FAMILY LAW

MARRIAGE
Marriage is the legal union of a couple as husband and wife (or husband and husband or wife
and wife). It is the voluntary union for life of one man and one woman to the exclusion of all
others.
• The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2)
mutual consent or agreement, and (3) an actual contracting in the form prescribed by law.
Marriage has important consequences in many areas of the law, such as torts, criminal law,
evidence, debtor–creditor relations, property, and contracts.
Marriage could be regarded as either a status or contract.
-It is considered a STATUS when it is regarded as a relationship that has legal
consequences arising automatically from the relationship, regardless the intention of the parties.
-From the CONTRACTUAL approach, the legal consequence of a marriage flow from
the intentions of the parties as set out in an agreement rather than any given rules set down by
the law. Under English law, marriage is understood as a contract; in the sense that the parties
must agree to enter into it and they are bound by its legal consequences. But it is also a status,
the parties are not entirely free to determine all its legal consequences and the marriage has
legal consequences for other people and for the state. Thus, marriage is best understood as a
contract that leads to acquiring a status, because spouses-to-be agree to enter into marriage.
The legal consequences of marriage then, flow from the intention of the parties as set out in the
agreement rather than any given rules set down by law. However, there are some legal
consequences which flow automatically from marriage –set by statute, which may lead to
considering marriage a status– and other consequences which depend on the agreement of the
parties. There are certain requirements to fulfil in order to get married, which are limits imposed
by law.
Engagement and prenuptial agreements
Engagement is the promise to get married, usually prior to marriage.
Before marriage, couples can enter into an engagement, where the parties agree to marry one
another. In the past under common law, such agreements were seen as enforceable contracts,
so if one party broke the engagement, the other could sue for breach of promise and recover
damages. Such action was abolished by the Law Reform Act 1970, which stated that no
agreement to marry is an enforceable contract. Engagements still have a legal significance in
respect of:
-Property of engaged couples: the only legal consequence that subsists is that of property
acquired to be used during marriage. In such case, the court will order the sale of the property

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and the money will be divided between the two fiancées. If someone improves a house he or
she acquires an interest in it.
-Gifts between engaged couples: the property shall be returned if it was gifted with the implied
condition that the gift should be returned if the marriage did not take place.
-The gift of an engagement ring is supposed to be an absolute gift and therefore can be kept
by the recipient. This presumption can be rebutted if it can be shown that there was a condition
that the ring should be returned if the marriage did not take place, for example if it was a family
ring. When the ring belongs to the family of the man, it has to be returned.
Domestic violence: engaged couples are associated people and can apply for a non-molestation
order against one another.
A prenuptial agreement is an agreement made before marriage usually to resolve issues of
support and property division if the marriage ends in divorce or by the death of a spouse. A
postnuptial agreement is an agreement entered into during marriage to define each spouse's
property rights in the event of death or divorce. The purpose of antenuptial agreements is to
protect the spouses-to-be property and children from a previous marriage in case of divorce by
stating clearly who owns what. Both financial and non-financial information can be included.
The traditional position is that pre-marriage contracts carry little weight in the court’s
consideration of an application because it is the court’s job to determine how property is
distributed on divorce, and the parties cannot rob the court on its jurisdiction. It used to be said
that pre-marriage contracts were against public policy as they require people to enter into
marriage while contemplating its breakdown.
But the current approach of the court is different. The Supreme Court states that court should
give effect to a nuptial agreement if it was entered freely by each party with a full appreciation of
its implications. The agreement would only be enforceable if it was fair. An agreement which
fails to take into account the needs of the children, that failed to meet the needs of the spouses
or that failed to compensate for the losses caused by the marriage would not be covered.

Prenuptial/premarital contracts/agreements are not still validated by an act or by law, so it is a

question within the discretion of the courts. So, the courts have to validate prenuptial
agreements, but also, other requirements have to be met:
- fairness in the eyes of the judge (free consent, no duress, threats, etc.)
- parties have to be informed of the consequences of signing a contract

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- parties have to disclose completely the properties owned by each of them; if a party do
not disclose all of their property, then the other party can challenge the content of the
agreement.
However, even where all conditions are fulfilled, there may be a situation by which the contract
is still not considered valid. That is the case of unforeseeable events that change the fairness of
the contract, so the contract is no longer valid, for instance, an economic crisis. Nonetheless,
courts have the power to alter the terms of the contract even though the contract is valid.
Prenuptial contracts can only refer to the distribution of the property belonging to the parties and
to the support a party must pay to the other in case of divorce; they can never limit or establish
a certain amount of child support.
Validity of Marriage
Matrimonial Causes Act 1973 governs marriage and establishes the requirements that have to
be met for a marriage to be considered valid.
 Presumption of marriage
If a man and a woman live together, believe themselves to be married, and present themselves
as married, the law presumes that they are legally married. Anyone who seeks to claim that the
couple is not married must introduce evidence to rebut this presumption. It can be rebutted if it
can be shown that the parties did not undergo a legal marriage; clean and positive evidence
must be introduced. However, the longer the parties have cohabited, the stronger the
presumption is that they are legally married. The law states there is a presumption that couples
who live together have undergone a ceremony of marriage unless proved otherwise.
There is power under the Family Law Act 1986 for a court to make a declaration clarifying the
status of a marriage.
A marriage can be:
o A valid marriage
o A voidable marriage
o A void marriage
o A non-marriage (a ceremony of no legal significance)
Difference between divorce and nullity
o Annulment / Voidability / Nullity: the law recognizes that there is a flaw in the
establishment of the marriage, rendering it ineffective. As there are problems arising at
the moment of celebrating the marriage, there is no need for the parties to bring the
action to annul the void marriage. However, they are advised to bring an action to obtain
the decree of annulment. The purpose is to have a proof of the voidability of the

