and considers the legal response to it. It begins by looking at the demographic and sociological picture concerning its growth and extent. It then considers how it has been defined and recognised in the law, in particular noting how far cohabitation is required to mimic marriage in order to be given such recognition. Cohabitation becomes most problematic for the law when the couple separate. The chapter examines how the law addresses this issue. It reviews proposed reforms and evaluates whether these should be adopted. It concludes by considering whether the example of cohabitation sheds light on other alternative forms of family organisation and what implications a shift from a focus on formal status to functional and practical family arrangements has for the body of law called ‘family’ law.
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N V Lowe and G Douglas
This introductory chapter begins with a discussion of the nature and scope of family law, covering the meaning of ‘family’ and the functions of family law. It then describes trends in family law; the family justice system; and the internationalisation of family law.
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Ruth Lamont
This chapter explores the nature of family life and the role of the law in family relationships to identify the particular challenges facing family lawyers. In particular, it considers how the law interacts with family life, how family relationships are identified in law, and what role the law plays in regulating family behaviour. The diversity and personalised experience of ‘family’ means that the role of the law in these processes is complex. There are two central issues facing family lawyers. First, the identification of a relationship as being one of ‘family’ for the purposes of the law is an important label, and may give rise to specific rights and obligations, even if the particular relationship bears no significance for the individual. Secondly, identifying the nature of the rights and obligations arising from a family relationship is central to determining the significance of the relationship.
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N V Lowe, G Douglas, E Hitchings, and R Taylor
This introductory chapter begins with a discussion of the nature and scope of family law, covering the meaning of ‘family’ and the functions of family law. It then describes trends in family law; the family justice system; and the internationalisation of family law.
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This chapter considers the civil law remedies which are designed to protect a victim from domestic abuse. The two primary protective orders under Part IV of the Family Law Act (FLA) 1996 are the non-molestation order and the occupation order which can be applied for and obtained in conjunction with each other, or separately. The chapter discusses the fact that the occupation order can also be used to regulate occupation of the family home in non-violent situations when a dispute arises between family members about who is entitled to occupy the home, and on what basis.
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In this chapter, there is a recognition that the intervention of equity in the family home represents a pragmatic response to a real problem, but it is not a perfect solution. It considers some of a number of grounds of critique of the current approach, including attempts at legislative reform to provide a solution. It can be criticized on a number of grounds, quite apart from the issue as to whether it constitutes a usurpation of a legislative function. There is also a consideration of whether the approach we have now has moved away from traditional assertion of property principles to a sense of redistributive justice more familiar to family lawyers.
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N V Lowe and G Douglas
This chapter considers the question of who has parental responsibility, or put another way, who the holders of parental responsibility are. It begins by examining the allocation of parental responsibility at the child's birth and subsequent to the child's birth. It considers over whom such responsibility exists. It concludes by discussing the duration of parental responsibility; the position where responsibility is shared between different holders; the delegation of responsibility; and the legal position of those caring for a child without having parental responsibility.
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This chapter addresses family provision, with particular reference to the Supreme Court’s decision in Ilott v The Blue Cross. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain persons can apply for financial provision out of the deceased’s estate on the grounds that the deceased’s will or intestacy (or a combination of the two) does not make reasonable financial provision for the applicant. The persons entitled to apply are the deceased’s surviving spouse or civil partner, former spouses or civil partners who have not remarried or entered a subsequent civil partnership, children, children of the family, dependants, and cohabitants. The remainder of the chapter covers the powers of court to make orders; the ‘standards’ applicable to applicants and the ‘matters’ which the court must take into account in applications for an order under the 1975 Act; and anti-avoidance provisions of the 1975 Act.
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Ruth Lamont
This chapter explores the nature of family life and the role of the law in family relationships to identify the particular challenges facing family lawyers. In particular, it considers how the law interacts with family life, how family relationships are identified in law, and what role the law plays in regulating family behaviour. The diversity and personalised experience of ‘family’ means that the role of the law in these processes is complex. There are two central issues facing family lawyers. First, the identification of a relationship as being one of ‘family’ for the purposes of the law is an important label, and may give rise to specific rights and obligations, even if the particular relationship bears no significance for the individual. Secondly, identifying the nature of the rights and obligations arising from a family relationship is central to determining the significance of the relationship.
