1

Material didáctico alumnos: Unidad Familia

 Derecho de Familia

Contents

Derecho de Familia ............................................................................................................. 1

Contents ................................................................................................................................. 2
TEXTO 1: The Unique System of Matrimonial Laws in India: Understanding the Religion
Specific Marriage Rules .......................................................................................................... 3
TEXTO 2: Prenuptial Agreements ........................................................................................... 8
TEXTO 3: Defense of Marriage Act (DOMA) ......................................................................... 11
TEXTO 4: What Is DOMA and Why Is It Bad? ....................................................................... 13
TEXTO 5: The surrogacy pathway ......................................................................................... 15
Starting the process .......................................................................................................... 15
Surrogacy agreements ...................................................................................................... 16
Reasonable expenses ........................................................................................................ 16
Additional expenditure ..................................................................................................... 17
Becoming legal parent(s) .................................................................................................. 17
TEXTO 6: Children´s act 2005 – Republic of South Africa ..................................................... 18
TEXTO 7A: DIVORCE LAW: REFORMS TO END “BLAME GAME” BETWEEN COUPLES (By
BBC) ...................................................................................................................................... 21
TEXTO 7B: No-fault divorce bill backed by MPs. .................................................................. 24
Published 8 June 2020 .......................................................................................................... 24
'Painful process' ................................................................................................................ 24
'Blame game'................................................................................................................. 25yY
TEXTO 8: What Is Palimony? ................................................................................................ 26

2
Material didáctico alumnos: Unidad Familia
TEXTO 1:

The Unique System of Matrimonial Laws in India: Understanding

the Religion Specific Marriage Rules

Introduction:

The right to marry and have a family is considered one of the basic human rights recognised
in all societies. The Supreme Court of India has time and again recognised it as an inherent
part of the fundamental right to life under Article 21 of the Indian Constitution. In order to
be lawfully married, prospective bride and groom need to follow certain laws and customs.
These laws govern the manner of entering into marriage, specify relations which are
prohibited from marrying each other, lay down the condition to be of a certain age and
other such requirements. The laws of marriage in India are diverse and religion-specific.
They are also referred to as personal laws. Thus, the rules vary with the religion of parties
who wish to get married. Some marriage laws have been modified and enacted by the
Parliament, while others continue to exist as per religious commands.

3
Material didáctico alumnos: Unidad Familia
Religion-Based Marriage Laws in India:

Hindu Marriage- Hindu law of marriage and divorce is provided in The Hindu Marriage Act,
1955. Although Hindu marriages are considered a sacred union, yet contractual features are
incorporated in the law. Besides providing for rules for entering into marriage, the law also
enables both husband and wife to put an end to their marriage in certain situations.
The Hindu Marriage Act, 1955 becomes applicable where the bride and groom are either
Hindus, Buddhists, Sikhs or Jains. It requires strict monogamy to be followed i.e., marriage
with only one person at a time. If an already married person enters into a second marriage,
the first spouse not being divorced or deceased, then such conduct is a punishable offence.
The second marriage will also not be lawful. In order to get married, the bride and groom
should complete the age of 18 and 21 years respectively and be mentally fit for such union.
They should not be related to each other as against the rules. The law requires the couple
to get married by performing their customary ceremonies such as taking seven steps around
the fire or tying of thaali, Once married, the couple needs to register their marriage in the
office of the concerned Sub-Registrar.
Further, if the parties to marriage are Sikhs, then The Anand Marriage Act of 1909 allows
them to enter the marital union as per the Sikh religious ceremony of Anand Karaj.
Muslim Marriage- Muslim marriage rules are quite distinct from Hindu laws. Muslim law for
marriage has its basis in Shariat. Here, marriage is in the nature of a contract and the bride
and groom can enter into various agreements as to their matrimonial rights and obligations.
A lawful Muslim marriage i.e., a Nikah requires the groom to make his proposal of marriage.
The proposal then needs to be accepted by a relative appointed on behalf of the bride. This
is called Ijab and Qubool. Usually, the marriage is officiated by religious judges or Qazis. The
entire process of Nikah should be performed in the same sitting and there should not be
any considerable lag between the proposal and its acceptance. The proposal of marriage
needs to be accompanied by a consideration amount or any other property (Mahr) to be
given by the groom to the bride. This is regarded as a mark of respect towards the wife and
has legal recognition. Further, if the parties belong to Sunni School of Islam, then two male