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marriage. Any third party can request the voidability of a marriage, since there is a
question of public policy.
o Divorce: the creation of marriage is considered proper but subsequent events
demonstrate that the marriage should be brought to an end. There are problems arising
throughout the marriage.
 Non-marriage
The ceremony that the parties undertook was nothing like a marriage and so is of no legal
consequence. Then, the court has no power to redistribute property and the couple will be
treated as an unmarried couple. In a precedent, factors indicating whether marriage is a non-
marriage or not was listed:
a) Whether the ceremony purported to be a lawful marriage
b) Whether it bore all the hallmarks of marriage
c) Whether the couple and the officiating official believed, intended and understood the
ceremony as giving rise to the status of lawful marriage
d) The reasonable perceptions, understandings and belief of those in attendance
A void marriage is one where, although there may have been some semblance of a marriage,
there is in fact a fundamental flaw in the marriage which means that it is not recognised in the
law as valid. This needs to be distinguished from a non-marriage, where the ceremony that the
parties undertook was nothing like a marriage and so is of no legal consequence. It is a nothing
in the eyes of the law. The distinction is of great practical significance because if it is a void
marriage then the court has the power to make financial orders, redistributing property between
the couple. If the ceremony is a non-marriage the court has no power to redistribute property
and the couple will be treated as an unmarried couple.
 Void marriage
A void marriage is one that in the eyes of the law has never existed. A void marriage is one
where, although there may have been some semblance of a marriage, there is in fact a
fundamental flaw in the marriage which means that it is not recognised in the law as valid. A
void marriage is one that in the eyes of the law has never existed. It differs from a VOIDABLE
marriage because the latter exists until it has been annulled by the courts and, if it is never
annulled by a court order, it will be treated as valid. This distinction has a number of significant
consequences:
1. Technically, a void marriage is void even if it has never been declared to be so by a
court, whereas a voidable marriage is valid from the date of the marriage until the court makes
an order.

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2. A child born to parties of a void marriage would be technically ‘illegitimate’, unless at

the time of the conception either parent reasonably believed that they were validly married to
the other parent.
3. It is also important in determining one person’s rights to the other’s pension.
4. Any person may seek a declaration that the marriage is void, but only the parties to
the marriage can apply to annul a voidable marriage. The grounds on which a marriage may be
declared void are those circumstances in which there is an element of public policy against the
marriage. The grounds on which a marriage may be voidable do not indicate that there is a
public policy objection to the marriage, but rather that there is a problem in the marriage which
is so significant that, if one of the parties wishes, the marriage can be annulled.
→ there has been a problem of public policy; a question of public policy involved; a serious
disregard of some requirement and as a consequence, the marriage is considered as if it has
never existed.
→ no legal consequences: the parties will be considered as single again.
→ the questions of public policy are present at the moment of the celebration of the marriage.
Grounds on which a marriage is void: these grounds reflect a public policy objection to the
marriage. They are set out in the MCA 1973 (Marriage Causes Act). A marriage is void when:
1. Prohibited degrees: In Britain the restrictions are based on two groups of relations: those
based on blood relationships (consanguinity) and those based on marriage (affinity).
a) The prohibited consanguinity restrictions mean that marriage between the
following is not permitted: parent–child; grandparent–grandchild; brother–sister;
uncle–niece; aunt–nephew. These include relations of the half-blood as well as
those relationships based on the whole blood. It will be noted that cousins may
marry under English law.
b) The affinity restrictions are traditionally based on the ‘unity of husband and wife’.
This is the notion that, on marriage, a husband and wife become one. A step-
parent can marry the child of a former spouse if: (i) both parties are aged 21 or
over; and (ii) the younger party has not been a child of the family in relation to the
other while under the age of 18. The effect of the law is that if a step-parent acts
in a parental role towards a stepchild, the two can never marry.
c) Even though adoption normally ends the relationship between the adopted child
and his or her birth family, the restrictions on marriage between an adopted child
and members of his or her birth family apply as above. An adoptive child and

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adoptive parent are also within the prohibited degrees of relationship. However,
an adopted child can marry other relations that arise from the adoption.
2. Age: There are two requirements that relate to the age of the parties: a marriage will be void if
either party to the marriage is under 16; but, if either party is between the age of 16 and 18 then
it is necessary to have the written consent of each parent with parental responsibility
(responsabilidad parental; ex patria potestad). The significance of this requirement, then, is that
it permits a registrar to refuse to carry out a wedding without this consent. If the parties cannot
get the consent, they can obtain it from the court (leave of the court). If they get married with
no consent, the marriage will be valid but there is a monetary penalty. A leave of the court is a
permission granted by the court; a judicial permission to follow a non-routine procedure.
3. Formalities:
The parties have intermarried in disregard of certain requirements as to the formation of
marriage. A marriage is void for breaching the formalities only if the parties marry knowingly and
wilfully in breach of the requirement. A couple who intend to marry will be asked by the registrar
or vicar to present different documents. There are two possible marriages under English law:
- Under the rites of the Church of England: vicars are licensed to conduct weddings
themselves. There are three ways to complying with formalities: banns, common license or
special license. Banns of matrimony intend the community to know who is getting married,
so the names of the couple are read during three Sundays so that everyone knows and can
object the marriage. Under the rites of the Church of England a license is required. The
license is issued by a bishop and its period is usually 21 days; however, in cases of
urgency, a special license may be issued by the Archbishop of Canterbury –he is the only
one who can grant a special licence. The special license allows the spouses-to-be to marry
earlier and have the marriage in a different place. In both cases –common and special
licenses– its validity is three months.
- Civil marriage: unless the marriage is to be by Church of England ceremony, it can take
place only if a Superintendent Registrar’s certificate has been issued. The certificate can
be issued without license (it allows the marriage to take place 21 days after the notice was
given to the registrars) or with license (it allows the marriage to take place one day after the
notice was given or in a non-registered place –a place that is no proper venue.)
There are only certain specified locations in which a valid marriage can take place in England
and Wales: a District Register Office, a church or chapel of the Church of England or the Church
of Wales, an approved building, and a naval, military or air force chapel.

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4. Bigamy: If at the time of the ceremony either party is already married to someone else, the
‘marriage’ will be void and the parties would be committing the crime of bigamy. The marriage
will remain void even if the first spouse dies during the second ‘marriage’. So, if a person is
married and wishes to marry someone else, he or she must obtain a decree of divorce or wait
until the death of his or her spouse. If the first marriage is void it is technically not necessary to
obtain a court order to that effect before marrying again, but that is normally sought to avoid any
uncertainty. In cases of divorce or death of one of the spouses, proof of the dissolution of the
previous marriage has to be presented:
- Divorce decree
- Death certificate
- Annulment decree
- Dissolution decree, in cases of civil partnerships.
All decrees have to be absolute.
5. Same-sex marriage: A marriage used to be void if the parties were not respectively male and
female in a biological sense. This ground applied until 2014, when same-sex marriage was
allowed. Before 2014, civil partnerships were the resource for same-sex couples who wanted to
have a ceremony with legal effects.
6. In case o f a polygamous marriage entered into outside England and Wales, that either party
was at the time of the marriage domiciled in England and Wales.
 Voidable marriage
A voidable marriage is marriage that is initially invalid but that remains in effect unless
terminated by court order. A voidable marriage is valid from the date of the marriage until the
court makes an order. The legal imperfection in such a marriage can be inquired into only during
the lives of both spouses, in a proceeding to obtain a judgment declaring it void.
A voidable marriage exists until it has been annulled by the courts and if it is never annulled by
a court order it will be treated as valid –the marriage will be sanctioned (confirmed) if the
spouses live together without bringing any action for voidability. A voidable marriage can be
ratified once the impediment to a legal marriage has been removed or if the spouses continue
with the marriage –there is a three-year limit to bring the marriage to annulment; i.e. the period
to bring the action is of three years as from the marriage.
Only the parties to the marriage can apply to annul a voidable marriage. The grounds on which
a marriage may be voidable do not indicate that there is a public policy objection to the
marriage, but rather that there is a problem in the marriage which is so significant that, if one of
the parties wishes, the marriage can be annulled.

