Recent orders
Family Law and marriages
Family Law
Essay
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Family law
With the option of divorce becoming socially acceptable and the most preferred way of terminating marriages, the law of nullity has been attacked as lacking any practical value in modern family law. To some, the law should be abolished and its position taken up by the more advanced divorce laws. However, to others, as the Law Reform Commission observed in its review, the law of nullity still has significance to religious groups who differentiate between nullity and divorce and those who attach a moral value to the termination of a marriage. It is important therefore to recognise that there is a difference between a marriage that ends in annulment and one that ends in divorce. Annulment means that there was no marriage in the first place whereas divorce recognises that a valid marriage existed. The English law, Matrimonial Causes Act 1973, establishes the grounds on which a marriage can be declared null and void. The conditions for a valid marriage are laid down in the Marriage Act 1994.
The decree of nullity revolves around the concept of void and voidable marriages. Where void or voidable grounds exist, the marriage is considered to be invalid. However, these concepts have increasing lost significance in modern family law. Where marriage fails to work, divorce has become the most preferred way of terminating a marriage. In English Law, the court will grant a divorce where either of the partner justify that the marriage has irretrievably broken down. Since such avenues have become so common, there seems to be a growing campaign in legal circles that the concept of voidable marriages should be abolished and instead their position be taken up by divorce jurisdiction. However, although the concepts of void and voidable marriages may have less practical value as the basis of terminating marriages, they still offer the basis on which the boundaries of marriage partners can be determined and specify the conditions for establishing marriages.
In the law of nullity a marriage can either be void or voidable since its inception. These two concepts are derived from the Canon law of marriage. This is the law that governed most the law of marriage in England before formal statutes were enacted. The Canon law provided the ground on which a marriage could be established and whose parties could come together and be recognised as a husband and a wife. Any marriage that was formed out of the Canon Law restriction could be annulled by the ecclesiastical courts. The formal law intercepted to provide limits how the ecclesiastical courts could annul marriages after the death of either party by providing the distinction between a void and voidable marriage. The concept behind voidable marriages was that it was unreasonable to require either party to honour marital duties when a marriage did not exist in the first place. The main difference between a void and voidable marriage is that a void marriage was illegal from the word go but a voidable marriage can only be declared illegal after a decree of annulment is issued. More differences are provided by the Matrimonial Causes Act 1973.
In section 11 of the Matrimonial Causes Act 1973, the English Law lays down the ground on which a marriage can be declared void. Much of this is related to the provision of Marriage Act 1949 and the subsequent amendments. In these provisions, a marriage is void if it is not a valid marriage as provided by the Marriage Act 1949 as amended. In the case of Mick Jagger and Jerry Hall case for example, the court observed that their marriage was invalid from the beginning. It did not meet the conditions for marriage under the English Law. As per the act, a marriage is invalid if it is composed of parties who are within the prohibited degrees relationship, either the party is under the age of sixteen, or if the marriage does not fulfil certain requirements regarding the formation of marriage. In addition, the marriage shall be void if either of the parties was lawfully married by the time of the marriage and if the parties are not of the opposite sex. The law also prohibits marriage between close relatives.
Such other conditions that may constitute a void marriage are bigamy and same sex marriage. It is provided in the English Law that a person should not be married to more than one partner. Such an act would amount to an invalid marriage. The law also establishes that a proper marriage is constituted of person of different sex and that all marriages have to be mutually agreed. Even a surgical altercation on the sex of a partner as ruled in Corbett v Corbett can not alter the provisions of the marriage rules.
A question would arise as to what would happen if a marriage is annulled and out of the relationship there was a child. In a recent case, Hudson v Leigh, Judge Bodley addressed such a situation and ruled that where a marriage is annulled the carer of a child born out of such a relationship can apply for financial benefit as provided for in Schedule 1 of the Children Act 1989. In addition, the court can also issue a residence order or a contact order to take care for the interest of the child as it is in all marriage terminations.
The other kind of invalid marriage that can exist is the voidable marriages. The difference between void and voidable marriages is that the former is invalid from the beginning while the latter is valid until either partner seeks annulment. In void marriage, a decree of nullity is not necessary to invalidate a marriage. This is in contrast to voidable marriages where a decree of nullity must be granted. It is important to point out that a void marriage is from the beginning considered unacceptable in the eyes of the public. Voidable marriages are somehow different because their problems are not necessarily of the public concern but the problem between the partners themselves. Such marriages are essentially considered to be defective.