4
Material didáctico alumnos: Unidad Familia
witnesses or two female witnesses and one male witness should be present at the time of
marriage (Nikah). The marriage contract (Nikahnama) should be signed by the bride, groom,
the Qazi and witnesses.
Furthermore, the bride and groom are also required to be mentally fit and should not be
related to each other as against the rules of consanguinity and affinity. They should have
attained the age of puberty which is generally accepted as 15 years, although a guardian
can contract a marriage for a child below such age.
Some of the detailed rules for marriage are different for Shias and Sunnis. Also, the rules
for marriage are different in the case of males and females. A Muslim male can marry a non-
Muslim woman who is a Kitabiya (believer of book such as a Christian or Jew) whereas a
Muslim woman cannot marry a non-Muslim man without conversion. Further, a Muslim
man is allowed to enter into polygamy while the same is prohibited for a Muslim woman.
Christian Marriage: Marriage of a couple, where both or either of them is a Christian, is
regulated by The Indian Christian Marriage Act, 1872. The divorce proceedings of such
marriages can be instituted under The Indian Divorce Act, 1869.
The marriages are to be performed only by Ministers of Church, Clergyman of Church of
Scotland, Ministers of Religion or Registrars licensed by State Government. As a general
rule, marriage can be solemnized between 6 am to 7 pm in a Church unless there is no such
Church within 5 miles. There are provisions laying down specific rules for marriages of
Christians in general as well as for Indian Christians who are Christian descendants of
natives of India converted to Christianity. The law requires any one party in the marriage
(bride or groom) to give the public notice of marriage to the Minister or Registrar
solemnizing the marriage. Certificate of marriage needs to be issued by such authority and
marriage is also required to be registered.
Further, the bride and groom should have completed the age of 18 and 21 respectively and
should not already be married. The rule of monogamy is followed in Christian marriages.
The marriage needs to be performed in presence of a minimum two witnesses and the
parties are to make a declaration in the standard format. The parties should not be

5
Material didáctico alumnos: Unidad Familia
forbidden to marry for being close relatives. Marriage is also possible where one or both
parties are minors if they obtain the consent of the father, guardian or mother.
Parsi Marriage: The Parsi Marriage and Divorce Act of 1936 lays down the rules for marriage
among Parsis. In order to enter into a marriage, the bride and groom should have completed
18 and 21 years of age respectively and should not be related to each other by consanguinity
or affinity. The marriage is required to be performed as per the religious ceremony of
Ashirvad in presence of a Parsi priest and two other Parsi witnesses. The parties in the
marriage have to follow monogamy strictly. The priest issues a certificate of marriage which
needs to be signed by the bride, groom, priest and the two witnesses. After which, the
certificate is sent to the appointed Registrar.

Shift Towards Uniform Modified Rules:

The aforementioned marriage rules are fraught with a number of issues. Their existence is
traced to our colonial past which has significantly shaped our matrimonial laws and is often
questioned on their rationality. These religion-specific marriage laws contain provisions that
are biased towards men and reflect age-old patriarchal notions. Many of these laws have
now been modified to give women definite rights in marital relationships as well as in
property matters. This is necessary to fulfil the constitutional guarantee of gender equality.
But still much remains to be done. Moreover, the rules also give a lot of preference to
customs. Customs are essential characteristics of society but if left unchecked they grow
into rooted evils as has happened in the case of rampant child marriages in India.
The religious marriage laws also pose problems for those couples who belong to different
faiths. To uphold the right to marry for inter-faith couples, the rules for solemnisation and
registration of their marriages are provided in the Special Marriage Act, 1954. When the
bride and groom are of 18 and 21 years respectively, mentally fit and are not within
prohibited relations; then the marriages can be lawfully solemnised irrespective of their
religious identity. Such laws and the remarkable decisions of the Indian Supreme Court have
opened the way for inter-religious and inter-caste marriages in India. Further, the

6
Material didáctico alumnos: Unidad Familia
Constitution of India also directs the State to strive towards making uniform laws for such
personal matters in Article 44.

Conclusion:
The varied marriage laws applicable to Indians are an obvious implication of the unique and
diverse social milieu we live in. This complex system is often a cause of confusion for laymen
and results in serious legal problems. It is very important that marriage between two
persons be recognised as legal and valid in the eyes of law. Registration of marriages is also
a requirement in most of the marriage laws so that the status of husband and wife is well
established, and they can claim legal rights and remedies from the courts. The multiplicity
of marriage laws is often seen as a problem as it makes compliance difficult along with other
issues discussed above. The way forward is to achieve the constitutional goal of enacting
uniform civil laws based on ideals of gender justice, which would provide for common
matrimonial laws for all religions while also respecting our religious diversity.

Author Details:
Prof. Apoorva Tomar is working as an Assistant Professor at Alliance School of Law. She has
completed her LLM from Faculty of Law, University of Delhi and Bachelor of Laws from ILS
Law College, University of Pune. She holds UGC Net certification and has previously worked
as a Legal Researcher in Delhi State Consumer Disputes Redressal Commission

Fuente texto 1: https://alliance.edu.in/blog/2021/05/25/the-unique-system-of-

matrimonial-laws-in-india-understanding-the-religion-specific-marriage-rules/

7
Material didáctico alumnos: Unidad Familia
TEXTO 2:

Prenuptial Agreements
A prenuptial agreement is a contract between you and your future spouse that is entered
into before marriage. In a prenuptial agreement, you and your spouse disclose to each other
all the money and property you own before getting married. Then, you set forth the rights
and responsibilities each of you will have during the marriage, including how you will divide
your money and property in the event of divorce or the death of one or both of you.

Although New York law already determines how property should be divided in the event a
marriage ends in divorce or death, courts will recognize a valid prenuptial agreement that
may be different from how New York law would divide the property. The prenuptial
agreement takes the control over your property and assets away from the state and places
it in the hands of you and your spouse.

