Week 1 – Family Law
Assessment:
Coursework 1 = 60% = 1750 = 3rd March 2022 6pm
Coursework 2 = 40% = 1250 = 7th April 2022 6pm
Tutors:
Maureen O’Hara =
Kelly Cartlidge =
Lecture:
Concepts of the ‘Family’ within Domestic Law:
There is no statutory or common law definition of ‘family’.
Fitzpatrick v Sterling Housing Association (2001) 1 AC 27
Lord Nicholls of Birkenhead:
“This expression is not a term of art: that is, it is not a technical term with a specific meaning…to this day family has
remained unamended, undefined and unparticularised…the expression ‘family’ does not have a single, readily
recognisable meaning…the meaning…depends upon the context in which it is being used.’’
Judicial Approaches to Defining ‘Family’:
Different aspects of family status may be defined in
terms of:
Consanguinity (blood relationships) – e.g. between parents & their biological children
Formal legal ties – marriage, civil partnership, adoption
Function – people whose relationships involve neither blood ties nor formal legal ties may be defined as a de facto
family in some contexts because of their close ties to each other
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27
- This was a housing case in which Mr Fitzpatrick sought succeed to his late same-sex partner’s tenancy.
- The Court unanimously rejected Mr. Fitzpatrick's claim that he had lived with the original tenant as ‘his or her
wife or husband’, on the basis that Parliament had not intended the measure to extend to same sex partners.
- By a majority of 3 to 2, the Court accepted Mr Fitzpatrick's claim to have been a member of the original
tenant’s family, on the basis that the word ‘family’ had not been given a statutory meaning, & this was a de
facto relationship in which the key elements of family life were present.
Fitzpatrick – majority functionalist approach
Lord Slynn of Hadley:
“The hallmarks of the relationship were essentially that there should be a degree of mutual interdependence, of the
sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed,
though evidently are not always present…In de facto relationships these are capable, if proved, of creating
membership of the tenant’s family…In considering this question it is necessary to have regard to changes in attitude…
I hold that as a matter of law a same sex partner of a deceased tenant can establish the necessary link…it is not the
meaning which has changed but that those who are capable of falling within the words have changed.’’
, Fitzpatrick – minority formalistic approach
Lord Hutton:
“…I consider that Mr Fitzpatrick does not qualify as a member of Mr Thompson’s family because he had no
relationship with Mr Thompson by marriage or blood or adoption and no link with him which was broadly
recognisable as creating de facto such a relationship… For there to be a de facto family relationship there must be the
outward appearance of a de jure family relationship to which it is equivalent…Some may argue that, in view of
changing social attitudes to homosexual relationships, the time has come as a matter of policy to equate such
relationships with heterosexual ones. But such matters are for Parliament, not the Courts.’’
Karner v Austria [2003] 2 FLR 623
- Article 8 was engaged, and there had been a difference of treatment based on sexual orientation.
- Such difference in treatment requires particularly serious reasons for justification
- The aim of protecting the family in the traditional sense is a weighty and legitimate reason which might
provide such justification, but the principle of proportionality must be respected.
- This aim is narrow, and the margin of appreciation is also narrow.
- Achieving this aim did not require the rejection of this type of application
Ghaidan v Godin-Mendoza [2004] 2 AC 557
- The influence of Karner on the domestic courts can be seen in this case
- By a majority of 4 to 1, House of Lords found that section 3 HRA 1998 required them to read the relevant
section of the Rent Act 1977 as though the surviving same-sex cohabitant of the original tenant was the
equivalent of a surviving spouse
The limits of the functionalist approach
Joram Developments v Sharratt [1979] 1 WLR 928, HL
Lord Diplock cited Russell LJ in Ross v Collins (1964):
“…two strangers cannot… ever establish artificially for the purposes of this section a familial nexus by acting
as brothers or as sisters, even if they call each other such…Nor, in my view, can an adult man and woman
who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or
father and daughter would act…Nor, in my view, would they indeed be recognised as familial links by the
ordinary man.’’