The grounds for voidable marriages are laid out in Section 12 of the Matrimonial Causes Act 1973. One of the ground on which a voidable marriage can be established is where either party has no capacity to consummate (have not had sex with the partner since they married) or has wilfully refused to do so. In the premise of the Canon Law, entering into a marriage indicated an ability to consummate it and if either party was unable to have sex, the marriage was void and thereafter voidable. The Canon Law held that the physical ability to consummate a relationship was a fundamental requirement for marriage and its inability thereof rendered the marriage voidable. In such a situation a degree of nullity had to be granted.
In modern family law theory, incapacity to consummate is a debated legal issue since the physical inability to perform is a treatable condition. In this case, a divorce jurisdiction will have to establish whether the condition is permanent or treatable. As Section 12 (a) of the Matrimonial Causes Act establishes, the condition has to be “incurable and permanent”. It is important to note that where the respondent has refused to go under the necessary treatment, the court will consider the condition to be incurable. Other incapacity to perform, as observed in the case of Singh v Singh may be due to the mere dislike of the other partner, but it is not in itself a necessary condition to annul the marriage.
The court also, as seen in the case of Kaur v Singh, has established that a decree of nullity can be granted where either partner wilfully refuses to consummate. Such conditions are also considered in divorce cases where wilful refusal to consummate can be used to prove that a marriage has irretrievably broken down. In such a case, a petitioner will successfully argue the case of a divorce on the ground that he or she can not be reasonably expected to live with a spouse who has willingly refused to consummate a marriage. On such ground, the importance of voidable marriage concept becomes less significant.
Duress, mistake, a party of unsound mind, fraud are the other grounds on which a voidable marriage can be established. Where it is proved that a party was coerced into a marital relationship, a decree of nullity can be granted. In Hirani v Hirani and Mahmood v Mahmood for example, the petitioners in the respective cases succeeded in proving to the court that the threat to ostracise them if they did not marry a partner of their respective parents’ choice amounted to duress. Similarly, the court granted a decree of nullity in Scott v Sebright where the respondent had tricked and threatened the petitioner into entering into a marriage. In granting decree of nullity in Lee v Lee, the judged painfully remarked that if there had not been a wedding, there definitely had to be a funeral.
Communicable venereal diseases, pregnancy by another person by the time of marriage and a mental disorder that can make a person unfit for marriage at the time of marriage are the other reason that can establish a ground for voidable marriages. In such a case a petitioner will have to prove that the material facts were concealed from him or her at the time of marriage. Such issues as communicable venereal diseases have however come into question as grounds for annulling a marriage since the breakthrough in modern medicine have made such diseases treatable.
Given the above grounds for void and voidable marriages, there seems to be reasonable grounds to retain the concepts in modern family law. In the first place, nullity satisfies some religious and personal reasons. As opposed to divorce proceedings, a decree of nullity does not impose residential conditions. Divorce proceedings impose requirements that the person seeking annulment must be a residence in the county for three months and six months within the state. In addition, the party applying for annulment does not have to wait for a year as it is in divorce dissolution. An annulment can be sought any time after a wedding. Cooling off period as provided in divorce dissolution provides a strong case for abolition of nullity for those who argue on the basis of protecting the family institution.
Given that a significant percentage of our society is still grounded on certain religious beliefs, retaining the void and voidable concepts has certain significant values. As per religious sense, marriage must be properly constituted, and if not, there is no basis of retaining them as valid. From the Canon Law a marriage that is not formed in sacramental sense is invalid. However, it must be understood that in the current nullity law, a decree of nullity does not render the children from such a marriage illegitimate. In English law, the annulment does not affect civil laws as regard to the child custody, visitation rights, alimony, or the division of property.
In the case of an annulment, just like in divorce, the parties can still as well apply for financial relief. Similarly, any gift to either partner will lapse after a decree of nullity is granted. However, it is important to point out that unlike in divorce, annulments occur after a short stint of marriage and thus there are no major property disputes, and in most cases a marriage might not have yielded a child. Sometimes the decree of nullity becomes the most favoured for those who want to escape the property and the ancillary financial relief granted in divorce dissolution.