A prenuptial agreement is valid and can be enforced as long as it protects both you and your
spouse and it was entered into with a full and fair disclosure of all assets by both you and
your spouse. The agreement must also be executed and acknowledged with the full
formality required for a property deed to be recorded.

A prenuptial agreement can address many different issues, including:

• Defining separate property – the property and assets you bring to a marriage are
called separate property. As long as you keep your separate property separate from
the property you and your spouse obtain together, the separate property continues
to belong to you alone during and after your marriage. A prenuptial agreement
should specifically identify which property is separate property for each of you.
However, if you do not keep your separate property separate (in your own name
only) then despite the prenuptial agreement, such property may later be considered
marital property and divided equally between you in a divorce.
• Examples:
o You own a house prior to the marriage, and you and your spouse will live in
the house during the marriage. You want to be sure that if you divorce, the
house remains your sole property. A prenuptial agreement will help you do
this, but you should nevertheless keep sole title to the house unless you want
to make a gift to your spouse.

8
Material didáctico alumnos: Unidad Familia
 o You each bring an amount of cash to the marriage which is deposited into a
joint account. If you divorce later, those funds will probably be considered
marital property.
o You will receive a large inheritance shortly after the marriage, and you want
to make sure it is not considered marital property. You should always keep
such funds in your own name unless you want to make a gift to your spouse.
By law, inheritances are separate property, as long as the funds are held in
the recipient’s sole name, but if there is a prenuptial agreement, it should
confirm the inheritance will be separate property.
• Defining marital property – just as you can identify each spouse’s separate property
in a prenuptial agreement, you can identify property you want to be considered as
marital property, even if it is actually separate property.
• Establishing maintenance – a prenuptial agreement can establish maintenance for
you or your spouse during the marriage, particularly if one of you is giving up a
career to “raise the kids.” Also, a prenuptial agreement can establish what kind of
support you or your spouse will pay to the other spouse during or after a divorce, or
establish that there will be no support if you divorce later.
• Establishing support for children of a prior marriage – if you bring minor children
to a marriage and your spouse does not adopt them, a prenuptial agreement can
help make sure the children are provided for if you and your spouse divorce.
• Establishing pre-marriage debt – if you or your spouse brings substantial debt to
the marriage, the prenuptial agreement can state that the debt stays with that
spouse.
• Child support and child custody/visitation – A prenuptial agreement cannot
definitively address child support issues or custody issues for unborn children. Such
issues must be resolved based on circumstances at the time of a separation or
divorce. A court is obligated by New York law to determine whether child support
and custody arrangements are in the best interests of a child, so such issues will
ultimately be reviewed by the court.

While prenuptial agreements are presumed to be enforceable, you or your spouse may
challenge the validity of a prenuptial agreement for certain reasons, including:

• Separate Attorneys – you and your spouse should have separate attorneys if you
are going to enter into a prenuptial agreement. If you do not have separate
attorneys, the court will look at your prenuptial agreement more closely for
unfairness and may not enforce the prenuptial agreement.

9
Material didáctico alumnos: Unidad Familia
 • Fraud – if you or your spouse fails to disclose your assets honestly, or if you hide
your assets, a court may not enforce the prenuptial agreement.
• Coercion/Duress – if either you or your spouse uses pressure to get the prenuptial
agreement signed or does not give the other enough time to consider the prenuptial
agreement, the court may not enforce the prenuptial agreement.
• Unfair and Inequitable – if the prenuptial agreement favors you or your spouse
unfairly, for example by leaving the other spouse with nothing, the court may not
enforce the prenuptial agreement.

Legal Editors: Charlotte Lee and Dalit Yarden, February 2015 (updated June 2020)

Changes may occur in this area of law. The information provided is brought to you as a public
service with the help and assistance of volunteer legal editors, and is intended to help you
better understand the law in general. It is not intended to be legal advice regarding your
particular problem or to substitute for the advice of a lawyer.

Fuente texto 2: https://www.nycbar.org/get-legal-help/article/family-law/marital-

agreements/prenuptial-agreements/

10
Material didáctico alumnos: Unidad Familia
TEXTO 3:

Defense of Marriage Act (DOMA)

The Defense of Marriage Act (DOMA) was a federal law passed by the 104th United States

Congress intended to define and protect the institution of marriage. This law

specifically defined marriage as the union of one man and one woman which allowed

individual states to not recognize same-sex marriages that were performed and recognized

under other states’ laws. Nonetheless, this law's sections were ruled unconstitutional by

the United States Supreme in cases such as United States v. Windsor (2013) and Obergefell

v. Hodges (2015).

This law specifically stated that "the word 'spouse' refers only to a person of the opposite

sex who is a husband or a wife” and further states that “[i]n determining the meaning of

any Act of Congress, or of any ruling, regulation, or interpretation of the various

administrative bureaus and agencies of the United States, the word 'marriage' means only

a legal union between one man and one woman as husband and wife, and the word 'spouse'

refers only to a person of the opposite sex who is a husband or a wife.”

