UNIT 11 FAMILY LAW

Date: 2015-10-07; view: 691.

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In some societies the family is thought to be so important that there is very little legal intervention in family life. But in many parts of the world, the law now promotes the rights of individuals within the family unit, and regu­lates family relations through legislation.

Family law- sometimes called the law of domestic relations - deals with all aspects of legal rights and obligations within the family unit. It covers a vast field: marriages, annulments, divorces, separations premarital agreements, child support and custody, property division and alimony, visitation rights, child discipline, establishing paternity, living together, and more.

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The law in most countries places more emphasis upon marriages legally registered than social relation whereby people live together. However, in most industrialized countries, the legal differences between the married and the unmarried are decreasing.

All countries have limitations on how old a person must be before get-ling married. Under the US family law, both the man and the woman must be at least 18 years old to marry without parental consent. And there is no upper age limitation on marriages. Persons over 100 years old may enter into legally binding or valid marriages.

You can't marry just anybody. First of all, your spouse - to be must be a member of the opposite sex and you can't marry certain close relatives (mar­riages between a parent and a child, grandparent and grandchild, brother and sister, uncle and niece, and aunt and nephew are prohibited).

And finally, you can have only one spouse at a time. If you remarry be­fore divorcing your current spouse, you are guilty of bigamy.The second marriage is voidfrom the very beginning.

Before a person can marry, he or she usually must comply with certain pro­cedure such as an application to marry, medical examination or a blood test show­ing that the person is free from venereal disease, a wait period and so on.

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In Anglo-American law, some marriages may be readily dissolved, or nullified, or annulled.In other cases, a couple may seek a divorce.

An annulmentis a legal declaration that a marriage never existed, that it was null and void from the beginning, that something from the start prevented the marriage from being valid.The major grounds for annul­ment are: an underage party,an incestuous marriage,and bigamy.The difference between a divorce and an annulment is this: in a divorce, a valid marriage is legally ended, while an annulment means that "marriage" never existed.

The divorce procedure may be lengthy, especially if one spouse doesn't want to get divorce, or if there are children. It is necessary for one of the par­ties to convince the court that the marriage has broken down irretrievably - without any chance of reconciliation. To do this the person seeking divorce must prove one of five things:

1. that the respondent committed adultery (had sex with someone else);

2. that the respondent's behavior has been unreasonable;

3. that the respondent deserted the petitioner at least two years previously;

4. that the couple has lived apart for two years and both agree to a divorce;

5. that they have lived apart for five years.

But in no case will the law allow divorce proceedings to start within a year of the marriage, since it is thought this is too soon for the marriage to have tested itself. It is also feared that people would get married without seri­ous thought if it were quick and easy to get a divorce.

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Even if the court is satisfied that there is enough evidence, a divorce will not be issued until satisfactory arrangements have been made for any children of the marriage, including determining who is to have custody of the children, the rights to maintain contact with the other parent, and financial provision for the children's welfare.

Child custodyis an issue only if there is a disagreement between the parents on who gets custody. Custody of the children used to be routinely awarded to the mother unless the father could prove serious charges of im­morality, child abuse, or neglect against the mother. Today the judge focuses on the welfare of the child. A stable home environment is at the top of the judge's list in deciding what is in the child's best interests.

Sometimes neither parent is fit to take care of the child. In such case, the judge may award custody to grandparents or other relatives who are will­ing to provide the child with a loving home. If no suitable relative can be found to take care of the child, the child is placed in a public institution or a foster home.

Visitation rightsare awarded to the parent who doesn't get custody of the children. To punish a parent for refusing to allow the other parent to visit the children, the court might suspend child support payments until visitation is permitted. And if the parent with custody continues to refuse the other par­ent his or her visitation rights, the court could give custody of the children to the other parent (unless there is a good reason to refuse the ex-spouse his or her visitation rights).

Child supportis the amount of monthly payment made by the parent not having custody of the children. Two factors determine the amount of child support: the needs of the children and the parent's ability to pay. The needs of the children are defined as the necessities of life - food, clothing, and shelter. The amount of child support, whether agreed to by the parties or ordered by the judge, can be modified as the children's needs or parent's ability to pay charge. The obligation to support a child ends only when the child reaches the age of majority or becomes emancipated (gets married or moves out on his or her own and becomes self-supporting).

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In dividing marital assets the courts have to find a balance between two principles. One is that any division should fairly reflect how much each party contributed to the property they held together. Work done in the home, time spent caring for the family, even emotional support are all considered as giv­ing some rights to property. The other principle which courts must consider is the needs of the parties.

In the United States, under the "equitable distribution" rule the court looks at the assets of the couple, the length of the marriage, and the contribu­tions each party made during the marriage, and then divides the property in a fair manner. Generally, community property(i.e. everything earned or ac­quired by a couple during marriage) is split into equal parts. Everything a per­son owned before getting married is his or her own separate property.Gifts as well as inheritances received during the marriage are also one's own sepa­rate property.

The judge can divide only the community property; separate property remains the property of the spouse who owns it. In dividing the community property and awarding alimony, the court can, however, consider the amount of separate property.

Alimonyor spousal support -is money that one spouse pays to the other to help support him or her after the divorce. At one time in the US it was the husband who was bound to pay alimony. Today, however, men sometimes collect alimony payments, though this is still relatively seldom. There is no set formula for determining how much alimony, if any, must be paid in a par­ticular case. Some of the factors the judge considers are how long the parties were married, how much each earns, the number of children and their ages, the health of the parties, and how self-supporting each party is.

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An important event for a family, usually requiring consultation with a lawyer, is the death of a relative. The property of a dead person is mostly dealt with in Anglo-American law under the law of probate.This is distinct from family law and of course it is not only relatives who may receive (in­herit) the property of a dead person.

Many people make a willbefore their death containing their instruc­tions regarding what is to happen to their property when they die. In English law, the maker of a will is called a testator. The will need not be drawn up by a lawyer, but it must be in writing and there must be two witnesses who sign the will.

In most countries, there are laws of succession which clearly lay down who is entitled to the property of an intestaterelative and in what order. Un­der Anglo-American law a surviving spouse is at the top of this order, fol­lowed by children, parents, brothers and sisters, grandparents and uncles, aunts and cousins. If there are no relatives at all the property passes to the State.

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