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Voidable marriages are valid but the parties are entitled to bring an action for voidability, and
once the decree of nullity is issued, the marriage will be considered invalid as from that moment.
If the parties decide not to bring an action, then the marriage will be deemed valid. Only the
parties can bring the action for nullity.
→ the marriage is considered valid until the court issues an order establishing the annulment.
Grounds on which a marriage is voidable: How can consent be vitiated?
A. Lack of consummation / Non-consummation: In order for a marriage to be consummated
there need only be one act of consummation; but the act must take place after the
solemnisation of the marriage. There are two grounds of voidability connected to
consummation. The first ground is a wilful refusal by a spouse to consummate the
marriage, and the second is the incapacity of either party to consummate the marriage.
The applicant for the nullity application can rely on his or her own inability to consummate but
not on his or her own wilful refusal. ‘Consummation’ is defined as an act of sexual intercourse.
‘Inability to consummate’ means that the inability cannot be cured by surgery and is permanent.
Inability can be either physiological or psychological. Nullity applies when defects exist at the
time of marriage, while divorce is used when defects occur after the time of the marriage itself.
Inability can occur at any time before or during the marriage as long as the union has not yet
been consummated. ‘Wilful refusal to consummate’ requires a ‘settled and definite decision not
to consummate without wilful excuse’. ‘Wilful refusal’ may also occur where the parties have
agreed only to have intercourse under certain circumstances. The marriage will not be annulled
on the ground of wilful refusal if the lack of consummation is due to a just excuse.
B. Lack of consent: Consent: a person’s consent at the moment of the marriage may be
vitiated; the consent was not validly given. In such case, the person has the possibility of annul
the marriage or of confirm the marriage.
The Matrimonial Causes Act recognises four circumstances which may cause a person to be
unable to give consent so as to render a marriage voidable. These are ‘duress, mistake,
unsoundness of mind or otherwise’. It is not a formal requirement. It should be noted that lack of
consent renders a marriage voidable rather than void. This means that if a party does not
consent to the marriage but later changes his or her mind and is happy with the marriage, the
marriage will be valid and there is no need to remarry.
- Duress: If it could be shown that someone was compelled to enter a marriage as a result
of fear or threats, the marriage may be voidable due to duress. The threats can be of
any kind (verbal, physical, psychological), but it must be shown that ‘the threats,
pressure or whatever it is, is such as to destroy the reality of the consent and overbear

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the will of the individual’. What is at issue is the legitimacy of the threat rather than the
lack of consent. When someone is acting under duress it is not that they do not make a
choice but rather that the choice is made in circumstances in which it should not lead to
legal effect. Duress could not be relied upon unless the fear was reasonably held; as
long as the beliefs of threats were honestly held, duress could be relied upon. The threat
can emanate from a third party; it need not emanate from the spouse.
The forced party has two options, to continue with the marriage or to seek the voidability.
The action for voidability has to be brought within 3 years from the celebration; after that
period elapsed, the parties can only apply for divorce. If the parties do not bring any
action, then it is considered that the marriage has been ratified.
Courts have wide discretion (they are free to decide whether duress took place or not)
and will analyze the case to find duress; they will pay attention to the impact and effect
of the threat on the person / “victim”, rather than to the threat itself.
- Mistake: A mistake can also negate consent. So far the law has only allowed two kinds
of mistake to negate consent. The first is a mistake as to the other party’s identity. It
must be a mistake as to identity rather than a mistake as to attribute. A marriage would
be voidable if a party to the marriage thought the person they were marrying was
someone else (e.g. if there was a case of impersonation). The second kind of mistake
that will make a marriage voidable is when there is a mistake as to the nature of the
ceremony. So, if one party believes the ceremony is one of engagement, say, then this
can invalidate the marriage. However, a mistake as to the legal effects of marriage is
insufficient.
- Unsoundness of mind: If a person lacks the capacity to marry, no one else can consent
on their behalf. A mental disorder is involved. Unsoundness will only lead to a marriage
being voidable if it exists at the time of the marriage. So a marriage will not be void if
someone becomes mentally ill after the marriage. There is a presumption that people
are of sound mind, and so the burden of proof lies on the person seeking to have the
marriage annulled.
- Otherwise: The statute refers to a lack of consent through factors other than duress or
mistake. These include drunkenness and fraud and misrepresentation when it leads to a
mistake.
C. Mental disorder: A marriage is also voidable if either party is suffering from a mental disorder
at the time of the marriage to such an extent that they are unfit for marriage: that is, ‘incapable
of carrying out the ordinary duties and obligations of marriage’. The mental disorder ground

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covers those who are able to understand the nature of a marriage but are unable to perform the
duties of marriage due to a mental illness. There is nothing to stop those with mental illnesses,
even extreme ones, from marrying, the one exception being where the court finds a public policy
objection to the marriage.
Only the spouses can seek the decree of annulment, no third person can bring the action in
their representation / behalf.
D. Venereal disease and pregnancy: If the respondent is suffering from a venereal disease in a
communicable form at the time of the ceremony or if the respondent was pregnant by someone
else other than the petitioner, the marriage is voidable. The woman has to be pregnant at the
moment of the celebration by other person than the groom.
The woman may raise a defense and say that the man knew about the pregnancy and he led
her to believe that he was not going to take action against the marriage.
E. Sham marriages: when the couple goes through a marriage purely for the purpose of
pretending to be married even though they have never intended to live together as husband and
wife. The marriage will be valid but it may not be sufficient for the purposes of immigration rules.
Bars to relief in voidable marriages
A bar is a barrier to a legal action or claim; there are some circumstances that prevent the
petitioner from seeking to annul a voidable marriage.
 Approbation: it is seen as contrary to public policy and unjust to allow a person to seek
to annul the marriage after leading the other party to believe he or she would not
challenge the marriage.
 Time: a decree of nullity will normally not succeed unless brought within three years of
the date of the marriage because parties need a degree of security in their marriage.
The exception being a petition based on impotence.
 Estoppel: estoppel is a bar that prevents one from asserting a claim or right that
contradicts what one has said or done before or what has been legally established as
true. There are two kinds of estoppel that might be relevant. The first is estoppel by
conduct where one party so conducts himself or herself that it would be unjust for him or
her to deny the facts that he or she has led the other to believe as true. The other kind of
estoppel is estoppel per rem judicatam, meaning that a party cannot seek to overturn a
court’s decision.
Effects of a decree of nullity

