defining the family Flashcards
historically how was the family defined
by the church- normatively sexist, western, heterosexual and provided rights for women not men
What has the law moved towards
an increasingly secular and liberal law
How did Sefton Holdings define
using the ordinary person test: What would the ordinary person characterise the relationship as
How did Ross v Collins define the family
the law still requires a broadly recognisable de facto familial nexus e.g. through marriage or adoption, step-sibling/parent, ‘in-laws’. But in this case, it was held that the platonic relationship of acting as devoted brother and sister, would not amount to a familial link.
why was Ross v Collins criticised
it implied that where there is a sexual relationship the law is more likely to find in favour of a familial nexus, in a way that two men or two women, or a platonic man and woman could not.
What happened in Dyson Holdings v Fox
- the courts accreted that an ‘ordinary person’ would regard a relationship as familial where there is an opposite-sex cohabiting couple, provided it was sufficiently permanent (in the case they had lived together for 40 years)
What happened in Helby v Rafferty
- distinguished from Dyson, on the basis that the couple had only lived together for 5 years, hence lacked the permanency required to fulfil a family nexus.
Kimber v Kimber
shows a move away from strict time limits but instead looks for characteristics of a familial nexus such as; do they live in a shared home? Do they have a shared bank account? Is there an exclusive sexual relationship? Do they have children together?
Re (D) (an Infant) (Adoption: Parental Consent)
it was held that a ‘homosexual man is a danger to children’ hence despite being the biological father, his reasons for refusal of the adoption could not be held to be reasonable.
Corbett v Corbett
a man married a transgender female. The court held the marriage was void ab initio because the biological sexual constitution of an individual is fixed at birth and cannot be changed. The court upheld the view that the law should adopt the chromosomal, gonadal and the genital test.
Baxter v Baxter
the radical decision in Baxter meant that procreation need not be intended or anticipated as a possibility
Barclays Bank v O’Brien
‘now that unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society, the law should recognise this. Legal wives are not the only group who are exposed to the emotional pressure of cohabitation’
Re (P) (A Minor)
although the husband was in heterosexual relationship, the child remained in the custody of the mother as she was deemed to be the parent, regardless of the fact she was in a homosexual relationship.
C v C (A Minor)
homosexual couple ruled to be allowed to adopt a child.
