Chapter 14: The law of persons and family law Flashcards
14.2 Law of domicile
The role played by domicile – an individual’s domicile determines the system of personal law (governs marriage, divorce etc) which applies to an individual with connections to more than one jurisdiction. Domicile also impacts tax. UK resident but non domiciled individuals can pay tax on worldwide income and gains or use the remittance basis. Domicile is a concept of common law and awards individuals a deemed domicile if applicable.
The five basic principles of domicile – no individual can be without domicile, no individual can have more than one domicile at the same time, domicile must relate to a territory subject to a single system of law, an existing domicile is presumed to continue until proof a new one has been acquired and an individual’s domicile must be determined according to English law.
Types of domicile in English law – recognises three kinds of domicile:
Domicile of origin – a child born has the domicile of origin in the country in which their father was domiciled in at the time or the domicile of their mother if their father is not alive or is an illegitimate child
Domicile of dependence – unmarried children until the age of 16 and the mentally disabled follow the domicile of their father or mother. If the father’s domicile changes, so does the child. When they reach 16, they have domicile of choice
Domicile of choice – an individual can acquire a domicile of choice by the combination of residence and intention of indefinite residence in a territory (the animus manendi). The following matters will be considered:
• the place where their property is kept
• acquisition of a home
• employment or business interests
• form and contents of their will
• registration as a voter
• acquisition of a new nationality
• residence of their family
• membership of clubs and charitable associations
• social habits
• learning the local language
• place where they wish to be buried
Where a domicile or choice is abandoned either a new domicile of choice is acquired or the individual’s domicile of origin revives.
14.3 Marriage and civil partnership
Validity of marriage and civil partnership – the requisites of a valid marriage are:
• they are capable of marrying regarding age and physical capacity, cannot marry under 16 and under 18 requires parental consent
• they are not validly married to another individual
• they understand the nature of the marriage contract and freely consent to marry each other
• they must observe the forms and ceremonies of marriage as laid down by statute.
Void and voidable marriages and civil partnerships – a void marriage or civil partnership is regarded as never taking place at all. Marriages and civil partnership are voidable until the date of annulment, in any of the following cases:
• either party did not validly consent
• either party was suffering from mental disorder
• at the time of marriage one party was pregnant by an individual other than the party to union
• at the time of marriage one party has been granted a gender re-assignment certificate and the other party to the union was ignorant to this at the time
• the marriage has not been consummated (only to a marriage of a man and woman)
• one of the parties suffers from a venereal disease in a communicable form at the time of marriage (only to a marriage of a man and woman)
Separation of parties to a marriage or civil partnership – CGT rules on transfers requires the couple live together in the tax year to benefit from this. For tax purposes a couple can live together unless they separated in one of the following ways:
• under a court order – known as a decree of judicial separation, the couple are legally married but not recognised as a couple under law and their obligations cease. It is similar to a decree of divorce/dissolution but unlike that a decree of judicial separation can be granted in the first year of marriage
• by a deed of separation – parties agree upon the terms of separation and are written into the deed, which sets out the on-going arrangements between a separating couple. They remain married though
• in circumstances where the separation is likely to be permanent
14.3 Marriage and civil partnership (2)
Divorce and dissolution – you cannot file for divorce or dissolution within the first year of marriage. The sole ground for this is the union has irretrievably broken down. This occurs in the following cases:
• one party has behaved in a way that the other party cannot reasonably be expected to live with them
• one party has deserted the other for a continuous period of at least two years without consent immediately preceding the petition for divorce
• the parties have lived apart for a continuous period of at least two years immediately preceding the petition for divorce and the other party consents to the divorce
• the parties have lived apart for a continuous period of at least five years immediately preceding the petition for divorce
• one party has committed adultery and the other party finds it intolerable to live with them.
