Family Law Articles
- Legal constructions of the 'family'
- Institutions of Marriage and Civil Partnerships
- Law of Marriage and Civil Partnership
- Domestic Abuse
- Legal construction of the 'child'
- Grandparents
- Adoption and Special Guardianship
Legal constructions of the 'family'
Legal Constructions of ‘Children’ and ‘Childhood’
Understanding the Category of ‘The Child’ 1. Why It Matters How We Think About Children: • Children as Being vs. Becoming: ◦ Being: Children as individuals with rights and agency in their own right. ◦ Becoming: Children as persons in the process of development, which may justify different legal treatment and protections. 2.
Oscar MacDonald
Family, Friends, and Migration: Evolving Legal Perspectives
The intersection of family, friendships, and migration laws reveals complex dynamics shaped by evolving social norms and legal frameworks. These dynamics are particularly evident in migration policies, the recognition of non-traditional relationships, and the shifting understanding of family and friendship. Migration Policies and the Notion of Family Elisabeth Strasser: ’Doing
Oscar MacDonald
Conceptualising ‘Family’ and ‘Family Life’
The legal and societal concepts of ‘family’ and ‘family life’ are continuously evolving, reflecting changes in social norms, relationships, and cultural values. Several landmark cases and academic perspectives illustrate the complexities and challenges of defining and protecting these concepts under the law. Legal Cases Challenging Traditional Notions of Family Senchishak
Oscar MacDonald
Examining Family Law: Approaches and Perspectives
Family law is a complex field that intersects with social, ethical, and legal norms. Various approaches to examining family law provide distinct perspectives on how the law interacts with and shapes family life. Three key approaches include the functionalist approach, feminist perspectives, and the exploration of the public/private divide.
Oscar MacDonald
Current Issues in Family Law
Family law is a dynamic field that reflects the evolving values and challenges of society. Today, several critical issues are shaping the discourse around family law, including autonomy, moral judgments, multiculturalism, religious diversity, and the impact of changing family structures. This overview highlights the key debates and perspectives that are
Oscar MacDonald
“Evolving Legal Perspectives on Marriage, Family, and Polygamy: Challenges and Opportunities”
Zainab Naqvi on Polygamy and Law Liberalisation • Perception of Liberalisation: ◦ Appears that the law is becoming more liberal, especially with: ▪ Acceptance of same-sex marriage. ▪ Introduction of no-fault divorce. ▪ Prevention of forced marriages. • Polygamy Remains Unregulated: ◦ Despite other liberal developments, there has been no progress in regulating polygamous marriages. ◦ Legal opinions
Oscar MacDonald
Institutions of Marriage and Civil Partnerships
The Institutions of Marriage, Civil Partnerships, and the Rise of Cohabitation
The traditional institutions of marriage and civil partnership (CP) are facing significant shifts in their cultural significance and legal standing, influenced by societal changes and the rise of cohabitation as an alternative form of intimate relationship. The legal and social landscape is evolving, with these changes reflecting broader transformations in
Oscar MacDonald
Cohabiting Couples: A Diverse and Expanding Category
Cohabitation as a living arrangement encompasses a wide variety of relationships, ranging from temporary living arrangements, such as two students sharing an apartment, to long-term partnerships where couples deliberately avoid marriage but live together as if they were married. The legal recognition and implications of cohabitation have evolved significantly, reflecting
Oscar MacDonald
The Concept and Purpose of Marriage
Marriage, as both a legal and social institution, carries a multitude of meanings and purposes that vary across cultures and individuals. Scholars like Eekelaar, Maclean, and others have explored the reasons why people marry and what marriage represents in society, contributing to an ongoing debate about its relevance and meaning
Oscar MacDonald
Debates Over Marriage: Same-Sex Marriage and Legal Reforms
The debates surrounding marriage, particularly the legalisation of same-sex marriage, have raised profound questions about equality, religious freedom, and the evolution of societal norms. These discussions have highlighted the tension between traditional views of marriage and the push for legal recognition of diverse forms of relationships. The Case of Home
Oscar MacDonald
Civil Partnerships: Evolution, Legal Framework, and Comparison with Marriage
Civil partnerships (CPs) were introduced in the UK through the Civil Partnership Act 2004, following the decision in the Ghaidan v Godin-Mendoza case, which highlighted the need for legal recognition of same-sex relationships. Initially, CPs provided a way for same-sex couples to formalise their relationships with the same legal treatment
Oscar MacDonald
Discrimination and Scholars on Marriage and Civil Partnerships
Discrimination and ECHR Rights The question of whether treating married and unmarried couples differently breaches Articles 8 and 12 of the European Convention on Human Rights (ECHR) has been the subject of significant legal debate. Gomez v Spain (1998): In this case, a woman who had lived with her partner
Oscar MacDonald
Law of Marriage and Civil Partnership
The Law of Marriage and Civil Partnerships (CP) and Reforms
Forming a Civil Partnership 1. Preliminary Requirements: ◦ Notice of CP: Couples must give formal notice of their intention to enter into a civil partnership. ◦ Waiting Period and Application: There is typically a waiting period after notice is given before the civil partnership can be formally registered. 2. Ceremony Requirements: ◦ Signing