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In respect of a voidable marriage, the decree of nullity shall operate to annul the marriage only
as respects any time after the decree has been made absolute, and the marriage shall,
notwithstanding the decree, be treated as if it had existed up to that time.
SAME-SEX MARRIAGE
United States
Same-sex marriage is legal in all the states and in the District of Columbia as of 2015 as a
consequence of a ruling. In June 2015, the US Supreme Court ruled that bans on same-sex
marriage are a violation of the 14th Amendment to the US Constitution.
Amendment XIV
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
In a 5-4 decision, the US Supreme Court ruled that the amendment obliges states to license
marriages between people of the same sex and to recognize marriages lawfully performed
outside the state. Therefore, all states with no legislation on gay marriage will have to follow it.
They believed the amendment was being violated by those states where same-sex marriage
was illegal.
Before June 2015, the federal government only respected marriages between a man and a
woman. This meant that even if a same-sex couple’s marriage was recognized by their home
state, it was not recognized for purposes of accessing marriage benefits under federal law.
Same-sex marriage did not exist as federal marriage; federal people could get married in one
state but could not move to another state where gay marriage was not recognized. Besides,
they were not given the federal rights of marriage.
The process to achieve legalization of gay marriage in the US was very long. In 1993 Hawaii is
the first state which takes steps towards the legalization of gay marriages through a ruling. In
1996 the federal government redefines marriage under the DOMA so as to defend heterosexual
marriage.
DOMA (Defense of Marriage Act) defined the concept of marriage for federal purposes as “the
legal union between a man and a woman as husband and wife”. It protected states from having
to recognize same-sex marriages that might be sanctioned by other states. States willing to

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legalize same-sex marriage had the right to do so, and the attitude of the federal government
towards the subject remained the same. Nowadays, it is unconstitutional.
In 2004 Massachusetts is the first state that legalizes same-sex marriage. As a consequence of
this, the FMA is proposed. The FMA (Federal Marriage Amendment –Hate Amendment)
intended to prevent individual states from recognizing same-sex unions by attempting to amend
the United States Constitution to define marriage as a union between a man and a woman but it
failed. It ensured that judicial decisions rendered by the courts in one state are recognized and
honoured in every other state.
In 2013, the US Supreme Court found key provisions of DOMA unconstitutional and required
the federal government to treat legally married same-sex couples on an equal basis with
heterosexual married couples. Consequently married gay couples living in states that allow
same-sex marriage became entitled to the same federal benefits and protections extended to
married heterosexual couples.
CIVIL UNIONS
A civil union is a category of law that was created to extend rights to same-sex couples; these
rights are recognized only in the state where the couple resides. It is a legally recognized form
of partnership similar to marriage and the aim is to provide legal recognition of relationships
formed by unmarried same-sex couples and to afford them rights, benefits and responsibilities
similar to those of legally married couples. It provides legal protection to couples at state law
level but omits federal protections. Each state’s definition of a civil union may vary. Civil unions
were the first type of legal recognition given to gay people in 2000 when the state of Vermont
created them.
DOMESTIC PARTNERSHIPS
A domestic partnership is a legal or personal relationship between two individuals who live
together and share a common domestic life but who are neither joined by marriage nor by civil
unions. It deals with the rights of unmarried adults who choose to live together in the same
manner as a married couple but who are not married. It is a status that may be available to
same-sex couples and, sometimes, opposite-sex couples. Domestic partners may enter into
domestic partnerships agreements in order to agree contractually to issues involving property
ownership, support obligations, etc.
England & Wales
Same-sex marriage is legal in England, Wales and Scotland as of 2014, and in the Republic of
Ireland, as of November 2015. Before legislation allowing same-sex marriage was passed,

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same-sex couples were allowed to enter into civil partnerships, a separate union which provides
same-sex couples with rights and responsibilities similar to civil marriage.
The concept of adultery is not changed and no-consummation of the marriage is not a ground to
annulment.
CIVIL PARTNERSHIP
It is a relationship between two people of the same sex, formed when they register as civil
partners of each other. It is formed once both individuals have signed the civil partnership
document in the presence of a registrar and two witnesses. The partners must be of the same
sex. It shares marriage requirements. In order to request the dissolution of the civil partnership,
it must have lasted at least one-year long; and it can end by death, dissolution or annulment.
Scotland
In 2011 the Scottish government announced it was interested in legalizing gay marriage. In
2012 the contents of the resolution were established. In 2013 the Marriage and Civil
Partnerships Bill was introduced to the Parliament and was given priority (it was fast-tracked).
Finally, in 2014, the Marriage and Civil Partnerships Act was sanctioned.
Ireland
The Constitution was amended (by amendment 22nd) so as to redefine the concept of
marriage. Civil partnerships are no longer available (unlike England, Scotland and Wales) and
gay people can adopt children.
Argentina
It was the first country in Latin America to legalize gay marriage. Ley de Matrimonio Igualitario
was sanctioned in 2010. Once a gay couple gets married they have the same rights as
heterosexual married people; they are treated equally. Before the sanction of this Act, same-sex
and heterosexual couples could enter into uniones convivenciales as of 2002, but it was only
allowed in certain cities and it had different requirements (the minimum age was 21 and the
parties must have lived together for at least one year).
EFFECTS OF MARRIAGE
(1) Marital consortium
Spouses are expected to live together, help each other and be monogamous. Consortium is
defined as the sharing of a common home and a common domestic life, and the right to enjoy
each other’s society, comfort and assistance.
(2) Inheritance / Succession rights
Where a person dies without having made a will, the person is intestate. In such case, the
deceased’s spouse will be entitled to some or all of the estate of an intestate person.

