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Vardags Family Law Essay competition 2023/24 | Jessica Wombwell

Jessica Wombwell - University of Chichester

The law surrounding establishment and termination is effective because it has adapted with lived family practice in relation to same sex marriages and the introduction of the Divorce, Dissolution and Separation Act 2020 (DDSA) which makes termination a simpler, painless process for parties involved. However, it is not effective as it is still discriminatory with certain religious ceremonies and despite the positives of the DDSA, others have said that it undermines the purpose of marriage. This essay will evaluate the effectiveness of the law surrounding establishment and termination of marriages and civil partnerships, specifically relating to the aforementioned points. Finally, it will evaluate the protections provided for cohabitants and domestic abuse victims specifically during a relationship breakdown.

Marriage involves a complex mix of social, legal, religious, and personal issues, making it hard to provide a single definition.2Thorpe LJ has provided a recent definition of marriage, describing it as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce because it affects status upon which depend a variety of entitlements, benefits and obligations. The Civil Partnership Act 2004 introduced civil partnerships which allowed same sex couples to be legally recognised as partners, which the Marriage Act 1949 did not allow until the amendments of the Marriage (Same Sex Couples) Act 2013.

The law has developed in accordance with lived family practice with the legislation introducing civil partnerships and later, the same sex marriage Act. This was an improvement on the previous law and, despite civil partnerships being offered to same sex couples, a viewpoint was held that a different procedure and label perpetuated the notion that same sex relationships were not as valid as heterosexual ones. The introduction of the Act demonstrated societies respect for individuals, regardless of their sexuality but also offered practicalities which benefit same sex couples. For example, where children are involved, marriage rights allow the birth parents spouse to have automatic parental responsibility, a practicality heterosexual couples have. This demonstrates an effectiveness of the law surrounding establishment as it has developed in accordance with lived family practice, making it accessible to more individuals.

On the other hand, the law has not fully developed to keep up with the changing times, specifically relating to religion. Although it is a valid marriage ceremony within Islam, in the UK, the Nikah ceremony is only recognised as a religious ceremony, carrying no legal weight. This means that under the law, couples who are only in a Nikah and did not get a civil marriage are considered to be a co-habiting couple. Despite the Census in 2021 stating that Islam is the second largest religion in the UK, the law has not developed to allow a Nikah ceremony to be legally binding. Due to this, those who wish to have this certain religious ceremony in the UK will not be classified as married, unless they apply for a civil marriage alongside, therefore not acquiring the automatic rights granted to married couples. Evidently, the law is not fully effective in relation to developing with lived family practice and religious practices, showing an element of discrimination still lingering in the UK law.

Divorce is legally ending your marriage, meaning the parties will no longer be legally joined.13 Examples of statistical links to divorce include being married as a teenager, having a lower level of education, and having children from a previous relationship. The law on divorce was previously governed by the Matrimonial Causes Act 1973 (MCA) but has been significantly amended by the DDSA.

Under the s.1(1) of the MCA, couples could only apply for a divorce if the marriage had irretrievably broken down and one of five facts had to be proved listed in s.1(2). In Owens v Owens, the Supreme Court acknowledged this system to be problematic as the five facts would cause disagreements and force the blame on to one of the parties which was embarrassing and did not allow for couples to separate amicably. The DDSA ended the need for couples to apportion blame for the breakdown of their marriage with the introduction of a no-fault divorce, allowing them to focus on key practical decisions involving children or finances. It has removed unnecessary finger-pointing as well as preventing one partner from contesting a divorce spitefully, commonly seen in domestic abuse cases. Dominic Raab stated the breakdown of a marriage can be agonising for all involved, especially children. We want to reduce the acrimony couples endure and end the anguish that children suffer. The introduction of a no-fault divorce shows an effectiveness of the law surrounding marriage termination as it has developed to reduce unnecessary hostility as well as importantly, putting children first.

Despite the effectiveness of divorce law, Christian Institute Director Colin Hart said that the DDSA is far from helping families stick together, making separating easier and quicker will lead to more divorces, more broken families and makes a mockery of the Governments claims to be pro-family. It can be argued that that having no-fault divorce undermines marriage and that breaking marriage vows, breaking a civil contract, does not matter, under the law of a no-fault based divorce. Historically, the state was the regulator of divorce, only permitting when satisfied there were good reasons for it; to divorce being at the will of one of the parties, and the law playing a record-keeping role. Divorce procedures are becoming closer to an administrative system rather than a legal system which has the risk of less regulation and parties not taking divorce seriously. This, however, allows for divorce to be a private matter, few legal professionals need to get involved while keeping things amicable between the parties. It is overall an effective concept to make the legal formality as painless as possible. However, there is improvement needed to the rights of domestic abuse victims and cohabitants during a relationship breakdown.