However, it is correct to argue that with the current social acceptability of divorce, annulment is increasingly losing significance as an option of terminating marriages. This is evidenced with the low number (less than 1% of the applicants) that is opting to terminate their marriage through nullity. This proves that the law of nullity has less practical value. In addition, unlike in divorce dissolution a petition for an annulment must establish an element of fault. Again, the law of nullity is attacked on the ground that it makes it hard for a spouse seeking property and ancillary benefits since the petitioner must prove that he or she qualify as a putative spouse.
Nonetheless, the void and voidable concept still have practical values in that the law of nullity and the law of divorce deal with two separate issues. While the law of nullity is concerned with the situation before marriage, the law of divorce is concerned with the circumstances happening after the marriage thereby rendering the marriage unworkable. The concepts of void and voidable marriages may have less practical value as the basis of terminating marriages, but they still offer the basis on which the boundaries of marriage partners can be determined and specify the conditions for establishing marriages.
In summary, the low number of applicants applying for annulment raises questions whether the complex law on nullity is still important in modern family law. In 2008, for instance, it is only 200 decree of nullity was granted out of the total 331 application for annulment. Although the concept of void to this far remained important in drawing the boundaries of acceptable partners as far as close relatives are concerned, the low number of petitions heightened the debate on the need to abolish voidable marriage concept. Much of this debate cantered on the understanding that divorce proceeding could cater for the need of marriage termination. As cretney has pointed out, the modern family law can do away with the concept and leave the case for annulments to the religious bodies where the case for void marriages is still strong. In addition, the thin line between voidable marriages dissolved through divorce and those dissolved through nullity has provided a strong case for the abolition of the voidable concept. Many of the applicants today prefer divorce as opposed to the decree of nullity. Given these facts, it is only clear that the family law is headed to a major reform, where the law of nullity may be merged to the law of divorce or be abolished altogether.
Bibliography
BBC News “A Marriage by Name Alone”, [July 9, 1999] Web < HYPERLINK “http://news.bbc.co.uk/2/hi/uk_news/390493.stm” http://news.bbc.co.uk/2/hi/uk_news/390493.stm> [Accessed on Jan 3, 2013]
Cretney S “Principles of family law”, (London: Sweet & Maxwell, 2008)
Goda P “The Historical Evolution of the Concepts of Void and Voidable Marriages”, (1967) 7 J. Fam. L. 297- 310
Herring J “Family Law” (5th edition), (Harlow: Pearson Longman)
Law Reform Commission “Report on Nullity of Marriage” (Dublin: The Law Reform Commission, October 1984)
Lowe N & Douglas G “Bromley’s Family Law” (10th edition), (Oxford: Oxford University press, 2006)
Ministry of justice “Petitions for annulment” (London: Ministry of Justice, 2009)
Standley K “Family Law” (6th edition), (Basingstoke: Palgrave, 2008)
The law Society’s Law Reform Committee “Nullity of Marriage: The Case for Reform” (Dublin: Law Society of Ireland, 2001)
Tolstoy D “Void and Voidable Marriages”, (1964) 27 (4) The Modern Law Review 385-394
Statutes
Children Act 1989 (Schedule 1)
Civil Partnership Act 2004
Family Law Act 1995 or Family Law (Divorce) Act 1996
Marriage Act 1994
Matrimonial Causes Act 1973
Nullity of Marriage Act 1971
Cases
Corbett v Corbett [1971] P. 83
Hirani v Hirani [1982] 4 FLR 232
Hudson v Leigh [2009] EWHC 1306
Kaur v Singh [1972] 1 All ER 292
Lee v Lee [1928] 3 SW 2d 672
Mahmood v Mahmood [1993] SLT 589
Scott v Sebright [1886] 12 PD 210
Singh v Singh, [1971] 2 All ER 828
Family Intervention
Family Intervention
Upon an examination of the family dynamics, I found out that they had a dysfunctional family organization, which needed to be restructured. The technique to be used here would be a structural family therapy. I joined the family to help it alter its structure. Through altering their realignment and boundaries system, I would be able to change the experiences and behaviors of all the family members. My job would not be to solve their problems as this is their job; I would only assist in modifying their functioning so that they may solve their issues. This is because structural family therapy is synonymous with dynamic psychotherapy. The symptom resolution sought would not be an end in itself but it will be a permanent structural change (Donovan, 2002).
Symptoms
I decided to meet the entire family the following weekend in order to seek ways to use in in ending their squabbles. Upon speaking to the husband, he invited me to the home and I joined them with an intention of probing their flexible areas and activating dormant structural options. I first conveyed my respect for them and their way of handling things for this is critical in restructuring.