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(3) Contracts
Spouses can enter into contracts with each other, but will have to show that there is intent to
create legal relations –there is a presumption that spouses do not intend to be legally bound by
agreements; this rule does not apply to separated spouses. A married couple cannot enter an
enforceable contract which excludes the jurisdiction of the divorce court.
Nowadays, spouses can enter into contracts with each other. For that contract to be valid, there
has to be a legal relationship, and spouses have to show a clear intention to enforce that
contract. Contracts involving the limitation of the rights of the parties in case of divorce, or the
amount of maintenance of the children are not valid because the parties would be interfering
with the rights of the courts.
(4) Criminal Law
In the past, spouses could not be held guilty for raping their wives, or for treating them with
violence. Nowadays both acts are considered offenses.
- Coercion: with exception of murder and treason, a wife can allege that her husband
threatened her or forced her to commit an offense. In the past, husbands were
responsible for the acts of their wives, so they would be gathered liable instead of them.
- Evidence: in civil proceedings a spouse is both a compellable and a competent witness.
In criminal proceedings generally the spouse or civil partner is only a competent witness.
In other words, if a spouse is willing to give evidence against his or her spouse he or she
may do so, but will not be forced to. The exceptions are that if the spouses are jointly
charged for an offence, then neither is competent to give evidence for the prosecution.
- Confidence: communication between spouses is subject to special protection so that a
spouse who discloses confidential information about the other can be found in breach of
confidence. The law also covers cohabitants. Whatever is said in the marital home is
considered confident and if a spouse discloses such information without the permission
of the other, it may be held liable for breach of confidence. A breach of confidence may
take place when a spouse gives testimony due to a civil or criminal proceeding against
the other spouse. To avoid breaching confidence, the spouse called to appear in court
may allege marital confidence.
(5) Citizenship
A foreign person who marries a British person will not become a British citizen. However, it is
easier to acquire the citizenship, there are fewer requirements.
(6) Taxation / Tax benefits

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There are special exemptions from tax that apply to married couples. The most important are in
respect of inheritance tax.
(7) Torts
Either spouse can sue the other for torts or crimes.
(8) Children
As regards children, parents share parental responsibility if they are married. If parents are not
married, the mother acquires parental responsibility automatically after the birth; the father has
parental responsibility if his name is registered in the birth certificate. Another way for the
unmarried father to gain parental responsibility is for him to initiate a proceeding before court to
obtain a parental responsibility order. Usually, the father will file a filiation suit to be
acknowledged as the father, and together with that, the court will issue a parental responsibility
order, or not. Also, he can obtain parental responsibility by agreement with the mother; such
agreement is subject to the court’s approval.
Illegitimate children (those born outside marriage), did not have the same rights as legitimate
children, but nowadays, they share almost the same rights. An illegitimate child can become a
legitimate child if their parents get married, since 1976. The law speaks of legitimated children
are legitimate children who acquire the state of legitimate ones through the marriage of the
parents. There are differences that remain regarding legitimate and illegitimate children:
- Inheritance rights: if the child is not acknowledged, then he/she will not be able to inherit.
- Title of honor: they can only be inherited by legitimate children (not even legitimated
children)
- Right of citizenship: it is transferred through the mother. If the parents are unmarried and
the mother is not British, then the child won’t be a British citizen either.
(9) Property
a) Matrimonial Regime
It is also called deferred community property; it means that both parties own the totality of the
property in equal and undivided shares. The clear division of property will take place upon
divorce.
b) Ownership
There are a number of reasons why it can be important to know who owns a certain piece in
property:
-If a couple is unmarried is crucial to know who owns what because the courts have no power to
redistribute property if the relationship breaks down.

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-If someone becomes bankrupt, all of their property falls into the hands of the trustee in
bankruptcy. The property of their partner or spouse does not.
-If a third party wishes to purchase property is important to know who the owner is so that he or
she may sign the appropriate paperwork.
-On the death of a family member
-Ownership of family property has important symbolic power
Law should pursue three particular aims: 1) Produce a high degree of certainty as possible; 2)
reflect the wishes and expectations of the couples; 3) law should be practical and easy to apply.
Approaches the law could take:
 Sole ownership: one spouse owns all the family property.
 Community property: on marriage or cohabitation all property becomes jointly owned.
 Community of gains: each party owns the property they owned before the marriage, but
property acquired afterwards will be jointly owned.
 Community of common property: all items intended for jointly use will be jointly owned.
 Purchaser-based ownership: the person who buys a piece of property owns it.
 Intention-based ownership: ownership will be determined by the intention of the parties.
The law can be summarized as follows:
1) Income belongs to the person who earns it. What a spouse earns is theirs; it is not included
within the marital property. Each spouse is responsible for his or her own debts. (EARNINGS)
2) Prima facie, personal property belongs to the person who bought it, but this presumption
can be rebutted. The basic rule is that the person who uses the money to buy a certain piece of
property owns such personal property. This is not a fixed rule, for example if a spouse uses
his/her money to buy something for the other spouse as a gift, then such gift belongs to the
spouse. (MONEY, MOVABLE THINGS)
3) Ownership can be transferred from one person to the other if there is effective delivery of the
property,
4) Marriage, engagement or cohabitation does not change ownership of property.
5) Separate Property: what is owned to each spouse in particular because of inheritance, or
because the property was owned by one party before the marriage. (BIENES PROPIOS)
Jointly owned bank accounts: Bank accounts are considered marital property if they are open to
both spouses, which means that they belong to both spouses in equal shares. Such accounts
are called joint accounts. An account may be considered marital property although it is in name
of only one of the spouses, if it is proven that the other spouse can also withdraw money from it,
or when the account is used to pay common expenses (common purse/pool). It does not matter

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who deposits more money or if only one of the spouses deposits money, as long as both
spouses can withdraw money and it is proven the intention of the spouse of sharing the
account. Courts focus on the intention of the parties, even if it was in only one person’s name
the court will examine whether in fact the fund was used jointly.
Housekeeping expenses and maintenance allowance: if there is a question as to the right of a
spouse to money derived from any allowance made for the expenses of the matrimonial home
or similar, the money or property shall be treated as belonging to them both in equal shares,
except agreement to the contrary. They are shared by the spouses, no matter who provides
more for the expenses.
Gifts from one partner to the other: ownership passes from one to the other.
Gifts to partners from third parties: ownership of the gift depends on the donor’s intention, which
can be inferred from the surrounding circumstances.
Improvements to personal property: if a spouse does work that improves a piece of property, he
or she can establish an interest in that property.
c) Real property
The marital home and other title deed that contains the name of both spouses are considered
marital property.
English and Welsh law does not have a special regime for dealing with family homes.
Legal ownership: it can be determined by discovering who is registered as the owner of the
land.
Equitable ownership: In equity the legal owner of a property may be found to hold the property
on trust for someone else, who will have an equitable interest in the property. A trust may be
express or implied.
-Express trust: a declaration of trust in respect of land must be manifested and proved in
writing. A trust deed sets out the shares of the parties in equity.
-Implied trust:
d) Maintenance during marriage
In the past, only the husband had the obligation to maintain the wife and the children.
Nowadays, both spouses have the duty to maintain the other and the children.
 Unmarried cohabitants: there is no obligation on one unmarried cohabitant to support the
other. But there is an obligation on a parent to provide for his or her child regardless of
whether the parents are married or not.
 Married couples: There are two sources of maintenance liability for spouses: from
statutes and from separation agreements.

