‘What this demonstrates is that there are dangers in seeking to promote family life or talk about family law unless we are clear what it is we mean by families. We need to be precise about the aspect of what aspect of the family law is seeking to promote, or which group of people is intended to be covered by that particular law. Indeed, it may be that some parts of family law will apply to some families and not to others. It is not that some groups are family and some are not, but some family groups may need the benefits of a particular law and others not. The search for one perfect definition is likely to be doomed, but what we can strive for is the definition of ‘family’ best suited to the particular circumstances’.
J Herring, R,Probert, S Gilmore, Great Debates in Family Law (Palgrave 2nd ed 2015) at page 11.
In the light of the above statement and having regard to leading cases, critically analyse how and why the state seeks to regulate family life.
1000 words 25% weighting for this assessment
Liza and Juan married in 1998 and separated in 2020.
They have 2 children, a girl born in 2005 and a boy born in 2008
Liza is 50 and Juan is 48. They met in 1995 when they were both in their first year of University as mature students.
Liza is a College Lecturer and teaches child care 25 hours per week. She earns a net income of £20,000 per year. She has not worked full time since she gave birth to her first child but has been increasing her hours as the children became older, she has only been in her current position a few months. Prior to that she was earning half what she is now.
Juan is an accountant in a successful practice. He has been a partner in the firm for some years now and his net income is £100,000 per year. Juan has to work extremely long hours to generate this income and as such, Liza has always been the primary carer.
The couple’s primary asset is their home, a 4 bedroomed cottage in the Yorkshire dales. It is worth £500,000 and the mortgage is very nearly paid off.
The couple have various savings and investments of around £50,000, which is earmarked for the children’s education and to help them get started in life.
Neither party has much pension provision, each having about £50,000 in private schemes. Liza has a small pension with the Local education Authority but as she has only been there a few years, as present, it will only top up her state pension in retirement. It will however be much better should she stay with her employer until retirement.
However, on his retirement, Juan will be able to sell his interest in the accountancy firm he is a partner in. The parties were relying on this to fund their retirement. It is not known exactly what Juan’s shares are worth, but the last partner to retire sold his interest to the other partners for £350,000. This is the figure the couple had been contemplating. They had both intended to retire early – in 5 or 6 years or so when the youngest child left full time education or went to university. They planned on selling the house and buying something about half the value. Together with the money from the sale of Juan’s partnership (hope to be £350,000) and their pension funds (£100,000) they would have £700,000 plus whatever they could save over the next few years They mortgage, which they had been over paying, will be paid off soon and that alone with save them £2,000 per month. The couple had also agreed that if they are careful, they should be able to save all of Liza’s income. All in all they were hoping to save £150-200,000 over the next 5 years. They anticipated a long and happy retirement.
Liza and Juan are both devastated that their marriage has come to an end, but they accept that they have become like brother and sister, not man and wife and have agreed that they should both move on whilst they are still young enough. However, their separation is going to play havoc with their retirement plans.
Liza and Juan come to see you for advice. They don’t want to fall out about money, and they seek the opinion of a family lawyer as to what a court would do if it had to decide their case.
They both agree that Liza will remain primary carer for the children and will begin to work full time in the next 2 or 3 years, but that depends on whether she can find a full time post, which is uncertain.
Liza is insistent that the parties retire in 5 years or so as planned, but Juan is equally insistent that this will no longer be possible. They will each need to buy a home now and it is unlikely that they will be able to save what they had hoped.
Liza suggests that Juan should pay her maintenance until he retires, whenever that might be and then he should give her one half of whatever he sells his partnership shares for.
Juan says that he is happy to support Liza until their joint retirements but that he does not see why he should share whatever he receives from the sale of the partnership 50:50, especially if he is going to continue working in it for the next 10 years or so. But he does acknowledge that she should get something.
Finally, they have agreed that Juan will move out of the family home and rent a flat in the nearby town of Skipdale, where his office is. They are going to delay the sale of the house until their daughter goes to university in September 2023 and that for the next 2 years or so, Juan will pay child maintenance at £1300per month, which is the Child Maintenance Service rate for 2 children for someone on Juan’s income. Juan will also meet the mortgage payments until the mortgage is paid off. They have agreed that the £50,000 will be reserved for the children as intended.
By reference to statutory material and key case law, advise Liza and Juan as to what powers the Family Court has on divorce and how it might exercise those powers. Do not attempt to arrive at a precise answer.
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