Family Law

by Welstead, Mary; Edwards, Susan

• ISBN13: 9780199282357
• ISBN10: 0199282358
• Format: Paperback
• Copyright: 2006-07-13
• Publisher: Oxford University Press

Summary

This first edition of Family Law offers a fresh, clear and concise introduction to the subject. Designed to map directly onto mainstream university courses, the book provides an overview of the major issues and debates in family law in England and Wales. Current changes are explained and critically evaluated.

Author Biography

Dr Mary Welstead heads up the teaching of family law and property law at the University of Buckingham. She has lectured throughout the world on domestic violence, the rights of cohabitants and issues of consent to medical treatment in multi-cultural societies.
Prof Susan Edwards is a teacher, barrister, researcher and campaigner with degrees in both law and social sciences. Her areas of expertise include criminal law, child law, gender and policing. She has been involved with several Home Office projects as well as working closely with NGOs. Professor Susan Edwards is a barrister and a well-known writer and broadcaster on feminist issues. She teaches family law, sex and gender in the legal process, and criminology at the University of Buckingham.
Dr Welstead and Professor Edwards are Co-Directors of the Centre for Multi-Cultural Studies in Law and the Family at Buckingham University.

Table of Contents

Abbreviations	xiv
Table of cases	xv
Table of statutes	xxvi
Introduction to family law and its changing dimensions	1	(8)
What is family law?	1	(1)
Family law or freedom of contract?	2	(1)
Changing definitions of family	2	(3)
Excluded relationships	5	(1)
Changing concerns of family law	6	(1)
Organization of the text	7	(2)
Further Reading	7	(2)
State intervention in personal relationships	9	(17)
Form v function	9	(1)
A dual approach	10	(1)
Definition of marriage	10	(1)
Capacity to marry	11	(3)
Formalities of marriage	14	(3)
Common law marriage	17	(1)
Presumption of marriage by cohabitation and repute	17	(3)
Civil partners	20	(1)
Capacity to register a civil partnership	21	(1)
Mental capacity	22	(1)
Formalities of civil partnership	22	(1)
Cohabitants	22	(4)
Further Reading	23	(1)
Self-Test Questions	24	(2)
Nullity and its consequences	26	(22)
Nullity: an unimportant concept?	26	(1)
Void or voidable relationships	27	(1)
Void relationships	28	(1)
Grounds on which a marriage will be void	28	(4)
Grounds on which a civil partnership will be void	32	(2)
Voidable relationships	34	(1)
Grounds on which a marriage will be voidable	35	(7)
Bars to relief where a marriage is voidable	42	(1)
Grounds on which a civil partnership will be voidable	43	(1)
Bars to relief where a civil partnership is voidable	44	(1)
Consequences of nullity for married couples and civil partners	45	(3)
Further Reading	46	(1)
Self-Test Questions	47	(1)
Acquisition of rights in the family home	48	(23)
The family home: an overview	48	(1)
Informal trusts	49	(1)
Resulting trusts	50	(1)
Constructive trusts	51	(7)
Proprietary estoppel	58	(4)
Contracts	62	(3)
Family Law Act 1996, Part IV	65	(2)
Bankruptcy	67	(4)
Further Reading	69	(1)
Self-Test Questions	69	(2)
Domestic violence	71	(19)
Incidence, nature, and causes of domestic violence	71	(1)
Criminal remedies	72	(2)
Civil remedies	74	(1)
Family Law Act 1996, Part IV: occupation rights	74	(7)
Family Law Act 1996, Part IV: non-molestation orders	81	(2)
Protection from Harassment Act 1997	83	(1)
Injunctions in other civil proceedings	84	(1)
Domestic violence and human rights	84	(1)
Forced marriage and domestic violence	84	(1)
Asylum and domestic violence	85	(1)
A final criticism: the way forward	86	(4)
Further Reading	87	(1)
Self-Test Questions	88	(2)
Ending relationships	90	(18)
Divorce	90	(1)
Statistical evidence of divorce	91	(1)
Reasons for increase and its consequences	91	(1)
The divorce process	91	(2)
Ground for obtaining a divorce	93	(1)
The five facts	93	(9)
Reconciliation	102	(1)
Consequences of divorce	102	(1)
Critique of current law	103	(1)
Reform	103	(1)
Judicial separation	104	(1)
Civil partnerships	105	(3)
Further Reading	106	(1)
Self-Test Questions	106	(2)
Financial consequences of ending relationships	108	(36)
Ownership of property during the relationship	108	(4)
Rights to maintenance during the relationship	112	(4)
Financial consequences of ending the relationship	116	(2)
Ancillary relief on divorce, judicial separation or nullity	118	(3)
The statutory charge	121	(1)
Variation of capital orders and orders relating to the family home	121	(3)