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- Statutory obligations to maintain: although there are means of enforcing and

obligation to pay, in practice these sums are rarely collected.
- Separation agreements: these agreements were common for couples who could
not divorce. Nowadays they are often used by couples to deal with their financial
affairs while the final financial orders are made.
e) Spouses’ Right of Occupation
Those rights enjoyed by both spouses in the matrimonial home, which does not need to be in
the name of both spouses. If there is violence in the home, although the violent spouse is the
legal owner of the matrimonial home, he/she can be forced to leave the house (eviction), and
the other one, who has no legal right over the property but has the right of occupation, can be
entitled to remain in the property.
A person has a right to occupy a house if they have an interest in the property under an express
trust, resulting trust, constructive trust or proprietary estoppel.
Contractual licenses: is a contract under which the owner permits the licensee to occupy the
property.
Home rights: home rights are conferred in respect of a dwelling-house. A home right consists of:
a) In occupation, a right not to be evicted from the dwelling house by the other spouse except
with the leave of the court; and b) If not in occupation, a right with leave of the court to enter into
and occupy the dwelling house.
(10) Domestic violence
DOMESTIC VIOLENCE
Domestic violence is any incident of threatening behaviour, violence or abuse between adults
who are or have been intimate partners or family members, regardless of gender or sexuality.
Domestic violence is not restricted to people living together but includes violence between
family members. It is not restricted to physical attacks, but is widely drafted to include financial
and emotional abuse. It is not restricted to people living together, but includes violence between
family members.
There are three categories of explanations of the causes of domestic violence:
psychopathological explanations; theories about the position of women in society; and the family
relationship theory.
Orders under the FLA 1996
There are essentially two kinds of order available under the Family Law Act 1996. The victim of
domestic violence (the applicant) can seek a court order that the abuser (the respondent), first,
does not molest her and, secondly, that he leave and stay away from the family home. These

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are known as non-molestation orders and occupation orders respectively. Both are primarily
designed to deter the respondent from abusing the applicant in the future. If he does so in
breach of a non-molestation or occupation order, he could face imprisonment.
1- NON-MOLESTATION ORDER
The non-molestation order is an order that one party does not molest the other. Molestation
is not defined in the Act but includes conduct that harasses or threatens the applicant. Such an
order is less intrusive than an order forcing someone to leave his or her home and so is more
readily and widely available. Indeed, many acts that would constitute molestation are crimes.
Applicants: remedies should be limited to those who have an especial emotional tie.
‘Associated persons’ are defined in section 62(3) of the FLA 1996. A person is associated with
another person if:
1. They are or have been either civil partners or married to each other.
2. They are cohabitants or former cohabitants.
3. They have or have had an intimate personal relationship with each other which is or was of
significance duration.
4. They live or have lived in the same household, otherwise than merely by reason of one of
them being the other’s employee, tenant, lodger or boarder. In this case a sexual relationship is
not required.
5. They are relatives (if the petitioner is under 16 a leave or permission of the court is
necessary).
6. They have agreed to marry one another or enter a civil partnership. There are only three
ways to prove that there is an agreement to marry: evidence in writing of the agreement;
engagement ring; or ceremony entered into by the parties in the presence of one or more other
persons assembled for the purpose of witnessing the ceremony. A formerly engaged couple can
only apply if the agreement to marry was terminated less than three years previously.
7. In relation to any child, a parent of a child or someone who has parental responsibility for the
child. If the child has been adopted, natural parents or grandparents and the person with whom
a child has been placed for adoption (i.e. it covers both adoptive and biological family)
8. They are parties to the same family proceeding.
9. The court can make a non-molestation order on its own motion. This is appropriate when the
court considers a party or a child needs protection of the order but for some reason they are
unwilling to apply for it.
10. Public authorities can also bring the action.

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The court shall have regard of all the circumstances including the need to secure the health,
safety and well-being of the applicant or the person for whose benefit the order would be made
and of any relevant child. The court will focus on the need for protection in the future rather
than requiring proof of the fact or threat of violence in the past.
Enforcement of the orders: if there is a breach, it is the decision of the police to bring contempt
proceedings. If the order is breached by an act of violence then the respondent is likely to be
prosecuted.
The main difference with occupation orders is that no power of arrest can be attached to non-
molestation orders, because police cannot arrest the respondent if the/she breaches the order.
The police will have to initiate proceedings before court instead. In the past, the victim was the
one who had to bring proceedings before the court. Nowadays, the police bring the proceedings
for contempt before the court and it is for the court to decide whether to issue a warrant of
arrest. If also, by breaching the non-molestation order the respondent and commits a felony,
the police will also bring a proceeding for the offense committed.
Sometimes the police delay bringing the proceedings and warn the respondent instead, and in
other cases, the police acted promptly but the process takes time.
2- OCCUPATION ORDER
An occupation order can remove an abuser from the home and can give a right to the
victim to enter or remain in the home. Although the occupation order is most commonly used
in cases of domestic violence it can be applied for if there is no violence, but simply a dispute
over who should occupy the property. Where the order is that someone be removed from their
home, this is a severe infringement of the rights of the person who is removed from their home.
Applicants: It is only possible for an applicant to obtain an occupation order against a
respondent to whom she is associated. If the applicant is married to the respondent or is entitled
to occupy the property, he/she should use section 33 of the FLA 1996. However, if the applicant
is not entitled to occupy the property, or if he/she is the ex-spouse, section 35 is appropriate.
 Section 33, FLA 1996: Married and entitled applicants
The order can be obtained in respect of property that is a dwelling-house which was
intended to be the home of the applicant and the person to whom she/he is associated
(respondent). The order can be made against any person with whom she is associated and
with whom she shared a home. Factors to be taken into account:
In order to issue the order, the court will take into account if the significant or substantial
harm test is satisfied and will have to consider the consequences of the order. If it appears
to the court that the applicant or any relevant child (a child whose interests the court