The divorce/dissolution process takes place in four main stages:
• the filing for divorce
• response to the divorce/dissolution petition by the other party
• application to the court for a decree nisi/conditional order of dissolution. When granted this form a conditional order allowing the couple to get divorced but the marriage has not ended at this stage
• application to the court for a decree absolute/dissolution order. When granted this formally brings the marriage to an end
there can be extra orders required for divorce like financial provisions, property adjustment, pension attachment and child custody orders, however they do not have to seek the assistance of the court with these and can come up with their own agreement, they can get a consent order from the court with these agreements. The main asset is normally the property adjustment proceedings. A Mesher order is a court take that takes effect as a trust under which the sale of the home is deferred until a specified event occurs.
Spouses and civil partners: wills and intestacy – a will be revoked by a person’s marriage even in the case of a voidable marriage. This is not the case when the will is made and they intended that their union should not result in the revocation of the will. When marriage is ended by divorce or dissolution, the will is not revoked but the provisions that appoint the other party as an executor or trustee lose their effect.
Death and presumption of death – this brings the union to an end. Where a person has been missing for a period of seven years, a spouse may apply to the high court for a declaration of presumed death in respect of that person.
14.4 Children
The members of an employee’s family include children, the following are children for tax purposes:
• a legitimate child
• a child of a void marriage
• a child born to unmarried parents but whose parents subsequently marry provided their father was domiciled in England and Wales at the time of the marriage
• a child conceived by fertility treatment where the mother was married or in a stable family relationship
• an adopted child or one subject to a parental order in the context of a surrogacy arrangement
• a child who otherwise be treated as illegitimate
the term child is not restricted to individuals under the age of 18, any person in one of the above categories is a child for tax purposes. This means step-children, children of individuals who have only parental responsibility, foster children and children of a guardian as not children of the person stated in tax law.
14.5 Nationality
An individual is allowed to claim for a personal allowance if they are UK tax resident or are a national of an EEA state. Nationality is a concept that determines a person’s political status. There are three categories of citizenship in the UK: • British citizenship – can be acquired at birth, adoption or descent by registration or by naturalisation. British Overseas Territories citizens born before March 2002 are also British citizens. An adult citizen of another country can become a British citizen by naturalisation where they make an application for citizenship, are of good character, UK resident for 5 years, have sufficient knowledge of the English language and intend to make their home in the UK. • British Overseas Territories citizenship – they derive their British nationality from their connection with an overseas territory. This can be acquired at birth, adoption or descent by registration or naturalisation. If born before March 2002 they are also British citizens • British Overseas citizenship – residual category of citizenship. It cannot be acquired by birth, descent or naturalisation and will. This class of citizenship does not carry with it the right of abode in the UK.
14.6 Lasting and enduring powers of attorney
Enduring powers of attorney were introduced by the Enduring Powers of Attorney Act 1985 and could be created until 1 October 2007 when the act was repealed and a new expanded power called a lasting power of attorney was introduced by the Mental Capacity Act 2005. Enduring powers created before 1 October 2007 continue to have effect.
A power of attorney is a power created by one person (donor) and given to another so that the attorney can act as agent of the donor, it gives a lasting power for the attorney authority to make decisions on behalf of the donor, even when the donor no longer has capacity to act on their own behalf. In order for a lasting power of attorney to be valid, the following requirements must be met:
• The donor must be over 18 and of sound mind
• The instrument creating the power cannot give the done the power to appoint a substitute or successor although the instrument itself may appoint a person to replace the done
• The instrument must be in the prescribed format
• The instrument must include two statements by the donor. The done must make a statement that they have read the instrument and understand the duties imposed
• The instrument must contain an LPA certificate
• The instrument must be completed and signed by the donor in the presence of a witness and the certificate must be signed by the donor
A power of attorney is activated when it is registered with the public guardian. Prior to that the instrument creating the power may be revoked by the donor when they have capacity to do so. The court may revoke the power if the donor created it under duress or the done contravenes their authority. A donee’s appointment is terminated if they disclaim it, they die, they are declared bankrupt or become subject to a debt relief order (DRO), they lack capacity, they are removed by the court or a marriage between the donor and the done is dissolved or annulled.
