FAMILY LAW FAMILY LAW An account of the Law of Domestic Relations in England and Wales in the last quarter of the twentieth century, with some comparisons Olive M. Stone LL.B.• B.Sc.(Ecol/.) Ph.D.• ofGray's Inn. Barrister Reader in Law to the UI/iversity of LOl/don at the London School of Economics al/d Political Science M © Olive M. Stone 1977 Softcover reprint ofthe hardcover 1st edition 1977 978-0-333-19629-8 All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, without permission. First published 1977 by THE MACMILLAN PRESS L TD London and Basingstoke Associated companies in New York Dublin Melbourne Johannesburg and Madras ISBN 978-0-333-19630-4 ISBN 978-1-349-86147-7 (eBook) DOI 10.1007/978-1-349-86147-7 This book is sold subject to the standard conditions of the Net Book Agreement. The paperback edition of this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. Contents page Preface XI Table of Statutes XIII Table of Statutory Instruments XXI Table of Cases . XXIII CHAPTER I Introduction 1 A. Marriage, Family and Household 1 B. Marriage and Family Today 9 Part I Legal Family Relationships 21 CHAPTER II Before the Ceremony: The Marriage Ceremony: Void and Voidable Marriages and their Effects 23 A. Before the Wedding Ceremony 23 (i) Damages for Breach of Promise of Marriage 23 (ii) The Presumption of Undue Influence 25 B. The Marriage Ceremony (or Wedding) 26 (i) Present Background 26 (ii) Historical Evolution of the Law 27 (iii) Preliminaries to Marriage (a) Civil Preliminaries . 32 (b) Ecclesiastical Preliminaries 34 (iv) Solemnisation of Marriage 36 C. Void and Voidable Marriages 38 (i) Void Marriages . 39 (ii) Voidable Marriages 42 (a) Incapacity to Consummate 42 (b) Wilful Refusal to Consummate 43 vi Contents page (c) Lack of Valid Consent 44 (d) Mental Disorder 47 (e) Communicable Venereal Disease 47 (j) Pregnancy per alium 47 D. Bars to Avoidance of Voidable Marriages 48 E. Private International Law 48 (i) Jurisdiction of the English Courts 48 (ii) Choice of Law (a) Form . 49 (b) Capacity to Marry (or essential validity) 52 (iii) The Recognition of Polygamous Marr:ages in English Law. 52 CHAPTER III Personal Legal Relations in the Functioning Family 54 A. Surname . 56 (i) Married Woman. 56 (ii) Minor Child 58 B. Nationality, Citizenship and Patriality 59 (i) Husband and Wife 62 (ii) Parent and Child. 64 C. Domicile . 64 D. Actions in Tort Between Husband and Wife 65 E. Criminal Injuries Compensation . 65 F. Per quod consortium (servitium) amisit 65 G. Evidence Between Husband and Wife 66 H. Contraception . 67 J. Abortion . 68 K. Damages for Injury to Unborn Children 69 L. Marital Consortium 70 M. Parental Custody of Minors. 71 The Reduction and Termination of Parental Authority 73 CHAPTER IV Legal Property and Financial Relations in the Functioning Family 75 A. Areas of Unity . 75 (i) Maintenance 76 (ii) Taxation 79 (iii) Social Security 83 B. Separation of Property - The General Rule and its Mitigation 87 (i) Transfers of Property Between Spouses to Defeat Creditors' Claims 88 (ii) Savings from Housekeeping Allowance . 90 (iii) Wife's Agency for her Husband 91 (iv) Other Attempts to Mitigate Separate Property 92 Contents Vll page (v) The Matrimonial Home 93 (vi) Property of Minor Children 97 Part II The Disjointed Family 103 CHAPTER V Services, Institutions, Courts and their Jurisdictions 105 A. Marital Counselling: Conciliation and Reconciliation Procedures 105 B. Marriage Contracts 109 C. Government Conciliation Services. 109 D. Matrimonial Complaints before Magistrates 110 E. Matrimonial Causes . 116 Divorcefact situations (i) Adultery and Cohabitation Intolerable 122 (ii) Unreasonable Behaviour 124 (iii) Two years' Desertion . 126 (iv) Two years' Separation and Respondent's Consent to a Divorce Decree . 127 (v) Five years' Separation . 128 (a) Grave Financial Hardship 129 (b) Grave Other Hardship 130 F. The Role of Divorce . 131 G. No Divorce Within Three Years of Wedding 132 H. Procedure in Divorce Courts 133 J. Jurisdiction in Matrimonial Causes, Custody of Children and Ancillary Proceedings (i) In Domestic Law. 137 (ii) In Private International Law . 139 (iii) Conflicts of Jurisdiction 140 K. Privacy versus Publicity in Family Proceedings 143 CHAPTER VI Dissolution of Marriage by Death. 147 A. The Law of Intestate Succession . 148 B. No Benefit from Criminal Homicide 151 C. Succession to Statutory Tenancies 152 D. The Fatal Accidents Act .. 153 E. Decree of Presumption of Death and Dissolution of Marriage 157 F. Family Provision . 157 The Inheritance (Provisionfor Family and Dependants) Act 1975 161 (i) Those Entitled to Apply 162 (ii) Orders the Court May Make. 162 (iii) Property Available for Financial Provision . 