Family Law Flashcards
What are the requirements of a valid marriage?
- 16 or over
- No close blood relationship
- Be single (not already married)
- One man one women (Same Sex Marriage Act 2013 changed this)
What formalities must be met for a marriage ceremony to be valid?
- Conducted by an authorised person
- Take place in an authorised building (need a marriage license)
- Held at the correct times
- Any preliminary procedures are followed (will depend on the venue)
Within Church of England Ceremonies, what is meant by ‘Banns’?
Banns are an announcement that the marriage is going to take place. It must be read out in church on 3 Sundays in the 3 months before the wedding
Within Church of England Ceremonies, what is meant by ‘A Common License’?
Granted by a Bishop. The parties must swear there is no reason why they should not get married, and one of the parties must live in the parish of the church for at least 15 days before the wedding
Within Church of England Ceremonies, what is meant by ‘A Special License’?
Can only be granted by the Archbishop of Canterbury and allows the couple to get married anywhere and at any time
Within Church of England Ceremonies, what is meant by ‘A Superintendent Registrar’s Certificate’?
This notice is recorded in a book which is open to public inspection and after 21 days the couple will receive a certificate allowing them to marry
Why may couples choose to have a civil marriage rather than a religious one?
- Not religious
- Don’t want a church wedding
- Want to be more unique for example, like getting married at a zoo
How can someone aged 16 or 17 marry?
- Parental permission
- Apply to the local magistrates court
What happens if one of the parties are 16 or 17 in a marriage?
It is legally a valid marriage, but one or two of the parties may be prosecuted for giving false information
What happens if the formalities are not observed?
- If both parties knew they are not met, then it will be declared void
- If one of the parties thought it was genuine, and all formalities had been met, then it is a valid marriage
What is a ‘Voidable Marriage’?
A marriage which is valid at the time, but believe their marriage can be annulled for a number or reasons
Define ‘Annulled’
For a marriage to be declared invalid
What reasons are there for a marriage to be voidable?
- No consummation
- No consent
- Mental disorder making the person unfit for marriage
- One party has a STD which the other was not aware of
- Woman pregnant by another man at the time of marriage
What is meant by ‘Non Consummation’ in terms of Annulment?
Where in a marriage there has not been any sexual intercourse
What is meant by ‘Lack of Consent’ in terms of Annulment?
Where one partner did not fully agree to be married, can be down to duress, mistake or a lack of understanding
What is meant by ‘Mental Disorder’ in terms of Annulment?
Though capable of giving consent, one of the parties was suffering a mental condition meaning they are unfit for marriage
What is meant by ‘Sexually Transmitted Disease’ in terms of Annulment?
Where one of the parties, unknown to the other, was suffering from a STD
What is meant by ‘Pregnancy’ in terms of Annulment?
At the time of the marriage, where the bride is pregnant with another mans child, unknown to the groom
What time limits are there on an annulment?
- Can be made immediately after the marriage
- Made within 3 yeas of the marriage, but this time can be extended for a mental disorder
What is meant by a ‘Civil Partnership’?
Usually for same sex couples, so they have all the same rights and responsibilities as a married couple, but they are not actually married
What law does Divorce come from?
Matrimonial Causes Act 1973
How can an Irretrievable Breakdown of Marriage be proven?
- Adultery
- Unreasonable behaviour
- Desertion
- Living apart for 2 years
- Living apart for 5 years
What is meant by ‘Maintenance’?
A regular payment of money from one spouse to another
What is meant by a ‘Lump-sum Payment’?
A one-off sum of money paid to the other spouse
What is meant by a ‘Property-adjustment Order’?
Usually the house is sold and the assets is divided between the parties
What is meant by ‘Decree Nisi’?
When the court is satisfied one of the 5 facts has been met, they will grant a decree nisi. This is the first step towards the divorce
What is meant by ‘Decree Absolute’?
6 weeks after the Decree Nisi is granted, then the petitioner can apply for the Decree to be Absolute, and this therefore ends the marriage
What is a ‘Pre-nuptial Agreement’?
