What is a Family?

What is a Family?

1. Family Law concerns relations between;

   • The individual and the State
     • Child Protection
     • Taxation
     • Welfare
   • Individuals
     • Parent and Child
     • Brother and Sister
     • Husband and Wife
     • Cohabitants

2. Aims of Family Law?

   • Disputed
   • To promote morality?
   • Stability?
   • Equality?
   • Self-Determination or Fulfilment?
   • Recognisation and Structure?
   • Intervention or Respect Privacy?

3. Case Law

   • Telfer & X & Y v Kellock
     • Ms. Telfer died in car crash
       • Caused by Kellock
       • Family may sue in Solatium
     • Ms. Telfer had been in a long term relationship with female partner (X)
       • Ms. Telfer had daughter from previous marriage
         • Partner also had son from previous marriage (Y)
           • Who is allowed to sue in Solatium?
             • Ms. Telfer's Partner? No
             • X's son (Y)? Yes
     • Damages (Scotland) Act: Relatives
       • "relative" includes spouse and child
         • and (c) any person ... who was accepted by the deceased as a child of the family
         • and (a) any person ... who was ... living with the deceased as husband & wife
       • X was not Ms. Telfer's relative but X's son was for the purposes of the Act
     • "A clear picture of a loving, caring household of two adults and two children emerges" - Lady Smith
       • Humanist "marriage"
       • Joint tenancy
       • Joint bank account
       • Nominated next of kin
       • Shared childcare duties
       • Children considered each other brother and sister
   • Fitzpatrick v Stirling Housing Association
     • Two men lived together
       • As "husband and wife?"
         • No - must be a man and a woman
         • As a "family"
           • Yes - degree of mutual interdependence, sharing of lives, caring and love, commitment and support
       • same-sex partners
     • Inheritable tenancies
     • Interpretation of "family" or "husband and wife"
     • PRE-HRA 1998 APRROVAL
   • Ghadian v Godin-Mendoza
     • POST-HRA 1998 APPROVAL
     • Two men lived together
       • same-sex partners
       • As "husband and wife"?
         • Yes - ruling possible due to introduction of HRA 1998, such protections were available to unmarried couples, no reason to exclude same-sex couples
           • "Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can" - Baroness Hale
         • As a "family"?
           • Yes
   • Burden & Burden v UK
     • Two sisters lived as a stable cohabiting couple
       • Ghadian recognised same-sex couples as being recognised as "husband and wife so why could they not?
         • Relationship not "marriage-like"
           • No discrimination
     • Argued violation of Art.1 and Art.14 ECHR