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considers) is likely to suffer significant harm attributable to conduct of the respondent if an

order is not made, the court shall make the order unless it appears to it that the respondent
or any relevant child is likely to suffer significant harm if the order is made; and the harm
likely to be suffered by the respondent or child in that event is as great as, or greater than,
the harm attributable to conduct of the respondent which is likely to be suffered by the
applicant or child if the order is not made.
The court must first ask itself what will happen if the court makes no order: is it likely that the
applicant or relevant child will suffer significant harm attributable to the conduct of the
respondent? If the answer is ‘no’ then the significant harm test is not satisfied. If the answer
is ‘yes’ then the court must consider what will happen if the court does make an order: will
the respondent or any relevant child suffer significant harm? If the answer to that question is
‘no’ then the court must make an occupation order. If the answer is ‘yes’, then the question
is whose risk of harm is greater. If the harm the applicant or child will suffer is greater than
that which the respondent and any relevant child will suffer then an order must be made.
Otherwise the significant harm test is not satisfied.
It is applied for the issuance of these orders is the significant harm test.
The court has to determine the harm the applicant or the child may suffer if no order is
issued. In order to reach such determination, the courts consider:
- if the harm is attributable to the respondent
- if the harm is significant
- if the respondent would suffer a harm due to the issuance of the order, then whose harm
is greater (the applicant’s or the respondent’s)
If the courts decide not to issue an order in favour of the applicant, then in order to balance
the situation may be, for example, that the respondent that remains in the marital home has
to pay for the suitable accommodation of the other party, or provide financially for the other
party that had to leave the marital home.
In some cases, although the test is not satisfied, the court issued an order anyway, because
they have wide discretion. However, it is very difficult that this happen because these orders
restrict property rights.
General factors: If the significant harm test is satisfied, then the court must make the order:
if not, the court must consider the general factors:
-The housing needs and housing resources of each of the parties and the relevant child.
-Financial resources of the parties.
-The likely effect of an order on the health, safety and well-being of the parties and child.

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-The conduct of the parties in relation to each other.

Orders that can be made through the use of section 33 of the FLA 1996:
-An order declaring that a party has a right to remain in the property.
-An order to enforce the applicant’s entitlement to remain in the property.
-An order to require the respondent to permit the applicant to entre and remain in the
dwelling-house.
-Order to restrict the exercise by the respondent of their right to occupy the dwelling-house.
-Also orders can be made ordering either party to pay rent, household expenses, to maintain
and repair the home, or the party who remains in the property can be required to make
payments to the party who is removed.
Duration: The order can be of fixed or unlimited length.
 Section 35, FLA 1996: Ex-spouse or civil partner with no existing right to occupy
This section applies only to situations where the applicant has no right to occupy the
property but the respondent (the applicant’s ex-spouse or civil partner) does. If the couple
are still married or civil partners and the applicant is entitled to occupy the property then s 33
should be used.
An order under section 35 is available only in respect of a dwelling-house which was the
actual or intended home of the applicant and the respondent.
Orders available: similar to section 33, the only difference is that if the court makes any
order the applicant must be given the right to enter and remain in the property and the
respondent must be prohibited from evicting the applicant. These orders are known as
mandatory orders.
Factors to be taken into account: the general factors of section 33 and additional factors: 1)
the length of time that has elapse since the parties ceased to live together, 2) the length of
time that has elapse since the marriage was dissolved or annulled and 3) the existence of
any pending proceedings between the parties.
Duration: the order cannot exceed 6 months, but at the end of this period the applicant can
reapply for an extension.
Power of arrest: A power of arrest can be attached to an occupation order. This means that
if a person breaches the order, the police automatically have the power to arrest them. If a
power of arrest is not attached, the victim will have to apply to the court for a warrant of
arrest.
It can be attached to the order because it is considered that it is difficult to enforce an
occupation order if there is no power of arrest attached.

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Punishment for breach of order

If a person breaches a non-molestation or an occupation order then he or she is liable to be
punished for contempt of court. This may involve imprisonment or a fine.
DIVORCE
Divorce is one of the ways in which marriage is terminated.
Other forms are:
- Death
- Mutual agreement → Divorce and Judicial Separation (when both parties agree to live
apart in front of a judge, but the legal bond is not broken). The difference between
divorce and separation is that, in divorce, the legal bond is broken.
- Annulment / Annuity → there is a fundamental flaw or defect in marriage that makes it
invalid. For the law, it has never existed or it has no effect as from certain date.
It implies the dissolution of marriage, by which the vows of marriage are terminated. As opposed
to separation, in which the vows of marriage are not legally terminated, only cohabitation is.
There are different types of separation:
- formal separation: a separation agreement is signed by which the parties agree on the
terms of the separation , the division of property, among other things.
- judicial separation: issuance of a separation order.
In none of these cases the parties are entitled to remarry.
Special procedure
Prior to 1857 divorce was not available through the courts. The only form of divorce was by an
Act of Parliament, an expensive procedure that was available only to a few. The present law on
divorce is the Matrimonial Causes Act 1973.
A special procedure was introduced that, by 1977, covered all grounds for divorce where the
petition was undefended. Under the special procedure, the petitioner simply needs to lodge at
the court the petition outlining the grounds for the divorce; a statement concerning the
arrangements for the children; and an affidavit confirming the truth of these documents. If the
petition is undefended the case is entered onto the special procedure list and the district judge
just has to read through the documents and, if satisfied that the petitioner has proved his or her
case, pronounces a decree nisi. There is no need to prove the veracity of what is stated, unless
the respondent defends the divorce. There would therefore be more than an element of truth in
saying that the present law of divorce in England and Wales is in effect divorce on demand.
The divorce decree is completed in two stages. First the decree nisi is pronounced and later the
decree absolute is declared. The divorce does not take effect until the decree absolute. Any

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time after six weeks from the decree nisi the petitioner can apply for a decree absolute; if the
petitioner fails to apply then the respondent can apply for the decree to be made absolute any
time after three months from the decree nisi.
When there is a problem in the marriage, parties can go to court. The court that deals with
family law are Magistrates’ Courts (or Family Proceeding Courts), which are first instance courts
and deal with family matters (divorce, annulment, cases related to children—adoption). Another
court is the High Court, which has 3 divisions. The Family Division hears cases at an appellate
level. But when a divorce involves a certain amount of money or it is defended (contested or
challenged, one party does not agree to the divorce), or there are children with special needs,
the Family Division hears the case first / sits as a first instance court.
There are 3 main steps to getting divorced:
1. File a divorce petition –apply to the court for permission to divorce showing the reasons to
end the divorce. The respondent can respond to a divorce petition within 21 days, he or she can
agree or disagree with the divorce. When a divorce is defended or both sides file divorce
petitions, the court will usually hold a hearing to discuss the case.
2. Apply for a decree nisi –if the respondent agrees to the petition or the court decides to do
so after the hearing, a decree nisi will be issued stating there are no reasons not to grant the
divorce. A person files for divorce and becomes a petitioner because he/she presents a
petition against the respondent. The court will issue a divorce decree. There are two types of
decree: the decree nisi is a temporary one.
3. Apply for a decree absolute – The second type of decree is called decree absolute. It is the
final decision of the court. This decree may confirm the decree nisi or not. It legally ends the
marriage.
TO GRANT a decree nisi / absolute
TO ISSUE
TO PRONOUNCE
TO DECLARE
TO APPEAL
TO SUSTAIN
TO UPHOLD
Usually, the courts grant the decree of divorce and make additional orders regarding the support
and maintenance of the children and spouses. It is unusual that the courts deny issuing the
decree of divorce.