The implications of this law were that it denied a large number of benefits and recognition

to same-sex couples that opposite-sex couples enjoyed. These benefits included but were

not limited to over 1,000 federal protections and privileges such as access to a spouse’s

employment benefits, the recognition of the marriage itself, the rights of inheritance, joint

tax returns and exemptions, and the right to cohabit together in a college or military

housing.

In fact, DOMA authorized that states that banned same-sex marriage did not have to

recognize same-sex marriages that were performed in other states and further specified
that in regards to federal law, marriage is only between a man and a woman. This law had

11
Material didáctico alumnos: Unidad Familia
overwhelming support within Congress while there was speculation that Hawaii was going

to soon recognize same-sex marriage, which could force or prompt other states to recognize

same-sex marriages that occurred in Hawaii. President Bill Clinton signed DOMA into law

on September 21, 1996. Afterwards, about 40 states enacted specific bans on same-sex

marriage.

One of the major provisions of this law was that a nonbiological parent could not have a

legal relationship with a child of the biological parent in a same-sex couple. Moreover,

same-sex couples could not take medical leave to care for their partners or nonbiological
children. They also could not adopt children and during divorce proceedings, they could not

petition the court for custody, visitation rights, or child support.

The supporters of DOMA believed that opposite-sex marriage was the only appropriate

method for family formation and procreation. One of the major arguments from

proponents of DOMA was that same-sex marriage could lead to alternative family

formations and could even result in incestuous relationships and polygamous marriage. On

the other hand, the opponents of DOMA claimed that DOMA’s definition of marriage as

only between one man and one woman and other arguments were discriminatory on the

basis of sex, and equated homosexuality with incest and polygamy.

In 2013 in United States v. Windsor, the U.S. Supreme court struct down DOMA’s definition

of marriage as only between one man and one woman. Furthermore, in 2015 in Obergefell

v. Hodges, the Supreme Court struck down the section of DOMA that allowed individual

states to not recognize same-sex marriages performed in other states. This result granted

same-sex couples the constitutional right to marry.

Fuentes texto 3: https://www.law.cornell.edu/wex/defense_of_marriage_act_(doma)

https://supreme.justia.com/cases/federal/us/570/744/

12
Material didáctico alumnos: Unidad Familia
TEXTO 4:

What Is DOMA and Why Is It Bad?

By Jon W. Davidson, Legal Director and Eden/Rushing Chair

NOVEMBER 27, 2012

Jon W. Davidson, Legal Director

DOMA is the shortened name for the so-called Defense of Marriage Act. DOMA is a
federal law that was passed by Congress and signed by President Clinton in 1996, in
response to the marriage equality litigation in Hawaii in which Lambda Legal was co-
counsel. Some members of Congress were worried that, if same-sex couples won the right
to marry in Hawaii, the federal government and other states might have to start honoring
those marriages. They passed DOMA in an effort to prevent that.

There are two main parts of the law: Section 2 of DOMA says that Congress believes other
states should be able to ignore marriages lawfully entered by same-sex couples, and treat
those legally-married couples as strangers to one another. Section 3 of DOMA says that
the federal government does not have to recognize or honor those marriages. DOMA
does not prohibit states from allowing same-sex couples to marry—it only addresses the
consequences of those marriages for purposes of other states' laws or federal laws.

13
Material didáctico alumnos: Unidad Familia
 Whether or not the federal government recognizes the marriages of same-sex couples
can be very important in their lives. A General Accounting Office report looked at all
federal statutes and found 1,138 federal laws using terms like “spouse,” “husband,”
“wife,” “widow” or “widower,” that treat people differently based on whether or not the
federal government recognizes them as married. As a result of DOMA, married same-sex
couples are denied things like:

• health insurance and pension protections for federal employees' spouses

• social security benefits for widows and widowers
• support and benefits for military spouses
• joint income tax filing and exemption from federal estate taxes
• immigration protections for binational couples

Furthermore, one of the most basic things that spouses often provide for each other is
access to workplace health benefits. Many employers do provide equal access to health
benefits to the spouses of all their employees—different sex and same-sex alike. But
because the federal government does not recognize the marriages of same-sex couples,
lesbian and gay employees who sign their spouses up for health insurance must pay
income taxes on the amount of the premium as if that were part of their paycheck.
Different-sex couples whose employers provide family health care coverage can enroll in
that coverage tax-free.

Beyond all those tangible things, it's very upsetting to couples who are legally married to
have their federal government completely disregard their marriages and families. And the
message it sends to others compounds the damage—if the federal government says
same-sex couples aren’t really married, then others may believe they can be equally
disrespectful of same-sex couples’ relationships and of lesbians and gay men in general.

Lambda Legal won’t give up until DOMA is defeated once and for all. The damage it causes
for our families must end. We are waiting to learn whether the U.S. Supreme Court will
hear our case representing Karen Golinski, who is fighting for family health insurance that
equally covers her spouse. If the Supreme Court takes our case (or one of three others),
we will work together to strike this discriminatory law from the books once and for all.