A contract made between the husband and the wife before they get married. It sets out how their assets should be divided if they ever get divorced, but they are not enforceable in the UK
What is ‘Child Maintenance’?
The parent without day-to-day care of the child pays maintenance to the other parent for the costs of that child
Within Child Maintenance, what does ‘Family Arrangement’ mean?
Where the family sorts out child maintenance between themselves, usually not involving anyone else
Within Child Maintenance, what does ‘Consent Orders’ mean?
When the parents have agreed the child maintenance, this can be made enforceable and official by a court
Within Child Maintenance, what does the ‘Child Support Agency’ do?
If the family can not come to a decision, then they can help. They work out how much maintenance is owed, track down parents too
Why would someone choose to get the Child Support Agency’s help?
- Parties can no longer work together
- Parties do not have contact with each other
- Spouse looking after the child does not know how much money the other spouse has and does not trust them
What criticisms are there of the Child Support Agency?
- Takes a long time
- Delays in working out maintenance - can cause financial problems for spouse taking main care of the child
How does the courts deal with parents who can’t decide what happens to their children?
They consider:
(a) the child’s own wishes
(b) the child’s physical, emotional and educational needs
(c) the child’s age, sex and background
(d) any harm the child HAS suffered or MAY suffer in the future
(e) how able the child’s parents are to meet the child’s needs
(f) how the child might be affected by any change in circumstances
What orders can the court make for children?
- Residence order
- Contact order
- Prohibitation order
- Specific Issue order
What is a ‘Residence Order’?
Where and who the child should live with
What is a ‘Contact Order’?
Makes the person who has main care of the child allow contact of the other parent, and other family members
What is a ‘Prohibition Order’?
Stop a parent from doing something (e.g taking them abroad)
What is a ‘Specific Issue Order’?
Where the parents can’t agree on something (like school) the court will decide the outcome of that dispute
What is the role of the courts in divorce?
Can only enforce (grant) divorce decree. Everything else has to be sorted by the parents and family
What is Mediation?
Where a mediator helps parties come to a mutual decision with each other
How can a mediator be used in family cases?
- Help the marriage continue
- If beyond repair, help couples come to a mutual decision about children, property and finance
What are the problems with the law of divorce?
- A lot of it based on fault
- Post divorce financial issues
- Some parents denied to see children
- Child Support Agency have caused disputes, resulting in parents not paying the money
What is the words used to describe the maker of a will?
Testator - Male
Testatrix - Female
What is a will?
A formal declaration by a person of what they want to happen to their estate/property when they die
What law does wills come under?
Wills Act 1837, as amended by the Administration of Justice Act 1982
What 3 things must the testator be when making a will?
1) 18 or over (privileged will if on active service or a sailed at sea - 14 years old)
2) Of sound mind
3) Acting of their own free will
What formalities are needed for a will to be valid?
- Written
- Signed by the testator in the presence of at least 2 non-beneficial witnesses
Does the testator of a will have to sign in a certain place in the document?
It can be anywhere, as long as it is signed
Is there an age restriction to be a witness on a will?
No, along as they understand what they are doing
When can a witness not be used?
- If not competent, mentally and physically
- If a beneficiary
- If your spouse is benefiting from the will
What is a privileged will?
Where on active duty in the armed forces, if in danger of dying, they cannot be expected to write a formal will, and therefore do not have to follow the formalities
What is the name of the document which can change a will?
Codicil
What is a Codicil?
A document to add or take away from a will. It must be written, witnessed and signed like a normal will. It will only change the part of the will which is mentioned
What are the 5 ways to revoke a will?
- Make another will
- Make a formal revocation
- Deliberately destroying the will
- By marriage
- By divorce
How does making another will revoke previous ones?
Testator must say that in the new will all previous wills are revoked. If they do not say this, the new will will only revoke the overlapping parts of the old one and the new one will be enforceable
How does making a formal revocation revoke a will?
Will revoke the will even if the testator hasn’t made another one. Must be signed and witnesses like a proper will
How does destroying a will revoke it?
Needs to be deliberately destroyed. For example tearing, burning or writing over
How does marriage revoke a will?
