Aspects of Family Law - Coursework Example

?FAMILY LAW of Family Law Q1: Advising Sue and the possible legal action regardingBarry’s Continuous Assault and Abuse The marriage between Barry and Sue is occasioned by domestic violence whereby Barry is regularly violent to Sue. As a result of violence, Sue has suffered numerous injuries ranging from a black eye to bruised ribs. The violence turned out to be too extreme to an extent that Barry punched Sue in the stomach and face. Also, it is reported that Barry grabbed her by the throat and locked her out of the flat. Sue can no longer tolerate such extreme levels of violence and wants Barry out of the rented flat. However, Barry is registered disabled after suffering a back injury a few years ago. His mobility is limited and the flat has been adapted to suit his needs; the couple were given a ground flat because Barry finds it difficult to climb stairs. Therefore, any legal advice to Sue in regard to her intention to have Barry out of the flat should consider the following; the couple are married or in civil partnership, they live in a rented flat (they do not own a home), the marriage is characterized by domestic violence, and Barry is a registered disabled. As such, Sue has several options regarding her attempt to have Barry out of the flat. However, there are some legal provisions that make this intention difficult to execute. Sue cannot have Barry out of the flat because they are married and as long as the status of marriage has not changed both partners have rights to occupy matrimonial or civil partnership dwelling- house. This right is granted under the Family Law Act 1996: Rights to occupy matrimonial or civil partnership home (section 31) (The National Archives, 2011). As decided in A v A [2004] EWHC 142 (Fam), each partner in civil partnership or marriage has a right to occupy matrimonial dwelling- house until the status of marriage changes through divorce.1 Since the attempt to have Barry out of the flat may prove futile when the current marriage status persist as seen in the decision on Dolan v Corby [2011] EWCA Civ 1664, Sue should consider other options.2 It is no doubt that domestic violence is the main reason that makes Sue to contemplate having Barry out of the flat; therefore, she can decide to take legal actions on Barry for violence. Legal actions against Barry can lead to two possible outcomes; Barry will be charged for domestic violence and may be fined or imprisoned, or both, and secondly, the court may grant a divorce if it establishes that Barry behaved so badly and the couple cannot reasonably be expected to live together any longer as decided in Yemshaw v London Borough of Hounslow.3 In the first scenario, she would have had Barry out thanks to imprisonment; in an event Barry is fined, he may have learned his lessons and stop drinking heavily hence not causing harm to his wife. Besides, Sue has another option which is out- of- court alternative; she can take Barry to rehabilitation centre or to counselling specialist to help him reduce or stop heavy drinking thus restoring normalcy in marriage, because apparently the violence is caused by Barry’s heavy drinking behaviour. Lastly, considering that Barry is registered disabled, having him out of the flat that has been adapted to suit his needs may prove inappropriate regardless of his wrongdoings. This is because the Disability and the Equality Act 2010 requires that the interests of the registered disabled be given utmost priority especially by the carer such as spouse or parent.4 It is therefore appropriate that Sue considers all these aspects and exhaust out-of-court options such as seeking counselling and rehabilitation services before resorting to court. Q2: Civil Partnership Act 2004 and its Implications on Same Sex Marriages The Civil Partnership Act 2004 is an Act that governs Civil Partnership in the United Kingdom. Most provisions of the Act govern the new responsibilities and rights conferred on couples of same sex and who are registered as civil partners. The same- sex couples are entitled to similar property rights as opposite- sex civil partners. In addition, the Act provides the same- sex couples with similar exemption to married couples on pension benefits, social security, and inheritance tax. Apart from that, the Act gives same- sex couples the ability to get parental responsibility for children of the other partner, next-of-kin rights, recognition of full life insurance, and tenancy rights. Besides, it provides for a formal process similar to divorce for dissolving same- sex partnership. Just like in civil marriage, civil partnership ends only on death, annulment or dissolution (Rayson and Mallender, 2005, p. 21). In the light of the aforementioned aspects of Civil Partnership Act 2004 that are similar to the civil marriage, it is evidently clear that the Act made the position of same sex couples equal to that of heterosexual married couples. Any claims of discrimination for same- sex couples are now redundant. However, the extent of redundancy in this respect can be argued upon. This is because, in as much as the Civil Partnership Act 2004 has greatly reduced discrimination of same- sex couples, it has not fully eliminated discrimination as there are some aspects addressed in civil marriage that are yet to be entrenched in civil partnership. It is no doubt that Civil Partnership