Fuente texto 4: https://www.lambdalegal.org/blog/what-is-doma-and-why-is-it-bad

14
Material didáctico alumnos: Unidad Familia
TEXTO 5:

The surrogacy pathway

Updated Thursday, 4th March 2021

Have you ever wondered what's involved in the surrogacy process? Find out what costs
can be claimed by a surrogate as reasonable expenses and more.
In the UK commercial surrogacy is illegal, but altruistic surrogacy is permitted. The
Department of Health and Social Care (2019) identify a number of key decisions and
processes that surrogates and intended parent(s) (IP(s) need to consider. The surrogacy
pathway is illustrated in the table below.

Starting the process

There are a number of non-profit organisations that lawfully assist potential surrogates and
intended parent(s) to navigate their surrogacy. These surrogacy organisations perform
various checks (including medical and Disclosure and Barring Service (DBS) for all new
members) and aim to provide support throughout the surrogacy journey. They can help
surrogates find intended parent(s) and vice versa through social events that enable

15
Material didáctico alumnos: Unidad Familia
surrogates and intended parent(s) to get to know each other and decide if they want to
work together.

Surrogacy agreements

Once intended parent(s) and a surrogate (and her spouse or partner if she has one) agree
to work together they can construct a written surrogacy agreement. This is a statement of
intention about how the arrangement will work prior to commencing the surrogacy. All
those involved need to give their full consent to contents. Under UK law, any contracts or
agreements signed before the child is born are not enforceable. Therefore, the agreement
is not a legally binding document and surrogacy can go ahead without one. Surrogacy
organisations recommend constructing an agreement to ensure consideration is given to a
number of issues that may arise during the surrogacy process.
Agreements typically include:
• Strategies to support the surrogate’s health and emotional well-being.
• The extent of intended parent(s) involvement in appointments and decisions
surrounding pre-conception, conception, pregnancy, birth and post-birth
arrangements.
• How difficult scenarios will be responded to for example, miscarriage, still birth, foetal
anomaly, multiple pregnancy, decisions to terminate, or breakdown of relations with
intended parent(s).
• Communication and future relationship with intended parent(s), including explaining to
the child about their origins;
• Legal implications and parental order application arrangements;
• Expenses and costs and under what circumstances payments to the surrogate might be
stopped.

Reasonable expenses

Surrogates can expect to be paid no more than reasonable expenses. The law does not
provide a definition of reasonable expenses. What is regarded as reasonable will depend on
the specific circumstances. The parties to a surrogacy agreement normally estimate their
expenses at the start, with an agreed sum being clearly recorded in their agreement and
the payments spread over the course of the pregnancy.
The family court have generally accepted the following as reasonable expenses:
• Surrogate’s loss of income;
• Surrogate’s partner/spouse’s loss of income;
• Additional childcare costs incurred for attending appointments;
• Domestic support during pregnancy;
• Additional food/supplements;

16
Material didáctico alumnos: Unidad Familia
• Additional classes or therapies to support pregnancy;
• Travel and accommodation expenses;
• Maternity clothing;
• A modest recovery break;
• Any other incidental expenses.

Additional expenditure

Numerous costs are associated with surrogacy such as, fertility clinic tests and treatments,
membership fees of non-profit organisation and legal fees. Non- profit organisations can
provide information about this.

Becoming legal parent(s)

The legislation relating to surrogacy is UK-wide but there are different approaches to the
court systems in Scotland and Northern Ireland. In England and Wales, the law regards the
birth mother as the child’s legal mother. If married, her spouse/civil partner would also be
recognised as a legal parent.
Legal parenthood is transferred from the surrogate to the intended parent(s) through a
parenting order or adoption. To be eligible to apply for a parenting order at least one of the
intended parents(s) must be a genetic parent of the child born to them through surrogacy.
Intended parent(s) submit a parental order application to the court within six months of the
child’s birth. If there is no genetic relationship to the child adoption is the only way that
intended parent(s) can become the child’s legal parent(s). In these circumstances a
registered adoption agency must be involved in the surrogacy process.
The surrogate must consent to a parental order application at least six weeks after the birth
(this provides the surrogate with a cooling-off period). It is possible that during those six
weeks the surrogate will bond with the child and decide to keep the baby. In most surrogacy
arrangements the baby is handed over immediately after being born. However, if the
surrogate refuses consent for the intended parent(s) parental order application they can
apply for a Child Arrangement Order. In these circumstances the court considers what is in
the best interests of the child. In practice the child usually ends up with the intended
parents, even if the surrogate is named as a legal parent.