If the will is made before marriage and the testator gets married, it will revoke it. The only exception is ‘in contemplation of marriage’ where the testator is intending to get married to a specific person and states this
How does divorce revoke a will?
Anything going to the former spouse will be revoked, but the rest of then will is fine
What are the 3 types of legacy?
- Specific legacy
- General legacy
- Residuary legacy
What is a Specific Legacy?
Where the testator leaves a specific item to a beneficiary, for example a car with the number plate provided
What is a General Legacy?
Where the testator does not specifically identify what they are leaving, but are leaving something. For example, leaving a painting from a collection, but not stating what painting
What is a Residuary Legacy?
Where the testator says ‘I leave the rest of my property to…’, therefore they are getting the rest of the property, if anything
What law does the rules of Intestacy come from?
Administration of Estates Act 1925
If there is a surviving spouse/civil partner and children, how is the estate divided? (Intestacy rules)
First £250,000 to spouse. Any remainder divided in 2, and that half goes back up to spouse. Then the other half gets divided according to how many children they have. If one child is dead their money will go to their kids, and if no kids the money will be split between the remaining children (deceased children)
If there is a spouse/civil partner and no children, but parents are present, how will the estate be divided? (Intestacy rules)
First £450,000 to partner. Any remainder is divided in 2, and one half is added to the partners sum. The other half is given to the parents together, or divided in 2 if they are not together. Step parents can not inherit
If there is a spouse/civil partner, no children, no parents, but siblings, nieces and nephews are present, how will the estate be divided? (Intestacy rules)
First £450,000 to partner. Remainder divided by 2. First half is given to the partner, and the other is divided between the siblings/nieces and nephews. If one of them has died, there children will share their sum of money
If there is a surviving spouse/civil partner, and no other family, what happens to the estate? (Intestacy rules)
Partner will inherit all of the estate
When there is no surviving spouse/civil partner, what is the order of family members we go through to find the person who will inherit? (Intestacy rules)
1) Children
2) Parents
3) Siblings
4) Half-siblings
5) Grandparents
6) Aunts and Uncles
7) Half-aunts and uncles
What does Bona Vacantia mean?
Where there are no surviving relatives close enough, the estate is known as Bona Vacantia. Then, the whole estate will go to the Crown
What is a Personal Representative?
When someone does with a will, someone has to deal with the estate and sort out all of the property
What is an Administrator?
When someone dies without a will, then the person who deals with the estate and property is known as an administrator
What is a Probate?
A right to act under the will for a PR
What is Letters of Administration?
A right to act for an administrator
When the PR’s are sure they have details of all debts and assets, they must:
(a) Fill in a probate application form
(b) Fill in a form giving details of the estate
(c) Send or take those forms, together with the death certificate and will (if there is one) to the Local Probate Registry
What is a Caveat?
Where there is an objection to the probate or letters of administration, the person who objects must inform the Probate Registry of their objection. Caveats must be heard and decided upon before a grant of probate can be made
How will the PR distribute the estate?
They will first pay of any debts, and the money/property left will be disrupted between the people who are entitled
What is Provision for Family and Dependants?
Where someone feels they have a right to some sort of inheritance, but are not left any with the method of distribution used
What people have the right to apply for provision of family and dependants?
(a) wife or husband
(b) former spouse (if not remarried)
(c) child
(d) anyone treated like a child
(e) anyone maintained by the deceased
(f) someone who has cohabited with the deceased for at least 2 years
For the provision for family and dependants, what will the court take in to consideration?
- Size of the estate
- Needs of the applicant
- Needs of those who do benefit from the will
- Reasons why the deceased did not leave anything to the applicant
- Way in which the applicant behaved towards the deceased during their life
What is the time limit for an applicant for provision for family and dependants?
Within 6 months of the probate or letters of administration being granted
What is the Forfeiture Rule? And what law is it from?
Where someone can benefit from a will if they have killed someone. For example, in Re K a battered wife killed her husband, and was able to claim to some of his estate
The law comes from the Forfeiture Act 1982