A key consideration that must be highlighted is protections for domestic abuse victims in relation to termination. The Domestic Abuse Act 2021 defines domestic abuse as behaviour of a person towards another person is domestic abuse if both parties are ages 16 or over and are personally connected to each other, and the behaviour is abusive. The law offers protection for victims of domestic abuse in forms such as non-molestation orders and occupation orders, both governed by the Family Law Act 1996. Furthermore, the no-fault divorce is beneficial to those leaving an abusive situation as only one person is required to submit the claim which no longer requires proof, and there is now limited opportunity to dispute divorce. However, legal system struggles to find the correct response to domestic violence, reasons for this include the traditional image of the family, privacy, difficulties of proof and victim autonomy. To improve, evidence suggests that using strategies such as inter-agency information sharing, co-location, multi-disciplinary teams and integrated programmes for perpetrators and victims, may all support reduced risk and improved outcomes for victims, perpetrators and their families.

Contrary to popular belief, common law marriage (CLM) is not a legally recognised status and therefore couples who assume they are in one, do not have the same rights as a married couple. The Cohabitation Rights Bill (2019-21) 97 is a Bill to provide protections for persons who live together or have lived together as a couple. Some believe that the Bill is a step towards achieving CLM. It aims to improve the law by offering protection to unmarried couples, like the protections held by married couples, mostly provided during a separation like splitting assets. It will also aim to offer protection if one partner dies, at present the law offers very little protection to unmarried cohabitants, especially if their partner dies intestate and the surviving partner does not fall under any class of persons eligible to automatically receive a share of the estate. However, the Bill has raised concerns about undermining marriage and civil partnerships, but is developing with lived family practice as fewer couples are marrying but still deserve protection. Despite this Bill not currently being in place, the law offers other forms of protection such as a cohabitation agreement and/or a Deed of Trust, which sets out how capital assets are to be owned.

To conclude, the law is effective surrounding establishment as it has developed in accordance with lived family practice, making it more accessible to more individuals. However, despite making progress in the right direction, the law is not effective in developing with religious practices, showing an element of discrimination still lingering in UK legislation. The introduction of a no-fault divorce shows an effectiveness of the law surrounding marriage termination as it has developed to reduce unnecessary hostility as well as importantly, putting children first. Despite some negative views on the no-fault based divorce, it is overall an effective concept to make the legal formality as painless as possible, also benefitting domestic abuse victims. There are plans to provide more protections to cohabitants, showing an effectiveness of the law as it continues to aim to develop with lived family practice, however, more can still be done to protect domestic abuse victims.

 

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Bibliography

Statute

Civil Partnership Act 2004

Divorce, Dissolution and Separation Act 2020 Domestic Abuse Act 2021

Family Law Act 1996

Marriage (Same Sex Couples) Act 2013 Marriage Act 1949

Matrimonial Causes Act 1973

Bills

Cohabitation Rights Bill (2019-21) 97

Cases

Bellinger v Bellinger [2001] 2 FLR 1048

Owens v Owens [2018] UKSC 41

Journals

Rymer Barnes A, Cohabitation Rights Bill and the Common Law Marriage Myth (2021) 8

N. E. L. Rev. 7

Cleaver K, A Review of UK based Multi-Agency Approaches to Early Intervention in Domestic Abuse: Lessons to be Learnt from Existing Evaluation Studies (2019) Volume 46 Aggression and violent behaviour

Amato P, Research on Divorce: Continuing Trends and New Developments (2010) Journal of Marriage and Family

Books

Herring J, Family Law (11th Edn, Pearson | 2023)

Websites

Beth Tutchener-Ellis, Does common law marriage exist in the UK? What you need to know (MFG Solicitors, 12/04/23

Child Law Advice, Divorce (Child Law Advice, 16/06/22)

Christian Institute, No fault divorce will lead to more broken families, warns pro marriage group, (Christian Institute, 2020)

Harrison Drury Solicitors, The Cohabitation Rights Bill – what does it mean for unmarried couples? (Harrison Drury Solicitors, Date Unknown),

Jill Rushton, How could the Cohabitation Rights Bill 2017-19 affect unmarried couples?, (The Gazette, 03.02.20)

Jordans Solicitors, Are Islamic Marriages Legal in the UK? (Jordans Solicitors, Date unknown)

Ministry of Justice, Blame game ends as no-fault divorce comes into force (gov.uk, 06.04.22)

Office for National Statistics, Religion by age and sex, England and Wales: Census 2021 (Office for National Statistics, 30/01/23)

Stewarts, No-Fault Divorce (Stewarts Law, Date unknown)

Tabitha McKie, Same Sex Marriage Legislation Explained (Avenue Solicitors, 31.01.17)

UK Parliament, Cohabitation Rights Bill [HL], (UK Parliament, 05/05/21)

UK Parliament, Islamic marriage and divorce in England and Wales (Catherine Fairbairn, 18.02.20)

Other

Baroness Young (1996) Hansard (HL) vol. 569, col, 1638, 29 February.

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