Fuente texto 5: https://www.open.edu/openlearn/health-sports-psychology/health/the-

surrogacy-pathway

17
Material didáctico alumnos: Unidad Familia
TEXTO 6:

Children´s Act 2005

Republic of South Africa

18
Material didáctico alumnos: Unidad Familia
 19
Material didáctico alumnos: Unidad Familia
Fuente texto 6: https://www.gov.za/sites/default/files/gcis_document/201409/a38-
053.pdf

20
Material didáctico alumnos: Unidad Familia
TEXTO 7A:

DIVORCE LAW: REFORMS TO END “BLAME GAME” BETWEEN

COUPLES (By BBC)

9 April 2019

Under current rules, one spouse has to allege adultery or unreasonable behaviour by the
other for divorce proceedings to start straight away.
In future, they will only have to state that the marriage has broken down irretrievably.
It will also stop one partner refusing a divorce if the other one wants one.
Justice Secretary David Gauke said the changes would help to end the "blame game".
Fault lines
Currently, "fault-based" divorces, where there are allegations of adultery or unreasonable
behaviour - can take as little as three to six months.
But "no-fault" divorces can take much longer - with couples having to prove they have been
living apart for at least one year in Scotland, and at least two years in the rest of the UK.
Living apart can include living in the same house, provided they are not sharing a bed or
living as a couple.
Mr Gauke told BBC News: "Frankly, we are not going to keep marriages together by having
a divorce process that just makes it more acrimonious and tries to apportion blame in such
a way that the couple are likely to have a weaker, poorer relationship subsequently than
they would otherwise do."
He said the new law would be introduced as soon as possible, when parliamentary time
allowed.
The changes follow the Supreme Court's rejection of a woman's appeal for divorce after her
husband refused to agree a split.
Tini Owens, 68, from Worcestershire, wanted to divorce her husband of 40 years, on the
grounds that she was unhappy.
But husband Hugh refused to agree to it and the Supreme Court unanimously rejected her
appeal.
It meant the couple must remain married until 2020.
The UK's most senior judge, Baroness Hale - who is also one of the judges overseeing that
case - has repeatedly called for the laws to be overhauled, describing them as "unjust".
Law firm Payne Hicks Beach said its client Ms Owens welcomed the proposed changes.
The firm added that Ms Owens hoped nobody else would have to go through the "long and
painful process she has had to endure".
21
Material didáctico alumnos: Unidad Familia
The new rules will include a minimum timeframe of six months from petition stage to decree
absolute - the legal document that ends a marriage.
At the end of this period the applicant will be required to continue to affirm their decision
to seek a divorce before the divorce is granted.
The government says this will give a "meaningful period of reflection" and the "opportunity
to turn back".
In addition, a new option will allow couples to apply for a divorce jointly.

Analysis: Old system was not letting couples move on

By BBC legal correspondent Clive Coleman
The introduction of a "no fault" system is huge. It represents the biggest change in divorce
law in 50 years.
Why has it happened? Because the current fault-based divorce system is now seen by many
to exacerbate the stress and tension of an already highly stressful time.
Critically it exposes children to the damaging impact of ongoing conflict between their
parents both during the divorce and afterwards.
While the wider family justice system attempts to help people to resolve issues in a non-
confrontational way, the legal divorce process can make this more difficult because of the
way it throws fault and blame into the mix when spouses are trying to end their relationship
and make sensible living arrangements for their children.
Fault, blame and having to prove two or five years separation were not seen to be helping
couples move on with their lives - and that's why they are being consigned to legal history.

Grounds for divorce in England, Wales and Northern Ireland

People who apply for a divorce must prove their marriage has broken down and give one of
the following five reasons:

• Adultery
• Unreasonable behaviour
• Desertion
• The couple has lived apart for more than two years and both agree to the divorce
• The couple has lived apart for at least five years, even if one partner disagrees

Grounds for divorce in Scotland:

In Scotland, simplified divorce procedure is available to couples without children of the
marriage under 16, where people can prove their marriage is broken down. This can happen

22
Material didáctico alumnos: Unidad Familia
with one year's separation, with the consent of both partners, or two years separation
without consent.
Otherwise, there are two legal grounds for divorce:
1) The marriage has broken down irretrievably, which must be proved by:

• Adultery
• Unreasonable behaviour
• who is starting the legal process of recognition of their acquired gender.
• The couple has lived apart for more than one year and both agree to the divorce
• The couple has lived apart for more than two years, but one does not agree to divorce

2) One partner has an interim gender recognition certificate - issued to a transsexual person

Fuente texto 7A: https://www.bbc.com/news/uk-47860144

23
Material didáctico alumnos: Unidad Familia
TEXTO 7B

No-fault divorce bill backed by MPs.

Published 8 June 2020

A bill introducing "no-fault" divorces in England and Wales has been backed by MPs.
It passed its first hurdle in the Commons by 231 votes to 16 against, following a debate.
Currently, in order to start divorce proceedings immediately, one spouse has to allege
adultery, unreasonable behaviour or desertion has taken place.
Under the proposed law, they will only have to state that the marriage has broken down
irretrievably.
• Wife loses Supreme Court divorce fight
• If divorce is easier, do more people split?
The Divorce, Dissolution and Separation Bill - which has been passed by the House of Lords
- also removes the possibility of contesting the decision to divorce.
At the moment, someone wishing to obtain a divorce without the consent of their spouse
must live apart from them for five years.