Oscar MacDonald
The Law of Nullity and Void Marriages
The law of nullity deals with the validity of marriages and civil partnerships (CPs) and distinguishes between marriages that are legally valid, void, or voidable. Understanding these categories is crucial for addressing the rights and obligations arising from marital and CP relationships. Categories of Marital and CP Validity 1. Valid
Oscar MacDonald
Voidable Marriages and Civil Partnerships
Voidable marriages and civil partnerships (CPs) are those that are legally valid until annulled due to specific defects. Unlike void marriages or CPs, which are considered invalid from the outset, voidable marriages or CPs are initially considered legal but can be annulled if certain conditions are met. Grounds for Voidability
Oscar MacDonald
Bars to Relief in Voidable Marriages and Civil Partnerships
Voidable marriages and civil partnerships (CPs) can be annulled based on specific grounds, but there are several bars to relief which can prevent the annulment of a marriage or CP. These bars are outlined in sections 13 of the Matrimonial Causes Act 1973 (MCA) and 51 of the Civil Partnership
Oscar MacDonald
Marriage and the Definition of Sex
The legal recognition of gender and the definition of sex have significant implications for marriage laws. Key statutes and case law reflect how gender identity intersects with marital status and rights. Gender Recognition Act 2004 1. Application for a Gender Recognition Certificate (GRC): ◦ Section 1(1): Individuals aged 18 or
Oscar MacDonald
Divorce and Dissolution
Overview • Divorce: Legal dissolution of a marriage. • Dissolution: Legal termination of a civil partnership (CP). Divorce, Dissolution and Separation Act 2020 This Act introduces significant reforms to the divorce and dissolution processes in England and Wales, aiming to simplify procedures and reduce conflict. 1. Application Process ◦ Grounds: An application can
Oscar MacDonald
Domestic Abuse
Nature and Extent of Domestic Abuse
Defining Domestic Abuse Michelle Madden Dempsey’s Evaluation Framework: Dempsey proposes an evaluative test for understanding domestic violence (DV), focusing on three core elements: 1. Violence: Direct physical force and its legitimacy (e.g., self-defence). 2. Domesticity: The domestic setting (typically the home) and the nature of the relationship, highlighting
Oscar MacDonald
Law on Domestic Abuse in England and Wales
Types of Domestic Abuse 1. Intimate Partner Abuse: • Characteristics: Includes physical, emotional, and psychological abuse within intimate relationships. • Post-Separation Abuse: Abuse that continues even after the relationship has ended, often facilitated by technology. Examples include stalking and harassment via social media or digital communication. 2. Teenage Relationship Abuse: • Challenges: Teenagers
Oscar MacDonald
Domestic Abuse: Contact and Gender
1. Contact Decisions in Domestic Abuse Cases Re L (A Child) (Contact: Domestic Violence) [2001]: • Case Summary: This case involved a father appealing a refusal of contact with his child due to domestic abuse (DA) concerns. • Court Ruling: Butler-Sloss P emphasised that domestic violence alone cannot bar contact. Instead, it
Oscar MacDonald
Legal Measures and State Obligations in Relation to Domestic Abuse
1. Radhika Coomaraswamy’s Framework Radhika Coomaraswamy, ‘Combating Domestic Violence’ (2000): • Domestic Violence as a Human Rights Violation: Coomaraswamy argues that domestic abuse constitutes a violation of human rights. She highlights the state’s “double duty” under international human rights law: 1. Duty Not to Commit Violations: States must not perpetrate human
Oscar MacDonald
Non-Molestation Orders and Occupation Orders
Non-Molestation Orders Legal Framework: • Family Law Act 1996 (FLA 1996), Sections 42-42A: Non-molestation orders are designed to provide protection from molestation. They are less intrusive than occupation orders and are commonly used. Key Cases and Interpretations: 1. Vaughan v Vaughan [1973]: ◦ Judicial Interpretation: LJ Stephenson described “molest” as a broad
Oscar MacDonald
Occupation Orders
Legal Framework Family Law Act 1996 (FLA 1996), Sections 33-40: • Purpose: Occupation orders address the right to occupy the family home and can remove an abuser from the property, providing the victim with the right to enter or remain in the home. Eligibility to Apply: 1. S.33 Who Can
Oscar MacDonald
Notices and Orders under the Domestic Abuse Act 2021
Introduction The Domestic Abuse Act 2021 (DAA) introduces new measures for the protection of victims of domestic abuse. These measures will replace some of the existing orders under the Crime and Security Act 2010, including Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs). The DAA also introduces
Oscar MacDonald
Criminal Law and Domestic Abuse: Key Points
Offences Under General and Specific Law 1. General Offences: • Offences Against the Person Act 1861: ◦ Covers various violent offences including assault, battery, and grievous bodily harm. 2. Specific Offences: • Domestic Abuse Act 2021, Section 70: ◦ Strangulation or Suffocation: Introduces a specific offence targeting strangulation and suffocation within the context of
Oscar MacDonald
Legal construction of the 'child'
Legal Constructions of ‘Children’ and ‘Childhood’
Understanding the Category of ‘The Child’ 1. Why It Matters How We Think About Children: • Children as Being vs. Becoming: ◦ Being: Children as individuals with rights and agency in their own right. ◦ Becoming: Children as persons in the process of development, which may justify different legal treatment and protections. 2.