Act has gone a long way in reducing discrimination against same- sex couples. As has been noted above, most of civil marriage rights and responsibilities have been granted to civil partnership. However, there are some rights enjoyed by heterosexual married couples that are not enjoyed by same- sex couples. Also, there are some aspects of discrimination. For instance, civil partnerships are prohibited to include religious symbols, music, or readings and to conduct their ceremonies in religious venues. There is no law that compels religious venues to offer civil partnerships as noted in Hall and Preddy v. Chymorvah Hotel.5 Also, discrimination arises because civil partnership is not called marriage, thus making same- sex couples not to be immediately recognized on paper. Additionally, the pension scheme in the United Kingdom is complicated and the benefits cannot be said to be entirely equal for civil partners when compared to benefits of married couples. Q3: Advising on Her Intention to Pursue Divorce Proceedings Kate and Jonathan marriage has some problems emanating mainly from Jonathan’s suspicious and possessive behaviour. Also, it has become apparent that Jonathan has been having an affair with a female colleague, Sarah, at work for the past three years. Due to the problems in this marriage, Kate now intends to issue divorce proceedings, and Jonathan wants to Divorce as soon as possible and marry Sarah in three months. In advising Kate, I will let her know that divorce is granted on the basis of the irretrievable marriage breakdown. Currently, there are five grounds for divorce that can be relied upon to provide evidence of the irretrievable breakdown of marriage namely; desertion, adultery, two years’ separation with consent, unreasonable behaviour, and five years’ separation without consent. Since is divorce is costly both financially and emotionally especially between couples who have children, I would advice Kate to attempt to attempt to reconcile her differences with Jonathan. However, if she finds that there is irretrievable breakdown of marriage, she should seek to issue divorce proceedings. If she finds issuing of divorce proceedings as the best option, she should follow the steps involved in doing so. Her residence and that of her husband satisfy the residence requirement required by law in order to initiate the issuing of divorce proceedings. Also, she should have reasonable ground(s) for divorce. In this respect, I will advise her to cite unreasonable behaviour of Jonathan as her ground for divorce. In order to obtain a divorce on this ground, English law insists on the following; there is irretrievable breakdown of marriage, and that one marriage party has behaved in an unreasonable manner such that the other party finds it intolerable to live with her or him as emphasized in the decision on A v L [2010] EWHC 460 (Fam).6 With this understanding, and after trying to salvage her marriage to no avail, she can issue divorce proceedings. In regard to Jonathan, he should make several considerations before deciding to marry Sarah. Even though his marriage has problems, he should seek to resolve the problems with his wife Kate especially considering that they have two children who need the care of both parents. However, if he finds it difficult to do that, he should navigate the legal issues surrounding his intended marriage to Sarah. Since the United Kingdom law does not allow polygamy; Jonathan has to divorce his first wife in order to marry Sarah. Therefore, he has to issue divorce proceedings. In doing so, he has to follow the entire required procedures key among them establishing reasonable ground(s) for divorce. The most appropriate ground for divorce is unreasonable behaviour where he can argue that his spouse has behaved in unreasonable manner such that he finds it intolerable to live with her. He can also state that the marriage has broken down irretrievably. More importantly, I will advise him to consider extending the time within which he intends to marry Sarah because three months is too short. Divorce proceedings take a considerably longer time and three months is insufficient to exhaust all the necessary steps and eventually dissolve a marriage. In the case of Jonathan, the proceedings may take longer because they have had children between them during the marriage as was evidenced in B v D 2008 EWHC 1246 (Fam).7 Also, application for a decree nisi and decree absolute may take long time. In most cases, straight forward cases take between 4- 6 months. Reference List A v A [2004] EWHC 142 (Fam) A v L [2010] EWHC 460 (Fam) Baksi, C, 2011, Supreme Court Widens definition of violent abuse: Yemshaw v London Borough of Hounslow, Available at http://www.lawgazette.co.uk/news/supreme-court-widens-definition-violent-abuse B v D 2008 EWHC 1246 (Fam) Disability and the Equality Act 2010, Available: http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068 Dolan v Corby [2011] EWCA Civ 1664 Family Law Week, 2011, A v A [2004] EWHC 142 (Fam), Available: http://www.familylawweek.co.uk/site.aspx?i=ed57 Hall and Preddy v. Chymorvah Hotel Rayson, J, and Mallender, P 2005, The Civil Partnership Act 2004: A Practical Guide, Cambridge University Press. The National Archives, 2011, Family Law Act 1996, Available: http://www.legislation.gov.uk/ukpga/1996/27/section/31 Yemshaw v London Borough of Hounslow Read More