Divorce proceedings will still be challengeable on certain grounds including fraud and
coercion. Currently fewer than 2% of divorce cases are contested.
The bill also introduces a new option, allowing couples to jointly apply for a divorce, where
the decision to separate is a mutual one.
And it replaces the terms "decree nisi" and "decree absolute" with "conditional order" and
"final order". "Petitioners" will also become "applicants".
Under the proposals, there must be a minimum six-month period between the lodging of a
petition to the divorce being made final.
'Painful process'
Opening the debate, Justice Secretary Robert Buckland said the bill will seek to make
separation "less traumatic".
He told MPs: "No-one sets out thinking that their marriage is going to end, no-one wants
their marriage to break down, none of us are therefore indifferent when a couple's lifelong
commitment has sadly deteriorated.
"It is a very sad circumstance but the law, I believe, should reduce conflict when it arises.
"Where divorce is inevitable, this bill seeks to make the legal process less painful."
Conservative MP Jonathan Gullis said he had to put the blame on his partner during his own
divorce, saying: "I would have preferred to have had a no-fault divorce.

24
Material didáctico alumnos: Unidad Familia
"It's a very painful process."
But, raising concerns about the bill, the DUP's Jim Shannon said: "More funding must be
allocated to counselling services to provide trained help for those in marriage difficulties
and to prioritise saving a marriage."
Mr Buckland replied: "It is, I think, the sad experience that by the time a decision to issue a
divorce petition has been made then matters have sadly gone beyond that."
Labour's shadow justice secretary David Lammy says his party welcomed the bill as it offers
a "common-sense approach" and respects the institution of marriage and civil partnerships.
He said the new law "will promote conciliations and compromise" and it will reduce legal
costs which can reach "eye-watering sums quite unnecessarily".

The bill cleared its first hurdle - its second reading - in the House of Commons; despite some
Conservatives expressing opposition.
In a letter to the Telegraph, MPs including Sir Desmond Swayne, Sir John Hayes and Fiona
Bruce urged the government to focus on helping couples reconcile instead of "undermining
the commitment of marriage".
They said the bill was badly-timed, arguing that many "otherwise durable" marriages were
under "intense Covid-related strain".
'Blame game'
The move to change divorce laws was partly prompted by the case of
- a woman from Worcestershire who wanted to divorce her husband of 40 years.
However, because her husband contested the split, the law stated she could only obtain a
divorce by living apart from him for five years.
Mrs Owens said she was "desperately unhappy" in the marriage but Mr Owens disagreed
and said the couple still had a "few years" to enjoy.
In 2018, her case was heard and rejected by Supreme Court justices - one of whom said,
they had ruled against Mrs Owens with "no enthusiasm whatsoever" and that it was up to
Parliament to change the law.
A Ministry of Justice spokesman said: "We will always uphold the institution of marriage.
But when divorce cannot be avoided, the law must not create conflict between couples that
so often harms the children involved.
"Our reforms remove the needless 'blame game', while ensuring there is a minimum six-
month time frame to allow for reflection and the opportunity to turn back.

Fuente texto 7B: https://www.bbc.com/news/uk-politics-52964429

25
Material didáctico alumnos: Unidad Familia
TEXTO 8:

What Is Palimony?

Palimony is a form of financial support available to people who were never married but
formerly lived together as a couple and are now separated. This type of support is calculated
separately from child support and alimony.
Unmarried couples often live together. As a result, unmarried partners acquire property
together as a couple. If such a couple splits up, they may seek to divide their mutually owned
properties and encounter disagreements in the process.
In some states, the law has put measures in place to resolve these types of disputes.
Jump to: Palimony States | Palimony Agreements | Palimony Suit | Palimony Payments
Factors | Palimony Payments Qualifications | Palimony Modification

Which States Allow Palimony Agreements?

Map of Palimony States: Palimony agreements allowed vs Palimony agreements not

allowed

26
Material didáctico alumnos: Unidad Familia
These states allow palimony agreements or some form of them:

• New Mexico
• Alaska • New York
• Arizona • North Carolina
• California • North Dakota
• Colorado • Ohio
• Delaware • Oregon
• Florida • Pennsylvania
• Hawaii • Rhode Island
• Idaho • Texas
• Illinois • Utah
• Indiana • Vermont
• Iowa • Virginia
• Maryland • Washington
• Minnesota • Wisconsin
• Nevada • Wyoming

What are Palimony Agreements?

Palimony was established in the 1976 California landmark case of Marvin v. Marvin. The
court found that “in the absence of an express agreement, courts may look to a variety of
other remedies to divide property equitably.” The California Supreme Court also recognized
that despite the state’s abolishment of common law marriage in 1896, California still
recognizes contracts made between couples outside of marriage. So general contract
principles apply, and the party seeking to enforce a contract must legally prove that a valid
contract was formed.
The agreement may be express or implied, oral, or written. The contract may also include
provisions for a sexual relationship. However, these provisions will not be enforced if they
are based on an illegal exchange involving sexual services. Also, the traditional defenses to
contract formation are applicable. For instance, agreements formed subject to fraud, duress
(improper physical, financial, or legal threats), incapacity (e.g., parties under the age of
majority, guardian ad litem), failure to comply with an applicable statute of frauds (transfers
involving ownership interests in land must be commemorated in a signed writing that states
the essential terms of the transaction, including an adequate legal description of the land),
and unconscionability may be asserted to prevent the enforcement of a cohabitation
agreement.