I then tried to understand their perception about their squabbles in order to approach the formulation through the kind of content as well as the sequence they would use to explain its origin. I then reframed the formulation through a comprehension of their family structure. I decided to deal with what I saw primarily occurring between the two in the session and not with what they described. I avoided getting bogged into the family’s non productive means of solving their issues by observing and modifying the sequences of their talking early in the therapy (Minuchin, 2010).
Assessment
In my initial contact with the family, I had to ease tensions and disarm their defenses through building an alliance with each member of the family. I greeted each individual in the family by name and ensured that I had made friendly contact. This is because a failure to join and put up with the family members could generate resistance that is usually blamed on the family. I focused on ensuring that I accommodated the husband who had a very negative perception of family therapy. I also ensured that this connection was made at frequent intervals especially when things began heating up (Donovan, 2002).
The assessment was based on various assumptions. My structural assessment was founded on the assumption that the couple’s problems were mirrored problems affecting the way they were organized. I thus assumed that if there was a shift in their organization then there will also be a shift in their problems. This is because difficulties in the family often mirror the manner in which the entire family is organized. Therefore, if things change between the daughters and the mother, things are likely to change between the couple. During the first meeting, one of their daughters became indecisive and made glances towards the father. The father then spoke up to clarify that she was having difficulties in explaining. I linked the indecisiveness of the daughter to the father’s assistance and realized there was a pattern of enmeshment (Minuchin, 2010).
Upon requesting the parents to discuss their daughter’s problem, they had difficulties talking without being reactive and this conversation did not last long. This was an indicator of disengagement between the couple, which was closely related to the enmeshment between them and their daughters through cause and effect. In the interaction, I realized that the couple does not talk for more than five minutes without constant interruptions. While the husband seemed peripheral, the wife seemed central. When the first session began and the kids started running in the room while their parents ineffectually protested, I realized that there was no need of a description of what really occurs in their home for this may have realized a lesser picture than what I saw. When the wife complained of loneliness and the husband complained of having a busy work scheduled, I realized that the moment the husband got a new job he divorced the wife and married the job. This symptom was in the real sense a precursor of dysfunctional patterns that in the end affected the entire family. A structural assessment would broaden the problem further than the individuals would in their family system thus moving the focus from past discrete events to current ongoing transactions (Donovan, 2002).
The family structure was revealed by who said what to whom and in what manner. For instance, the wife asserted that they had a communication problem where the husband does not talk to her nor expresses his feelings. However, when I asked the husband to respond to this by talking to her, the wife became critical and overbearing. The husband responded by increasingly becoming silent. I realized where the problem lay. The problem was not that he does not talk, nor was it that she nags him; rather, the problem was that the more she nagged him, the more he withdrew and the more he withdrew the more she nagged him (Minuchin, 2010).
Strategy and Solution
The wife was also very depressed, I realized that she was overburdened by her four daughters and received very little assistance from her husband. My strategy was to ensure that the boundary between the children and their mother was strengthened in order to assist the couple to move closer to each other. I first joined the oldest of the girls aged seventeen years and supported her in developing her skills as a potential assistance for her mother. As soon as I finished this, the girl managed to assume more responsibilities for her siblings in the home. Upon being freed from being preoccupied by their children, the couple had enough and quality time for each other (Donovan, 2002).
However, they still had little to say to each other. I then realized that their problem did not stem from a hidden conflict; rather, it depicted the marriage of two nonverbal individuals. After several sessions in which I tried to make them talk to each other, it dawned on me that while talking is fun for some people it is not for others. To support their bonding, I asked them to plan a trip out together as a couple. They chose to go for a boat ride in a lake closer to their home. Upon returning from this trip, they were glowing with happiness. They managed to have a quality and wonderful time together by separating from the kids. From then onwards, they planned to go out every week.
References
Donovan, J. (2002). Short-Term Couple Therapy. New York: Guilford Press.
Minuchin, S. (2010). Family healing:Tales of hope and renewal from family therapy. New York: Free Press.