Assessment:
Coursework 1 = 60% = 1750 = 3rd March 2022 6pm
Coursework 2 = 40% = 1250 = 7th April 2022 6pm
Tutors:
Maureen O’Hara =
Kelly Cartlidge =
Lecture:
Concepts of the ‘Family’ within Domestic Law:
There is no statutory or common law definition of ‘family’.
Fitzpatrick v Sterling Housing Association (2001) 1 AC 27
Lord Nicholls of Birkenhead:
“This expression is not a term of art: that is, it is not a technical term with a specific meaning…to this day family has
remained unamended, undefined and unparticularised…the expression ‘family’ does not have a single, readily
recognisable meaning…the meaning…depends upon the context in which it is being used.’’
Judicial Approaches to Defining ‘Family’:
Different aspects of family status may be defined in
terms of:
Consanguinity (blood relationships) – e.g. between parents & their biological children
Formal legal ties – marriage, civil partnership, adoption
Function – people whose relationships involve neither blood ties nor formal legal ties may be defined as a de facto
family in some contexts because of their close ties to each other
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27
- This was a housing case in which Mr Fitzpatrick sought succeed to his late same-sex partner’s tenancy.
- The Court unanimously rejected Mr. Fitzpatrick's claim that he had lived with the original tenant as ‘his or her
wife or husband’, on the basis that Parliament had not intended the measure to extend to same sex partners.
- By a majority of 3 to 2, the Court accepted Mr Fitzpatrick's claim to have been a member of the original
tenant’s family, on the basis that the word ‘family’ had not been given a statutory meaning, & this was a de
facto relationship in which the key elements of family life were present.
Fitzpatrick – majority functionalist approach
Lord Slynn of Hadley:
“The hallmarks of the relationship were essentially that there should be a degree of mutual interdependence, of the
sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed,
though evidently are not always present…In de facto relationships these are capable, if proved, of creating
membership of the tenant’s family…In considering this question it is necessary to have regard to changes in attitude…
I hold that as a matter of law a same sex partner of a deceased tenant can establish the necessary link…it is not the
meaning which has changed but that those who are capable of falling within the words have changed.’’
, Fitzpatrick – minority formalistic approach
Lord Hutton:
“…I consider that Mr Fitzpatrick does not qualify as a member of Mr Thompson’s family because he had no
relationship with Mr Thompson by marriage or blood or adoption and no link with him which was broadly
recognisable as creating de facto such a relationship… For there to be a de facto family relationship there must be the
outward appearance of a de jure family relationship to which it is equivalent…Some may argue that, in view of
changing social attitudes to homosexual relationships, the time has come as a matter of policy to equate such
relationships with heterosexual ones. But such matters are for Parliament, not the Courts.’’
Karner v Austria [2003] 2 FLR 623
- Article 8 was engaged, and there had been a difference of treatment based on sexual orientation.
- Such difference in treatment requires particularly serious reasons for justification
- The aim of protecting the family in the traditional sense is a weighty and legitimate reason which might
provide such justification, but the principle of proportionality must be respected.
- This aim is narrow, and the margin of appreciation is also narrow.
- Achieving this aim did not require the rejection of this type of application
Ghaidan v Godin-Mendoza [2004] 2 AC 557
- The influence of Karner on the domestic courts can be seen in this case
- By a majority of 4 to 1, House of Lords found that section 3 HRA 1998 required them to read the relevant
section of the Rent Act 1977 as though the surviving same-sex cohabitant of the original tenant was the
equivalent of a surviving spouse
The limits of the functionalist approach
Joram Developments v Sharratt [1979] 1 WLR 928, HL
Lord Diplock cited Russell LJ in Ross v Collins (1964):
“…two strangers cannot… ever establish artificially for the purposes of this section a familial nexus by acting
as brothers or as sisters, even if they call each other such…Nor, in my view, can an adult man and woman
who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or
father and daughter would act…Nor, in my view, would they indeed be recognised as familial links by the
ordinary man.’’