164 (iv) Links Between Family Provision and Financial Provision in Matrimonial Causes 167 (v) Time for Application 168 (vi) Jurisdiction. 169 Vl\1 Contents page CHAPTER VII The Effects of Separation or Divorce Between Spouses 170 A. Orders in Respect of Title to Property Between Spouses or Former Spouses. 171 (i) Wachtelv. Wachte/[19731 Fam. 72C.A. 173 (ii) Property Claims and Discretionary Allocations 177 (iii) Property Adjustment Between Cohabitees Not Married to Each Other 181 B. Variation of Settlements 182 C. Other financial provision under the Matrimonial Causes Act 183 (i) Maintenance Pending Suit 183 (ii) Financial Provision by Periodical Payments or Lump Sums 183 (a) Lump Sum Payments 185 (b) Consent Orders 186 (c) Financial Provision where Supplementary Benefits are paid to one or both parties 186 D. Maintenance under the Matrimonial Proceedings (Magistrates' Courts) Act 1960 187 E. Possession of Real Property. 188 F. Enforcement of Property and Financial Provision Orders 192 G. International Enforcement of Property and Maintenance Orders 194 CHAPTER VIII Orders for the Care and Control of Children of Separated Parents 197 A. One-parent Families . 197 B. Jurisdictions Over Children. 198 C. General Principles Often Applicable 208 D. Evidence Receivable in Custody Cases 209 E. The Individual Jurisdictions (i) The Inherent Wardship Jurisdiction of the High Court 209 (ii) Habeas Corpus Proceedings . 211 (iii) Jurisdiction under the Guardianship of Minors Act 1971 and the Guardianship Act 1973 211 (iv) Jurisdiction of the Magistrates' Courts under the Matrimonial Proceedings (Magistrates' Courts) Act 1960 and of the Divorce Courts under the Matrimonial Causes Act 1973 213 (a) Divorce Jurisdiction Contrasted with that on Separation or for Maintenance 214 (b) Children of the Family 215 (vi) Children of Parents not Married to Each Other 217 (a) Legitimation and Deemed Legitimacy 217 (b) Illegitimacy . 219 (vii) Parental Rights over the Ex-nuptial Child 223 Contents ix page CHAPTER IX Adoption. 225 A. Historical Outlines of Adoption in England 225 B. The Balance Between Parental Rights and the Child's Welfare and Changes Effected by the Children Act 1975 230 (i) Freeing the Child for Adoption 231 (ii) Court Attendance of Physical Parent not Usually Required 232 (iii) Only Adoption Agencies may Place Children for Adoption 233 (iv) Re-vesting of Parental Rights 234 (v) Dispensing with Parental Agreement to Adoption 234 (vi) Removing a Child from the Home of Prospective Adopters 235 C. Those who May Adopt 236 D. Orders for Less Than Full Adoption 237 E. Adoption Orders in Private International Law. 238 F. The Effects of an Adoption Order. 239 G. Integration of Adoption with Child Welfare Provisions 241 CHAPTER X Failure oj Parental Duties and Public Responsibility- Children in the Care oj Public Authorities 243 A. Outlines of the Development of Public Care for Children since the Nineteenth Century 246 B. Children in Care - The Children Acts 1948-75 247 C. The Children and Young Persons Acts 1933-69, as amended 256 Bibliography 263 Index 273 Preface This book is based on the lectures on the Law of Domestic Relations for students for the Bachelor of Laws degree that I have delivered for some years at the London School of Economics and Political Science. Much of it was written during special leave in the law libraries of Monash University, Australia and the University of Singapore, and my thanks are due to the staff of these and other law libraries for their ever-ready help and co-operation. I thank also those, especially Mss Jacquie Fleming and Mary Choo, who produced a fair typescript. In the later stages my colleague Mr David Bradley was good enough to read the entire script and make valuable suggestions for improvement. Any views expressed are, of course, entirely my own. Although this book is intended primarily for law students both in England and Wales and overseas, I hope that others will find it a useful statement of the principal problems and areas of interest in family law today. The law is given as at 20 August 1976, but some decisions reported to 22 October have been briefly noted. 22 October 1976 Olive M. Stone Table of Statutes (1) UNITED KINGDOM STATUTES page page Abortion Act 1967, c. 87 15,68 Adoption of Children (Regulation) Administration of Estates Act 1925 Act 1939 (2 & 3 Geo. 6) (15 & 16 Geo. 5) c. 23 c. 27 226 s.36 97 Affiliation Proceedings Act 1957 (5 & s.41 98 6 Eliz. 2) c. 55 201,203, s.42 97 220,221,222,223 s.45 6,159 Affiliation Proceedings (Amendment) s.46 7, 148, 149 Act 1972,c.49 144,220,222 s.47 7,98 Age of Marriage Act 1929 (19 & 20 s.47A 149 Geo.