Family Law Problem Question

In order to answer this question one must assess and consider the law relating to family matters and the access to justice for a foreign national. This will require an in-depth analysis of the rules relating to the family unit.

According to the scenario, Jane is concerned about the threat of violence from her husband, Tarzan, to her and her two children. Further she wishes to obtain maintenance for herself and her children, and she also requires advise over the grounds that she could petition for a divorce. In terms of the first requirement that Jane will need advice over is her concern over the threat of violence to herself and her children. According to part IV of the Family Law Act of 1996, certain measures have know been enacted to safeguard the victims of domestic violence. The first element under the statutory framework that requires consideration is the rights to the house that may exist^[1]. It is assumed by the wording of the scenario that Jane and her husband have bought their property. Therefore, Jane has a legally enforceable right to remain in the matrimonial home in preference to her husband, Tarzan. The next issue that requires consideration is the application for a non-molestation order. This is where an order is granted that restrains an individual from applying force to another. If Jane can advance evidence that she is in fear of being attacked or she has been attacked in the past then she can apply for an order to restrain Tarzan for hitting or placing in her fear any further. If Tarzan breaches this order then he is guilty of contempt and also of the criminal offence of assault.

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The next issue that Jane requires advise over is the maintenance that she maybe entitled to. This requires two considerations, firstly the maintenance for herself and secondly maintenance for the children. Accordingly a spouse has both a legal and moral duty to provide for the other spouse. This is evidenced by two pieces of legislation. According to the Domestic Proceedings and Magistrates Courts Act of 1978, a financial order can be made if against Tarzan if Jane can establish one of the grounds identified by section 1. These grounds consist of one of the parties to the marriage failing to provide reasonable maintenance for the applicant; failure to provide reasonable maintenance for any child; or the respondent has acted in such a way that the applicant can no longer live with the respondent. It is clear from the scenario that all of these grounds be evidenced created. Further, the orders that maybe granted are periodical payments^[2] or a lump sum payment^[3]. Alternative, Jane may apply under section 27 of the Matrimonial Causes Act of 1973. This provides that either party to the marriage can apply for maintenance if the respondent has failed to provide reasonable maintenance for the applicant. It is arguable from the wording of the scenario that Jane will be able to apply for either of these orders. In terms of maintenance for the two children, Jane will have to rely upon the legislation that is created for child support. According to Schedule 1 of the Child Support Act of 1991, the calculations for maintenance payments are based purely upon the non-resident parent’s weekly income. The basic rule that the Act specifies is 15% of the non-resident parent’s income. This is where only one qualifying child is in existence. However, the scenario provides that Jane and Tarzan have two children. Thus, Tarzan will be liable for 20% under this Act. However, if the basic rate is not applicable for Tarzan, then he would come under the reduced rate. This is only applicable if Tarzan is on a low earning. According to Schedule 1, the reduced rate is applicable if the non-resident parent’s income is less than £200 per week but more than £100 per week. Further, if Tarzan’s income is lower than this then the flat rate may apply. Again according to Schedule 1, a flat rate is £5 if the net weekly income is £100 or less, or the non-resident parent receives a prescribed benefit^[4], or the partner of the non-resident parent receives any prescribed benefit^[5]. If Tarzan’s income is less than the flat rate then the nil rate applies. According to Schedule 1, the nil rate applies where the non-resident parent earns less than £5 per week, or is a student, a child^[6], or a prisoner. It is clear arguably that this latter rate will not apply in this case. Thus, Tarzan will be liable to pay 20% of his weekly earners.

The next area that requires consideration is the nature of divorce. According to section 1(1) of the Matrimonial Causes Act of 1973, the solitary ground for petitioning for a divorce is the irretrievable breakdown of the marriage. This can then be evidenced by one of the five facts located under section 1(2). According to section 1(2) (b), the petitioner can apply for a divorce on the grounds that ‘the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent’. It is clear that the threat of violence from Tarzan would amount to unreasonable behaviour that Jane cannot be expected to live with^[7]. Thus a decree nisi would be available in this case.

The next area of consideration that requires consideration is whether Jane will encounter any bars to in her pursuit of access to justice. According to the scenario, Jane and her husband, Tarzan, married in Uganda and subsequently moved over to England. Since they arrived in the country, Tarzan’s attitude has altered radically towards Jane. It is clear that the couple married in Uganda and are therefore bound by the matrimonial circumstances of the law in that country. However, the terms of the divorce will be governed by English law as the couple are now domiciled in this country. The likely barrier that could exist is over Jane’s availability of legal aid. As she is domiciled in this country then she comes under this countries jurisdiction. The ethos behind the Access to Justice Act of 1999 provides that anyone who is domiciled in this country is entitled to legal assistance if they fill the criteria.

The final consideration is that of how ones ability to access justice could be improved. Accordingly, the access to justice could be improved by the availability of funding and the length of time that it takes to process the forms that grant funding. This could be achieved by releasing funding from central Government and could be accessed by the simplification of the legal aid forms.

In conclusion, Jane can apply under the Family Law Act to have staying rights to the matrimonial home and for a non-molestation order preventing Tarzan from hitting her. In terms of financial contributions, Jane can apply under the Domestic Proceedings and Magistrates Courts Act of 1978 or section 27 of the Matrimonial Causes Act of 1973. Equally, she can apply to the Child Support Agency for maintenance for the two children. In terms of the divorce, Jane can apply on the grounds that the marriage has irretrievable breakdown due to Tarzan’s unreasonable behaviour.

Bibliography

• Family Law, 1^st Edition, by Frances Burton, published by Cavendish Publishing Limited in 2003.

• Principles of Family Law, 17^th Edition, by Stephen M. Cretney, Judith M. Masson, and Rebecca Bailey-Harris, published by Sweet & Maxwell in 2003.

Footnotes

^[1] Under section 30 of the Family Law Act of 1996, a non-owning spouse has the right to occupy the matrimonial home.

^[2] Under section 2(1) (a) and Khan v Khan [1980] 1 WLR 355.

^[3] Under section 2(1) (b). However this can not be for more than £1000.

^[4] This includes incapacity benefit, a pension, or an allowance.

^[5] This includes income support or Jobseekers allowance which is income based.

^[6] As defined by section 55(1) of the Child Support Act of 1991.

^[7] Ash v Ash [1972] 1 All ER 582.