27
Material didáctico alumnos: Unidad Familia
How to File A Palimony Suit?

To begin a palimony suit, the party seeking to enforce an intercouple promise must file a
petition with the court in which they seek to enforce their claim.
This court would most likely be located in the last place in which the couple lived together
as a couple. However, other courts could be selected as an appropriate venue, as dictated
by fairness and other procedural rules.
Each of the parties to a palimony suit may hire a family law attorney or law firm of their
choice, but an attorney will not be provided by the state at no cost. Also, the parties will not
be entitled to a trial by jury.

Palimony Can Vary by Your State

Notably, there are states that do not award palimony but do recognize palimony awards
granted in other states pursuant to the full faith and credit guarantees provided by the U.S.
Constitution. For instance, Florida does not permit recoveries relating to palimony claims in
its family law provisions. Although Florida law will enforce out-of-state palimony awards if
these claims are based on a valid final judgment (the court has reached a decision
and actually decided to award palimony, so the case is no longer pending a decision).
However, the court may enforce a palimony award even if it is subject to a pending appeal.
A Florida court of appeals solidified this position in the case of Poe v. Estate of Levy. In this
case, an unmarried plaintiff sought an award of half of his deceased partner’s estate in
family court. The plaintiff alleged that the parties had lived as husband and wife and
subsequently entered into an implied cohabitation agreement that he claimed included the
parties’ intent to “… pool their resources and funds in common bank accounts, for the
purpose of acquiring property and paying for the necessities of life,” among other claims.
The appellate court decidedly ruled that even if the parties had been married, that would
not automatically entitle anyone to half of the deceased’s estate. The court further
elaborated that “to allow the appellant to make a claim against the deceased’s estate on
the same basis as if the parties had been married would, in essence, constitute implying in
law a marriage that never existed contrary to the law in Florida abolishing common-law
marriages and establishing certain legal prerequisites to establish a valid legal marriage. No
jurisdiction to our knowledge has gone this far.”

28
Material didáctico alumnos: Unidad Familia
Factors for Palimony Payments

In cases in which the circumstances are not so clear, a palimony court may consider certain
other factors such as:

• cohabitation (domestic partners)

• length of the relationship
• promises to provide support made by one party
• written financial agreements
• the financial positions of each party
• income inequality between the parties
• the existence of inter-relational children
• sacrifices made for the career advancement of the other party and/or raising
children
• whether the couple generally held themselves out to the public as husband and wife
• the existence of a new supportive relationship (e.g., one party has since been
married).

If the party seeking to prove the existence of an intercouple agreement fails to prove that
such an agreement was formed (as was the case in Marvin), the court will deny a palimony
award.

What Are The Palimony Payment Qualifications?

The principles upon which palimony may be awarded are quite similar to alimony (spousal
support) except that it may be awarded without a legal marriage.

29
Material didáctico alumnos: Unidad Familia
Being that marriage is based on an express contract (typically an oral promise of intent to
be married), palimony courts will look at the circumstances surrounding the couple to
determine if the couple intended to form a contract without being married.
A written contract would quite obviously satisfy this requirement, and courts will first seek
to find if a written cohabitation agreement was formed. However, a written contract may
not be required for the court to find that a couple intended to form a contract.
In which case, the court will admit extrinsic evidence (evidence relating to a contract that
does not appear in the contract itself) to determine if oral promises may be enforced.

Can a Palimony Award Be Modified?

Typically, palimony awards may not be modified. In some cases, however, the payor partner
is able to demonstrate a substantial change in circumstances that significantly affect their
need to receive or the ability to pay support. This can be shown by either a change in the
financial needs of the payee or a change in the payor’s ability to continue paying the same
amount. A court may also consider the voluntary retirement of the payor from the labor
market in these situations. However, a party may not modify their support payments based
on a voluntary reduction of income.
For example, if a payor partner intentionally quits their job, the payor may not modify to
reduce their payments due to this (being that it was intentional). To obtain a palimony
modification, the party seeking to modify must file a petition in a court that can exercise
jurisdiction (control) over the palimony case. The petition must state the reasons for the
modification. Thereafter, a hearing will be scheduled to determine if a modification is
justified. The other party must receive advanced notice of the hearing and be afforded an
opportunity to attend the modification hearing. However, if the modification is being
sought in the same court that originally issued the palimony, jurisdiction does not have to
be reestablished.
The principles upon which palimony are based remain unsettled to a certain extent among
several states. Thus, a written cohabitation agreement may ease the transition away from
cohabitation. A well-drafted cohabitation agreement should thoroughly account for the
needs of both parties in the event of a separation. It may be in the best interests of both
partners to seek legal advice separately within the protections afforded by a privileged
attorney-client relationship. Therefore, hiring an attorney individually (as opposed to
mutually) may preserve the property rights of both unmarried partners.

Fuente texto 8: https://lawsuit.org/family-law/palimony-law-guide/

30
Material didáctico alumnos: Unidad Familia