Family law

From being a matter of indissoluble status marriage, by the nineteenth

century, characteristically came to be trated as a contract. Today, equally
characteristically though a fair portion of it is to be found in the Matrimonial
Causes Act 1973, it has become enmeshed in copious and incoherent legislation.
One of the most bewildering aspects of the matter is that matrimonial law is
administered by the High Court, county courts and magistrates courts. It has been
argued that the best thing that could be done- for simplifying the law itself- would
be the entrust the matrimonial jurisdiction to a simple set of tribunals, on the model
of the industrial tribunals.
Engagements to marry
Traditionally the common law looked upon an engagement, as upon
marriage, as a contract, and it had the legal effect that a man who broke his
engagement cold be sued by his ex-financee for breach of promise of marriage-a
type of action which was, not unnaturally, discouraged and for which there were
special evidentiary requirements. This form of action was, however, abolished by
the Law Reform Act 1970 which enacted that An agreement between two persons
to marry one another shall not under the law of England and Wales have effect as a
contract giving rise to legal rights This provision, however, could not stand
alone because broken engagements sometimes leave not only injured feeling but
also, like broken marriages, tangled property relationships: hence by s 2, the Act
applied the same rulesof law as apply to property in which a husband or wife has
an interest, It enables an action to be brought under s 17 of the Married Womens
Property Act 1882, provided that the action is brought within three months of the
broken engagement. Thus, for example, where there have been contributions by the
engaged couple towards the proposed matrimonial home the parties interests may
be safeguarded after the engagement has been broken off. Moreover, s 3 of the
1970 Law Reform Act settled disputes about the engagement ring by ruling that it
shall be presumed to be an absolute gift; though this presumption may be rebutted
by evidence showing a contrary intent.

Formation of marriage
The formalities for the celebration of a valid marriage are in general
prescribed by the Marriage Act 1949 . In broad terms all marriages celebrated in
England under English Law in the presence of two witnesses, or they must be
solemnized- whatever other religious ceremony there may be- upon the authority
of the certificate of a superintendent registrar. Further, church of England
marriages will only be valid if either there has been publication of banns, or a
common licence or a special licence from the Archbiscop of Caterbury, or the
certificate of a superintendent registrar has been obtained. Normally, because it is
in the public interest that people should know whether or not other people are
married, civil marriages unaccompanied by a religious ceremony are usually
celebrated either in a registered building or in the office of a superintendent
registrar, although, the Marriage Act 1994 and the Marriage Regulations 1995 now
provide for the approval of other seemly and dignified promises for the purpose.
The marriage Act 1970 permits marriages, under licence of the Registrar General,
in cases of very serious illness where one of the parties is not expected to recover
and cannot be moved to one of the normal places of marriage. In addition, by the
Marriage Act 1983, people suffering from continuing illness and people detained
in institutions may be lawfully married upon a superintendent registrars certificate
in the place where, for the time being, they are.
The effects of marriage
At common law the effect of marriage was to make husband and wife one;
chiefly to the formers advantage. For instance most of the wifes property, at least
during the subsidence of marriage, became her husbands and she lost contractual
capacity, but the husband, who took so much by of benefit, incurred the burden of
becoming liable for her torts. Now after a long and piecemeal process of change,
effected by equity and various statutes, married women have become emancipated
from their husbands, and they are treated in law for most purposes as if they were
single.
Yet inevitably, marriage being a union of the parties, their legal status is
affected by it. There is only space here to mention a few of its more important
effects; and these may be considered from five aspects- first, as to court
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proceedings, second, as to mutual duties and obligations, third, as to the effect of

marriage upon the property of the parties, fourth, as to domestic violence, fifth,
abortion.
Mutual obligations
1. A husband is normally under a duty to maintain his wife and any children of
the marriage according to his ability, and under certain circumstances either
party may be ordered by the court to do so.
2. The Domestic Proceedings and Magistrates Courts Act 1978 empowers
magistrates courts in prescribed circumstances to order a party to a marriage
to make financial provision for the other or children, either by way of
periodical payment or by lump sum/
3. Property of married people presents difficulties. It has been remarked that
originally the common law, in the absence of agreement to the contrary, like
the ancient law of Rome, endowed the husband with all the wifes wordly
goods. This was in keeping with the needs of ancient societies in which the
family group, under the protection of the male,needed to face the world as a
unit.

Source: James Introduction to English Law- P Shears and G Stephenson