Chapter 2

Q.  Can Same Sex Couples Marry?

A.  Yes they can since Marriage (Same Sex Couples) Act 2013.  However, there are restrictions on where they can marry.  Most churches do not permit same sex marriage.

Q.  What is the difference between a void and a voidable marriage?

A.  A voidable marriage is valid until the court grants a decree of nullity.  A void marriage never exists.

Q.  Is marriage a status or a contract?

A.  There is no simple answer to this.  It has features of both a status and a contract.  To some extent the parties can decide for themselves the legal consequences of a marriage through a pre-marriage contract.  However, some of the consequences of the marriage cannot be varied by agreement.

Chapter 3

Q.  Is it true if a couple have lived together for two years they have  a “common law marriage”?

A.  No.  That is a common preconception.  Unless you go through a ceremony of marriage you cannot become married by living together.

Q.  If a constructive trust is found how will the court determine what share of ownership the parties have?

A.  The court will seek to ascertain what share the parties intended to have.  If the property is in their joint names there is a strong presumption they intended to share ownership.

Q.  Would you recommend a couple marry?

A.  Well I can only answer that from a legal point of view!  It is certainly sensible for a party who is intending to give up time from work to care for children or other dependents.  If they are unmarried they will not be able to obtain financial support for themselves if they do this.

Chapter 4

Q.  Is it true we now have divorce on demand?

A.  As a matter of the official law, no.  You need to prove on of five facts to demonstrate to the court that the marriage has broken down irretrievably.  However, this is normally done on the paperwork and only a limited effort is made to ensure the facts in the petition are true.

Q.  Is there any difference between divorce and dissolution of a civil partnership.

A.  Yes the adultery fact cannot be relied upon in a case of a civil partnership.  However, sexual unfaithfulness would fall under the behaviour fact and so the difference is not significant in practice. 

Chapter 5

Q.   What is molestation?

A.  The courts have avoided giving a formal definition of molestation.  It covers behaviour which is harassing and interferes with the health, safety or comfort of the victim.

Q.  Why can only associated people obtain non-molestation orders?

A.  If the parties are not in a close relationship there are other remedies available to them in the law, such as orders under the Protection from Harassment Act 1997.

Chapter 6

Q.  Why did the courts promote equal sharing?

A.  This is based on the principle that as the parties are in a partnership and have pooled their resources into the relationship, they should share its fruits.

Q.  Why is conduct not more relevant in cases of financial disputes?

A.  Basically because the courts would get side-tracked into having resolve “who did what to whom?” disputes if they placed much weight on conduct.  They prefer to focus on the needs of the parties in the future, than the past.

Chapter 7

Q.  Why should parental responsibility not be given to all parents?

A.  Well, some people think it should.  The argument it should not is that there are some parents who have played no role in a child’s life and are “as a stranger” to the child.  It would not be appropriate to give them legal decision making powers over the child if they do not know the child at all.

Q.  Is it fair that unmarried fathers do not get parental responsibility?

A.  Many people think that is unfair.  Of course, you can be a wonderful father, even though you are not married to the mother.  It might be noted, however, that many unmarried fathers will have parental responsibility by being named on the birth certificate.  If they have not married the mother and do not want to be named on the birth certificate it seems the court questions their commitment to the child.

Chapter 8

Q.  What does it mean that the child’s welfare is the court’s paramount consideration in Children Act 1989, s. 1?

A.  It means that in resolving disputes over a child, the court should only consider what is best for the child.  They should not take into account what is more convenient for the parent or other adults.

Q.  Will the Children and Families Act 2014 make much difference?

A.  Probably not.  It is true the terminology will change and we will talk of “child arrangements orders” rather than contact or residence.  It is hoped this might make disputes less stressful, but I am not sure it will.

Chapter 9

Q.  What does significant mean in section 31 of the Children Act 1989?

A.  The courts have been reluctant to explain the meaning of “significant”.  The best that might be said is that it means that the child has suffered a sufficient amount of harm to justify the courts making a care order.

Q.  What is the difference between a care order and a supervision order?

A.  A key difference is that a child may be removed from the parents under a care order, but not a supervision order.

Chapter 10

Q.  What are the courts so reluctant to revoke an adoption order?

A.  They do not want adopted parents feel too precarious.  If an adoption order could be easily revoked an adoptive parent would be in dread of the adoption being ended at any moment.

Q.  When is special guardianship useful?

A.  It is best in cases where a non-parent is going to take on the job of being a parent, but it would not be suitable for them to have the label parent (e.g. where an older sister was going take on care of a much younger sister).