Oscar MacDonaldGrandparents
The Role of Grandparents in Family Law and Childcare
Overview Grandparents occupy a unique position between public and private family law, reflecting both their significant involvement in family life and the challenges of formal legal recognition. Jill Elaine Hasday highlights the traditional focus of family law on marriage and parenthood, often neglecting other critical familial relationships, such as those
Oscar MacDonald
Grandparents in Public Proceedings: Involvement and Legal Considerations
1. Grandparents as Alternative Carers Legal Framework: • Child Arrangements Orders and Special Guardianship Orders (SGOs): These are designed to offer stable care arrangements for children, often used when parents are unable to care for them but where adoption is not deemed appropriate. ◦ Child Arrangements Order: Determines where the child will
Oscar MacDonald
Grandparents in Private Proceedings: Implications of Parental Separation
1. The Implications of Parental Separation for the Grandchild-Grandparent Relationship Understanding the Dynamics: • Margaret M. Mueller and Glen H. Elder: Emphasise that family relationships, including those between grandparents and grandchildren, are embedded within a complex network of family ties. This embeddednrss is crucial for understanding how separation affects these relationships.
Oscar MacDonald
Debates About Reform in Grandparental Rights and Involvement
1. Requirement to Obtain Leave Should This Requirement Exist? The requirement for grandparents to obtain leave from the court before applying for contact or residence orders under Section 8 of the Children Act 1989 is a contentious issue. This requirement ensures that only those with a genuine interest in the
Oscar MacDonald
Adoption and Special Guardianship
Special Guardianship and Adoption
Nigel Lowe’s “The Changing Face of Adoption” Nigel Lowe discusses two evolving models of adoption that reflect broader societal changes and legal developments: 1. Gift/Donation Model: ◦ This traditional model views adoption as the final act in a process where birth parents “gift” or “give away” their child to adopters.
Oscar MacDonald
Adoption Law: Key Provisions and Case Law
Preliminaries to Adoption: Adoption and Children Act 2002 1. Section 42: Child to Live with Adopters Before Application ◦ Before an adoption application can be made, the child must have lived with the prospective adopters for a specific period. This requirement ensures that the child has had time to adjust to
Oscar MacDonald
Secret Birth Cases: Legal Principles and Jurisprudence
Overview Secret birth cases present a complex intersection of the mother’s right to privacy, the father’s and wider family’s rights to be informed, and the child’s right to know their origins. These cases often involve mothers who wish to keep their pregnancy and the birth of the child hidden, particularly
Oscar MacDonald
Special Guardianship: Legal Framework and Key Case Law
Introduction to Special Guardianship Orders (SGOs) Special Guardianship Orders (SGOs) were introduced under sections 14A-F of the Children Act 1989 as a middle ground between adoption and long-term foster care. SGOs provide a stable and secure environment for children who cannot live with their birth parents, offering an alternative that
Oscar MacDonald
Post-Adoption Contact: Legal Framework and Developments
Historical Perspective on Post-Adoption Contact Historically, the concept of post-adoption contact between an adopted child and their birth family was met with resistance. • JC Hall (1987): Described post-adoption contact as “repugnant to the purpose of adoption,” reflecting the traditional view that adoption was intended to create a clean break between
Oscar MacDonald
Sibling Relationships in the Context of Adoption and Care
Legal Framework 1. Children Act 1989: ◦ Section 22C: Requires local authorities to accommodate “looked after” siblings together, reflecting the importance of maintaining sibling bonds. ◦ Section 34(11): Courts must consider sibling contact arrangements before making a care order, underscoring the significance of these relationships in care proceedings. ◦ Section 10: Siblings
Oscar MacDonald