Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
The following is a more accessible plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Why the system has no justification
Ferguson: We’ve lost touch with the old ideas
Ancillary relief used to be about provision for wife during the marriage
When the couple married, the wife acquired a right to support during the marriage
Justified obligation on husband for the wife – could choose to give cash, land, food etc, but had to support her
Obligation attached to marriage and was during marriage
Current regime only kicks in when marriage ended
The obligation to support came from coverture – joining of legal personalities
All assets of wife became husband’s, so needed obligation to support
However, wife could not enforce this obligation even though it existed
But if she had need, she could operate the agency of necessity by taking things, and he would be billed for it.
Some statutes of this remain e.g. s.2 Domestic Proceedings and Magistrates Court Act 1978 (periodic payments lump sum orders under 1000) – now obsolete.
We then extended the obligation to support after relationship breakdown if she was faultless
MCA 1857 = allows divorce on fault
Only if W is innocent that entitled to divorce on limited grounds
Lord Penzance:
Without this, H will triumph over sacred permanence of marriage will be complete
To him, marriage will have been a temporary arrangement
To such a man, can still say that must support woman first chosen and discarded
Injury against her, not for her own sake
So far, so good. But then we extend W financial relief if she is at least partly at fault
Lady’s friend in Parliament was able to try and help her neogitate in divorce for some kind of relief
Ferguson: Guilty wife getting something is a problem if marriage is mutual obligation – she caused it to breakdown
The death knell - No fault divorce
1969-1984
Can decide to end legal status as no fault as matter of choice
But regime ties together financially
Going to respect legal status change, but not the financial consequences.. going to impose them instead
Can see this in different formulation
S.25 = obligation on the court was to place the parties as far as possible in situation as if marriage has not broken down
But this didn’t make sense b/c while we got rid of the dodgy justification (that we could give relief even when one party was at fault)
The checklist was left to be applied – with no new justification put in the place of the old justification.
Law com = somewhat difficult to have regime with no basis at all
Solution = introduce idea of “clean break” financial provision
What we should do is emphasise self sufficiency more, so consequences end sooner
But even if you do this, it’s part of the regime
Still forcing it, even if for small amount of time.
Can we find new justifications instead?
Spousal Support and Care of the children
Herring:
Supporting the child will inevitably involve providing benefits to the residential parents
i.e. luxury house!
But included in the support for children must be an element to provide personal care for the child
So one ground for spousal support is to ensure a spouse is maintained to the level so they can care for the child
Eekelaar and Maclean: Should equalise the standard of living of the two households, and thus of the children within them
This equalisation is not due to some kind of implied undertaking between the parties, but b/c of the moral claim of the child –
The child’s household should not be disadvantaged to the benefit of the non residential parent’s household.
BUT Ferguson:
But if this is the case, all of this could be achieved by the child support regime – doesn’t justify financial provision regime.
Also, financial provision applies even if couple have no children.
Contract
Herring: could be argued that one person has breached the marriage contract
So that the other person must pay “damages”
Each spouse promises to be a lifelong partner
So if a husband decides to divorce his wife, he must pay her damages so she is in the economic position she would have been during the marriage
BUT Herring:
Law has given up trying to work out who breached the contract
Most people don’t see marriage as a contract in this way
Partnership
For
Moge v Moge [CAN]: Marriage should be regarded as analogous to a partnership
The H and W co-operate together as part of a joint economic enterprise, each providing common benefits
E.g. H provides money from job, W makes the home
Lord Nicholls in Miller v Miller:
In marriage, the parties commit themselves to sharing their lives
When their partnership ends, each is entitled to an equal share of the assets of the partnership,
unless there are good reasons to the contrary - fairness requires no less.
Against
BUT Eekelaar: Partnership does not necessarily lead to equal division
At the end of the relationship, investment each party has put in is one side of the balance sheet
And this is set against assets and the earning power which each has at that time
If there is disparity, an adjustment will be made to equalise the position – marriage is a joint enterprise demanding equal rewards for equal effort
Herring:
The partnership approach might be inappropriate in the absence of some express agreement to share the family assets
Ferguson: Division of the partnership in others contexts tends to be based on effort
If one party based on effort, than one person entitled to more or less on effort
But this doesn’t look like the financial relief regime though...
Herring
Herring: Three difficulties
The...
Buy the full version of these notes or essay plans and more in our Family Law Notes.
Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
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