Marriage in family law Essay Example

shapes the way the contemporary view deems what a family is. It is easy to define the functions of a family but it is harder, as academics have found to define who makes up the family.Historically, the definition of family has seen dramatic changes, with kinships being the definition of a family, to defining the family by way of blood to adopting a pragmatic stance and seeing the family as the nuclear family.

The rise of the nuclear family post World War two saw this type of family take priority and was seen as the best definition available. However, this ideal has now changed and I shall now proceed with an analysis of the current law and if this law reflects a modern day family.Weeks comments that the definition of family is being 'deployed by many people o denote something broader than the traditional relationship based on biology'4 Civil partnerships were introduced in 2004 after a long debate about the need to bring in line legal rights for heterosexuals and homosexual couples when deciding to commit to one another. Many see marriage as being the key defining aspect that defines the family unit. With the introduction of the Civil Partnership Act 2004, legal rights akin to marital rights have been given to people that decide to form civil partnerships which has somewhat bolstered the idea of the modern family.One such provisions of the CPA that reflects the modern view of family as including homosexual couples is section 75(3) CPA 2004.

Section 75(3) state that when determining parental rights, the word 'family' includes the 'two people who are civil partners of each other'. This, therefore back

up the point that homosexual couples are included in the modern definition of the family. The laws aim to include and reflect the modern family being that of a homosexual couple was noted in the seminal case of Fitzpatrick V Sterling Housing Association5.After the deceased died the homosexual partner of the deceased Mr Fitzpatrick claimed to have a right under the Rent Act 1977 to succeed to the tenancy.

For the purposes of the Rent Act 1977 the then House Of Lords decided that a gay or lesbian couple could be classed as a family. The decision to include homosexual couples within the definition of a family had widespread effect and has impacted on what the law sees as the family. Opining, Lord Slynn stated that to be classed as family one needs to fulfil the requirements of the family and certain hallmarks should be present.For example there needs be a 'degree of caring, love and commitment'6. With the introduction of the CPA it allows homosexual couples to commit to one another and therefore allows them to assert one of the main aims of a family i.

e. commitment and be termed as a family unit under the law. However it was noted in Joram Developments Ltd V Sharrat7 that because the two people did not share sexual relations with one another then they could not be deemed as a family. This would seem to suggest therefore that a key element in defining a family is that of sexual relationships or the possibility of a sexual relationship.

This would effectively bar any couple who do not have any sexual relationships as being classed as a family,

which in turn does not reflect the modern view of family. The amount of people that cohabitate in England is on the increase. According to national statistics 44% of children were born into non married households8 in 2006, compared with only 8% in 19719. However, the legal protection offered to cohabitants with children do not mirror the legal protection given to married couples.Therefore, the law fails to reflect the modern view of the family since if it did it would grant the same rights to unmarried couples.

The explanation for this stems from the historical obsession with marriage as the determining factor when describing what the family is. An example of the discrepancies is when it comes to parental responsibility. The law's desire to insist on marriage when determining family rights renders fathers in a relationship where cohabitation is the family type limitless, since under current law fathers who are not married do not get automatic rights.Therefore the law is failing to understand the complexities of the modern family.

In Burns V Burns10, the laws failure to equate family with that of both married and non-married partners was commented by Fox, LJ. Giving his opinion Fox, LJ stated that the amount of people that were choosing to live as cohabitants was so large it could not be considered as a 'temporary blip' and that any definition of the law in the future should include that of cohabitants. Fox, LJ opinion gives way for an analysis on the current law as it stands in regards to the definition of a family.We can see that as the law currently stands it fails to reflect in some regards

the modern day family. One of the functions of family law for many years has been the option to rear children and there is no other area of legislative reform that has seen such a dramatic change towards a reflection of the modern view of family than that of adoption and surrogacy.

A few generations ago, families consisted of a mum, a dad, and their children. Although gay and lesbian parents existed, they were not typically public about their sexual orientation and were not recognised in their communities.Today, however, families with gay or lesbian parents are widely seen and increasingly accepted. Many homosexual couples are choosing to become parents through adoption, artificial insemination, surrogacy, or foster parenting, while some gay and lesbian parents have children from previous heterosexual relationships. It is this area of law that has expanded and allowed the contemporary view of the family to come in line with the law. It has been noted that having children is a vital importance when describing the family, and many see the ability to raise children as the key element when describing a family.

This view, even though it has changed to some degree still exists in today's society. For the first time in English law unmarried and homosexual couples are now allowed to adopt children, with the passing of the Adoption and Children's Act. The move to lift the ban on gay and unmarried couples was described as the 'biggest overhaul in adoption for thirty years'11with this degree of rights conferred on them. Another advancement towards a modern view of family made by the law is by the passing of the Human Embryology and Fertilisation

Bill 200812.

One of the provisions of the act allows for retention of a duty to take account of the welfare of the child in providing fertility treatment, but replace the reference to "the need for a father" with "the need for supportive parenting" thereby valuing the role of ALL parents. This move towards allowing anyone to have a child reinforces the modern view of the family since it is inclusive of both homosexual and heterosexual families and by allowing gay couple and single people to obtain embryology treatment suggest that the law is fastly approaching the modern day view of family.So far, this essay has sought to evaluate whether or not the law promotes or fails to reflect the modern family. When addressing the issue the focus has been on positive requirements. However, I now turn to the protections that are not available to certain family types and therefore failing to represent the modern family. Single parent households account for 25% of all household in the United Kingdom13 and yet there is very little legal protection or law that reflects this position.

If the contemporary view of law is changing so should the changing foundations of the law, thereby the law should seek to reflect single parent families.Prior to 1996 single parents were entitled to claim a supplementary carers allowance which aimed at supporting the single parent model of family. However, this has since been abolished and single parents were stopped from claiming this additional allowance. One could assert therefore that prior to 1996 the laws reflection on single parent families did go so far to reflect the modern family but nowadays with the abolition

of certain rights does not reflect the rising trend of one parent families. Furthermore, another social trend that affects the make up of the definition of a family is that of divorce and re- marriage.

As the law currently stands step parents unless legally sought do not have any parental rights over their step children. With divorce being seen as more socially acceptable nowadays and therefore remarriage as an alternative family setting the law should seek to reflect this type of family settings. However this is not the case. Step parents do not share the same level of obligations and rights as natural birth parents. However the law does recognise the importance of step parents through the ability to gain parental responsibility.

With ever increasing divorce rates it seems essential the law does address the issue of step parents and their rights. Another growing trend that seems to be on the increase is that of the growing importance of grandparents when rearing children in the family. It has been noted that grandparents are becoming increasingly important in the family model and therefore the law should reflect this important element of the family. It is the importance of grandparents that has led to Geoff Dench and Jim Ogg suggesting that the traditional 'model of mother-father-child to mother-grandparents-child'14.Therefore, if this is the new type of parental model the UK is witnessing the law should reflect it. This is an example of where the law fails to act.

Grandparents have limited rights when it comes to claims over their grandchildren and yet play an influential part in their grandchild's upbringing. It is this occurrence that led to the leader of

the Conservative Party, now the Prime Minister, David Cameron to claim that under the Conservative manifesto grandparents would be given additional rights to reflect the position they play in a modern twenty first century.