Published: Wed, 07 Mar 2018
Introducing Family Law
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or Parallelewelten.net This Chapter was last updated on 27 July 2000
Family law, as the phrase is generally understood, deals with the creation and removal of legal status, its consequences, and the protection (both physical and financial) of family members. It is concerned mainly with the nuclear family – that is, with the relationships between spouses, and between parents (or guardians) and children. Members of the extended family have some rights and come into the picture occasionally, as do local authorities chiefly in their child protection role. The word “family” has various meanings: at its narrowest it may describe the traditional “nuclear family” of a father, a mother and young children, but it has much wider meanings too. It may include other relatives, adopted and fostered children, and (increasingly these days) cohabitants of the same or different sexes.
X Y & Z v United Kingdom (or Whittle v UK) (1997) 24 EHRR 143, ECHR
A female-to-male transexual complained that English law refused to register him as father of the children born (by artificial insemination) to his long-term female cohabitant. The European Court of Human Rights dismissed his complaint, saying national governments must be allowed a wide margin of appreciation in this changing area, but unanimously affirmed that “family life” in Art.8 extended to his situation. Factors such as the length of and mutual commitment to a relationship should be taken into account, and on the facts there were clear de facto family ties linking the applicant, his cohabitant and her child.
Fitzpatrick v Sterling Housing Association (1999) unreported, HL
Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P’s claim on the basis that he had been living “as the husband or wife” of the deceased – if Parliament had intended such a relationship to include same-sex partners it would surely have said so – but P could claim as “a member of the family” living with the deceased at the time of his death. The word “family” is used in many senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to exist between married couples, that would be enough to establish a family relationship.
Although statutes play a quite important part in family law – the Children Act 1989 is a particularly important piece of legislation, and there are others of similar significance – there are relatively few fixed principles. Such statutes often contain checklists of criteria to be applied or matters to be considered, but leave the ultimate decision to the judges. Judges therefore exercise a wide discretion particularly in matters relating to the care of children and the distribution of property on divorce.
The doctrine of precedent thus plays only a limited part in family law: most cases are regarded as having been decided on their particular facts, and can be distinguished without too much difficulty if following them would cause injustice. The Court of Appeal is reluctant to overturn the discretionary decision of a lower court unless it is blatantly unreasonable or clearly wrong in law.
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