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Patrick Nicholls
This chapter examines how families use and access the legal system, and the recent changes in family justice. The procedural aspects of family law claims and the funding of litigation has seen extensive changes in recent years that have heavily influenced the use of the courts by families and the development of the law. The chapter identifies the source of the legal procedures, and explains the underlying policies and rules which must be followed for persons to obtain what orders the family law courts can make. It also examines the impact of cuts to legal aid on the family justice system. The cuts in legal aid have resulted in many more persons acting for themselves before the court as ‘litigants in person’. This has resulted in significant delays which some argue have put the family justice system in crisis and pitched the judiciary against their political counterparts.
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The Family Law Act 1996 allows a court to make occupation orders to regulate the occupation of the family home. This chapter discusses the effect of occupation orders in that the general aim is to regulate the occupation of the family home. The tests for each order, duration, and which order to choose for the client are outlined under each section. What the court can order is also explained as well as ancillary orders and transfer of tenancies. A flowchart is provided in order to help work out which order to apply for, depending on the circumstances of the case.
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The Family Law Act 1996 allows a court to make occupation orders to regulate the occupation of the family home. This chapter discusses the effect of occupation orders in that the general aim is to regulate the occupation of the family home. The tests for each order, duration, and which order to choose for the client are outlined under each section. What the court can order is also explained as well as ancillary orders and transfer of tenancies. A flowchart is provided in order to help work out which order to apply for, depending on the circumstances of the case.
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This chapter examines the legal mechanisms by which children can be provided with long-term alternative secure family placements: the law on adoption and special guardianship. Topics discussed include: decision-making in relation to adoption; adoption agencies’ role in assessing suitable adoptions; rules relating to parental consent in adoption cases; placement for adoption; applications to adopt; post adoption contact; revocation of adoption; and special guardianship orders.
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This chapter explores how the family finances are dealt with following the breakup between cohabitants in non-formal relationships. In particular, it considers property law disputes between cohabitants on relationship breakdown and the application of the law of trusts to determine the resolution of such disputes. As these are principles of general application which have not been designed specifically to deal with the financial consequences of relationship breakdown between cohabitants, the chapter highlights how they are generally regarded as inadequate to resolve family property disputes, producing unfair outcomes in certain situations.
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N V Lowe and G Douglas
This chapter focuses on the fundamental legal status and one that is critical to family law, namely that of parenthood. It also discusses guardianship which, as it has now been developed, is a status akin to parenthood acquired through formal testamentary or judicial appointment by which appointed persons replace deceased parents for certain purposes during the child's minority.
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Essential Cases: Land Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in National Provincial Bank v Ainsworth [1965] AC 1175, House of Lords. The document also includes supporting commentary from author Aruna Nair.
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Essential Cases: Land Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in National Provincial Bank v Ainsworth [1965] AC 1175, House of Lords. The document also includes supporting commentary from author Aruna Nair.
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Essential Cases: Land Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in National Provincial Bank v Ainsworth [1965] AC 1175, House of Lords. The document also includes supporting commentary from author Aruna Nair.
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Ruth Lamont
Family life has become increasingly international and spread across different countries. People travel from their home country to work, study, and live abroad and in doing so may meet and form relationships abroad. For English family lawyers, international families may have connections with more than one legal system. For family members themselves, their international connections may mean that their personal relationships will fall to be regulated under a legal system that is different to that of the country from which they originate. This chapter explores when the English court will recognise family relationships created in other countries and take decisions regulating relationships with a foreign dimension. It considers the central aspects of international family law, the law relating to foreign marriage, divorce, and children, including international child abduction in order to examine how English law responds to these concerns.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with an overview of families and family law in England and Wales today. It then discusses themes and issues in contemporary family law, covering rules versus discretion; women’s and men’s perspectives on family law; sex and gender identity; sexual orientation; cultural diversity; and state intervention versus private ordering, including the role of the family court and of non-court dispute resolution in family cases, and challenges facing the family justice system.
