Chapter 1

There are no questions for this chapter.

Chapter 2

On-the-spot question

Do you think the law should police the reasons people marry? If so, what would be an unacceptable reason for marrying? One major issue concerns those who marry for immigration purposes. In short, the law accepts they are married, but then does not accept the marriage as sufficient for immigration purposes if there it is not a genuine marriage. Is that an appropriate response?

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Answer

People get married for all kinds of reasons: religious, social, financial, to name but a few. Some people have strong views on who should marry whom and when. The difficulty for the law would be in deciding who had a good reason to marry or not. It would be highly controversial if the Government started to play the game of "love match". Unsurprisingly it is very reluctant to decide what marriages are suitable and what are not.

Chapter 3

On-the-spot question

If a couple have put a property in joint names should we not conclusively presume they intend the property to be jointly owned in equity as well as law? Are there dangers in reading too much into "who paid for what" in a relationship?

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Answer

The argument that a couple putting a property into joint names should be presumed to intend to share the property is that they will have been advised of the consequences of doing this when they bought the house by their lawyer. They argument against making this a conclusive presumption is that the subsequent events may make this understanding an unfair one.

Chapter 4

On-the-spot question

The argument that a couple putting a property into joint names should be presumed to intend to share the property is that they will have been advised of the consequences of doing this when they bought the house by their lawyer. They argument against making this a conclusive presumption is that the subsequent events may make this understanding an unfair one.

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Answer

It must be admitted it does seem rather odd that the law would require a couple whose relationship had broken down to remain together against their wishes. In practice it is hard to imagine this happening. The problem raised in the question is largely theoretical.

Chapter 5

On-the-spot question

Notice that married couples automatically fall within the favoured section 33, while cohabitants need to establish a property interest to do so. Should it really matter in cases of domestic violence whether the parties are married or not? In the debates before the legislation some MPs suggested treating married and unmarried couples in the same way undermined the status of marriage. Would you agree?

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Answer

It does seem very odd that if a person is the victim of domestic abuse the legal response might vary depending on their marital status. It seems particularly odd to claim that it would undermine marriage to treat married and unmarried couples the same way. The message to the unmarried victim of domestic abuse should not be that she should have got married to the abuser if she wanted protection! What seems more sensible is that the law should consider whether the relationship is a serious one or a more casual one. It is one thing to remove an abuser from his home if he has assaulted his long term partner, that would be harder to justify had he assaulted a woman he had met the night before. In such a case the full force of the criminal law should be used, but an occupation order might not be appropriate.

Chapter 6

On-the-spot question

Do you think it right that a rich spouse should have to share their assets on divorce? Are the courts paying too much attention to the idea of gender equality? Or are the courts rights to insist that a contribution to a marriage through child care is as valuable as a financial contribution?

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Answer

People tend to have strong views on this issue. My own view is that marriage and all close relationships involve a sharing of all kind of skill, assets and talents. The couple no longer use these for their own good, but are now using their skills for the good of a couple. It would be a very odd couple who both cooked their own separate meals and did not allow their partner to share in their food. Or took great care to only share a joke if the other did so. Rather couples share all they have with each other. That should be so with their assets as with the other things they bring to the marriage.

What is manifestly unfair is that at the end of the marriage, one leaves with far more gains from the marriage than the other. However, they can happen sometimes, especially in relation to money and especially where one spouse has given up their career to undertake child care. It is then most unfair if, say, a husband leaves a marriage with far more money than his wife, even though she has shared all her talents freely with her husband during the relationship.

Chapter 7

On-the-spot question

Should surrogacy contracts be enforceable? To some surrogacy contracts should be enforceable, like any other contract (although note that the normal remedy for breach of contract is that damages are paid, rather than that the other party must perform the contract). To others the surrogate mother has invested so much more of herself, through the pregnancy, to the child that she has a stronger claim to him or her, than the commissioning mother, who may only have paid money.

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Answer

Some people think that surrogacy contracts are undignified. However, people are willing to enter into all kinds of contracts for jobs and services which other people may feel squeamish about. Indeed simply because you find a surrogacy contract undignified may not be a good enough reason why you should impose that view on a surrogate mother who finds it a fulfilling job to do.

There is still the question of what to do if the surrogate mother refuses to hand over the child to the commissioning mother. As indicated in the questions for some people the key point is that this is a contract and normally the law enforces contracts. However, as this is a matter of family law there is a strong case for saying that the interests of the child should be most significant factor in deciding what should happen to him or her. The surrogate mother and baby will have formed a close bond through the pregnancy, birth and early days of care. Unless the mother poses a risk to the child I would be in favour of keeping the child with the surrogate mother.

Chapter 8

On-the-spot question

Can you think of any justification for why a child who has capacity to make the decision should have their view given legal weight if it is a consent but not a refusal?

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Answer

Can you think of any justification for why a child who has capacity to make the decision should have their view given legal weight if it is a consent but not a refusal?

Chapter 9

No content for this chapter.

Chapter 10

On-the-spot question

Do you think special guardianship is helpful? Some fear it is too insecure for adults wishing to offer long term care for the child. They can have the child removed from them based on a welfare assessment. That said it would be surprising if a child was removed from a happy situation with a special guardian unless there were real concerns.

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Answer

There are some cases where special guardianship is helpful. One might be where a grandparent is going to take on the role of full time carer of the child. The alternative of adoption would seem odd as the child's grandmother would then become her mother, causing confusion all round. Giving the grandmother special guardianship can give her parental responsibility and the formal status of being the primary carer of the child, without confusing the family dynamics too much!