The statutory guidelines	124	(12)
Agreements	136	(2)
Ancillary relief for civil partners	138	(1)
Cohabitants	139	(1)
Fiances	140	(4)
Further Reading	141	(1)
Self-Test Questions	142	(2)
Death and its consequences	144	(17)
Presumption of death	144	(2)
Funeral arrangements	146	(1)
Testate succession	147	(1)
Intestate succession	147	(3)
Claims under the Inheritance (Provision for Family and Dependants) Act 1975	150	(7)
Fatal Accidents Act 1976	157	(4)
Further Reading	159	(1)
Self-Test Questions	160	(1)
Parents: rights and responsibilities	161	(30)
Who is a parent in fact?	162	(2)
The social reality of parenting	164	(4)
What is a legal parent? The current law	168	(1)
Who is a legal parent? The current law	168	(7)
Historical legacy: parental rights to responsibilities	175	(3)
Demise of paternal authority	178	(3)
The natural parent presumption strikes back	181	(4)
More than just nomenclature: from rights to responsibilities	185	(1)
Meaning of parental responsibility	186	(5)
Further Reading	189	(1)
Self-Test Questions	189	(2)
From clean break to open adoption	191	(28)
History of UK adoption	191	(3)
Adoption and Children Act 2002: a snapshot	194	(3)
Adoption services	197	(3)
Domestic adoptions: who can adopt?	200	(2)
Matching parents to children and children to parents	202	(4)
Regulation and review of decisions	206	(1)
Court orders	207	(3)
Adoption: is it really a course of last resort?	210	(1)
Who adopts today?	211	(2)
Welfare test in adoption: family human rights	213	(2)
The move to openness	215	(1)
Human rights: genetic identity	216	(3)
Further Reading	217	(1)
Self-Test Questions	217	(2)
Adolescent rights: autonomy and participation	219	(28)
Rights of the child: general principles	219	(1)
The three `ages' of rights of childhood	220	(5)
Adolescent autonomy: what adolescent autonomy?	225	(1)
The law on adolescent competence	226	(7)
Testing the application of `Gillick competence'	233	(6)
Principles involved in reaching a `Gillick competence' determination	239	(1)
`Gillick competent' at last!	240	(2)
`Gillick competent': so what?	242	(1)
On the road to adolescent rights	243	(1)
`Gillick competence': it's for real	244	(3)
Further Reading	245	(1)
Self-Test Questions	245	(2)
Children's welfare and private disputes	247	(24)
When parents fall out	247	(2)
Partnership principle	249	(1)
Child welfare: paramount consideration	250	(1)
Court orders	251	(1)
Welfare checklist: six factors	251	(7)
`No order' principle	258	(1)
Orders under the Children Act 1989	259	(6)
Child abduction	265	(6)
Further Reading	269	(1)
Self-Test Questions	269	(2)
In the child's best interests: the jurisdiction of wardship	271	(24)
Ancient and modern wardship	271	(3)
The jurisdiction of wardship	274	(1)
Test to be applied in wardship	275	(2)
Wardship and the Children Act 1989	277	(1)
What kind of cases invoke wardship?	278	(8)
Life and death matters	286	(5)
Human rights and treatment	291	(4)
Further Reading	293	(1)
Self-Test Questions	293	(2)
Child protection: public law procedure	295	(26)
What is child abuse?	295	(3)
Physical abuse (non-accidental injury)	298	(3)
Sexual abuse	301	(1)
Emotional abuse	302	(2)
Neglect	304	(1)
The law	305	(1)
Significant harm	305	(1)
The investigative process	306	(6)
Orders during the preliminary stage	312	(5)
Care plans	317	(1)
Partnership	317	(1)
Human rights issues and the childcare process	318	(3)
Further Reading	319	(1)
Self-Test Questions	320	(1)
Protecting children from `significant harm': interpreting the law	321	(22)
Threshold finding of `significant harm'	321	(5)
Standard of care given by the reasonable parent	326	(2)
Present and future harm: a temporal question	328	(3)
Putting abuse to proof: Re H	331	(3)
Implications of Re H for child protection?	334	(2)
`No order' presumption	336	(1)
Evaluating child protection	337	(1)
Disposal: making a care or supervision order	338	(2)
Child protection and public authority liability	340	(3)
Further Reading	341	(1)
Self-Test Questions	342	(1)
Financial provision for children	343	(16)
UNCRC 1989	343	(1)
Child support obligation	344	(1)
Duty to maintain: Child Support Act 1991	345	(1)
Maintaining a child of the family	346	(2)
Whose child is it anyway?	348	(2)
Non-disclosure by the resident parent	350	(1)
Enforcement: reduced benefit directions	351	(1)
How much is a child worth: the maintenance formulae	352	(1)
The private arena of child support	353	(2)
Criticisms of the pre-1991 system of child maintenance	355	(1)
Evaluation of the Child Support Act 1991	356	(1)
Human rights and child support	357	(2)
Further Reading	358	(1)
Self-Test Questions	358	(1)
Index	359