Family Structure in the United States
Subject
Students Name
Institution of Affiliation
Date
Family Structure in the United States
The American family structure has changed significantly over the past few decades, as it has deteriorated as the days progresses. According to the data from the family change presentation, the marital status of men has changed over the years. A large number of men who have never married has continued to increase over time rising from 30% from the year 1990 to almost 35% in 2016. The percentage of married men, on the other hand, has continued to decrease from 70% in the year 1970 to 55 percent in the year 2016. Besides, the rate of divorced men has as well continued to increase over time from 3% in the year 1950 to around 10 percent in 2016 (U.S. Census Bureau). According to this data, it is evident therefore that the family structure that is composed of the father, mother and children has continued to break, with large numbers of men finding themselves single either by choice or divorce.
The same trend is evidenced in the marital status of women. The percentage of married women continues to decrease over time from 65% in 1960 to 50% in 2016. The number of women who have never married as well continues to rise from 20% 1950 to 30% in 2017, while the number of divorced women has also been on the rise from 3% in 1950 to more than 10 percent in 2017 (U.S. Census Bureau). It is, therefore, true to conclude that the family structure is deteriorating as there is a large number of divorced women and unmarried women in the society, making a different family construct from that in the 1950s.
A complete family should have both father and mother bring up their children together, but this has not been the trend over the past few years. In the past, the family structure was incomplete without the father and mother together but presently, that does not matter. The two parent household is in the decline. According to the data obtained from the Pew Research Center, a two-parent family has significantly decreased from 87 percent in 1960 to 69 percent in 2014. The number of single parents has increased from 4 percent in 1960 to 26 percent in 2014. A family that doesn’t have a father or mother is not complete especially if the status is as a result of circumstances other than the natural ones such as the death of a parent. Most of the single parent families are as a result of divorce while in others, women who have never married have children out of wedlock prompting them to be single parents.
Men are perceived by society as the providers to their families while women are left at home to perform their basic chores such as looking after the children. However, the construct has slowly diminished with the roles of both men and women being reversed. There is a rising number of stay at home dads and according to the data obtained from Pew Research Center indicate that the number of fathers living with children younger than 18 years who do not work outside their home has increased from 1.1 million in 1989 to 2 million in 2012. However, women in the labor force with children has generally increased for all ages with those with children under the age of three years increasing from 34 percent in 1975 to 61 percent in 2014, under 6 years from 39%-64% and under 18 years from 47%-70%. According to this, most women appear to the breadwinners and thus a large number of them go to seek employment. Men, on the other hand, stay at home with children, completely destroying society’s expectations for family gender roles.
The percentage of all births that were to unmarried women by race and Hispanic has continued to increase. Women were not expected to have children out of wedlock but the trend has been reverted over the decades. For the non-Hispanic blacks, the percentage of unmarried women giving births rose from 57.2 percent from the year 1980 to 71.5 percent in 2103, the non-Hispanic whites rose from 9.5%-29.3%, that of the Hispanics rose from 23.6%-53.2% while the total number of unmarried women with children rose from 5.3% in 1960 to 40.6% in 2013 (Child Trends Databank). The data completely indicate a change in the family structure. The public support for same-sex marriage in the United States has been on the rise and this is an indication that in a family a man doesn’t have to marry a woman as according to religion. The family structure has changed as those favoring marriages of the same sex has increased from 37% in 2007 to 62% in 2017 (Pew Research Center), while those in opposition decreased from 54% to 32%, an indication that the family structure in the United States has changed to worse than ever.
Works Cited
Source: “Child Trends/Databank Indicator/Families and Parenting.” Child Trends Databank, www.childtrends.org/indicators/?research-topic%5B%5D=families-and-parenting. Accessed 4 Nov. 2016.
Source: “5 Facts About Same Sex Marriage.” Pew Research Center, 26 June 2017. www.pewresearch.org/fact-tank/2017/06/26/same-sex-marriage/. Accessed 4 Aug. 2018.
Source: Growing Number of Dads Home with the Kids. Pew Research Center, 5 June 2014. www.pewsocialtrends.org/2014/06/05/growing-number-of-dads-home-with-the-kids/. Accessed 4 Aug. 2018.
Source: Parenting in America: Outlook, Worries, Aspirations Are Strongly Linked to Financial Situation. Pew Research Center, 17 Dec. 2015. www.pewsocialtrends.org/2015/12/17/1-the-american-family-today/. Accessed 4 Nov. 2016.
Source: U.S. Census Bureau, Decennial Censuses, 1950 to 1990, and Current Population Survey, Annual Social and Economic Supplements, 1993 to 2017. www.census.gov. Accessed 20 Feb. 2018.