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The divorce process is quick as long as any party does not raise any defenses against the
petition. Because of this, during the 90s the press started to refer to this process as divorce on
demand or “quickie divorces”. As a consequence, the MCA 1973 was amended by the Family
Law Act 1996. The main purpose of FLA was to amend the rules connected with the procedure
for divorce, so principles connected with marriage and marital life were established. Later on, as
regards the procedure for divorce came to be invalid, and all the other aspects included in the
law still remain, such as domestic violence, children support, among others.
Ground for divorce
Nowadays, there is only one ground for divorce: that the marriage has irretrievably broken
down. Irretrievable means that it cannot be repaired. The only way of proving irretrievable
breakdown of marriage is by establishing one of the following five facts:
 The respondent`s adultery: The petitioner can rely on the fact that the respondent
has committed adultery and that the petitioner finds it intolerable to live with the respondent. Not
only adultery is necessary but also intolerance of the petitioner to live with the respondent (two
elements). It only applies to heterosexual couples. So, adultery is proved and intolerability is to
be presumed. Adultery is described as sexual intercourse with a person of the other sex –even
after same-sex marriage was legalized the concept remained the same, it should be updated for
it to be a ground for same-sex couples. The MCA 1973 states that if the parties live together for
more than 6 months after the act of adultery, the petition cannot be based on the act of adultery
(Kiss-and-make-up-rule; the six months don’t have to be continuous). If the respondent denies
the adultery, then the petitioner must prove it. There are three important facts:
a. The petitioner cannot rely on his or her own adultery.
b. It is necessary to demonstrate not only the adultery, but that the petitioner finds it
intolerable to live with the respondent.
c. It is not necessary to show that the reason why the petitioner cannot live with the
respondent is due to the adultery.
 The respondent`s unreasonable behaviour: The petitioner can rely on the ground
that the respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with him or her. A crucial point is that it is not enough just to prove that the
respondent has engaged in unreasonable behaviour. It must be behaviour that a right-thinking
person would think was such that this petitioner cannot reasonably be expected to live with the
respondent. So, the court should take into account the personality of the parties in deciding
whether the conduct was sufficient to prove the ground. However, if the petitioner is reacting
unreasonably to the respondent’s behaviour the petitioner may fail.

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Domestic violence would obviously fall within the definition of unreasonable behaviour, but a
wide range of conduct can be included under this heading.
If the spouses live together for six months after the last incident of unreasonable behaviour
referred to in the petition then the court must take this into account when considering whether it
was reasonable to expect the petitioner to live with the respondent. However, if the period is
less than six months the fact that the parties lived together after the incident cannot be taken
into account. The reason for this is that parties should not be deterred from attempting
reconciliation for fear that it would make it harder to establish a fact.
 The respondent`s desertion: If the petitioner can show that the respondent has
deserted the petitioner for a continuous period of two years preceding the petition, this could
form the basis of the divorce application. Desertion has been defined as an unjustifiable
withdrawal from cohabitation, without the consent of the remaining spouse and with the intent of
being separated permanently. If the desertion is justifiable then it cannot be relied upon. In the
US, it is called abandonment.
 Two years` separation with the respondent consent to divorce: Both parties
decide to live apart. If the petitioner can establish that there has been two years’ separation
immediately before the presentation of the petition and that the respondent consents to the
petition a divorce can be granted. This ground is significant because the law has accepted that
divorce can be obtained by consent without proof of wrongdoing. A couple is living apart unless
they are living with each other in the same household. It is possible for them to be living apart in
the same accommodation, if they are living separate lives. Not only must the parties be
physically apart, there must also be a wish by one spouse to live apart. This ground is
significant because the law has accepted that divorce can be obtained by consent without proof
of wrongdoing. Consent to the divorce is necessary; the separation has already been consented
(Divorce by Mutual Consent). The consent must be in writing. Still, the divorce procedure does
not allow for the joint petition, so only one of the parties can bring the case. Although one of the
parties brings the case and is the petitioner, both of them have to agree to the process
 Five years` separation: The petitioner can rely on the fact that the parties have
been separated for five years prior to the date of the petition. It permits divorce to be ordered
against a spouse without his or her consent and without any proof of wrongdoing. The non-
petitioner can challenge the petition. However, it is considered that no person can be forced to
continue being married to another; so the courts will grant the divorce anyway.
TO EXERCISE VIOLENCE
WARRANT OF ARREST = ORDEN DE ARRESTO

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IRRETRIEVABLE BREAKDOWN OF MARRIAGE = DIFERENCIAS IRRECONCILIABLES

Defenses against divorce
1) Hardship exception
It only applies to five years` separation fact, because the petitioner can request the divorce
based only on the passage of five years, and since the consent of the other party is not
requested, the law tries to protect such party in some way. This defence is available to the
respondent if the divorce would result in grave financial or other hardship to him or her and it
would be wrong is all circumstances to dissolve the marriage. This defence will not prevent the
divorce, but it will allow the Court to make financial provisions in favor of the respondent.
The wording of the defense is broad, thus covering: financial hardship, but also that the divorce
will affect the respondent in the wrong way in a variety of situations.
2) Kiss-and-make up rule
If the parties live together for more than six months after an act of adultery then the petition
cannot be based on that act of adultery. It is a defence that allows the trial reconciliation period
–a period of six months for the couple to reconcile. If no further action is taken after the six
months, the court will consider they have reconciled. The court will not generally grant this
defence.
3) Defence based on the passage of time
The respondent may allege that the time period has not been complied with. If three months
have passed from the making of the decree nisi and the petitioner has not applied to have it
made absolute then the respondent can apply to have the decree nisi made absolute. However,
the court has the power to refuse to make the decree absolute on the respondent’s application if
that is appropriate in all the circumstances.
4) Defence based on arrangements and provisions
The respondent may want the decree of divorce, in order to obtain a better arrangement for the
children or a better financial arrangement. So, the respondent would allege that no proper
arrangements have been made or no proper financial provisions have been made. In such case,
the process of divorce stops, the courts will analyze the case and will come out with an
appropriate arrangement. The divorce will be granted anyway, but the respondent will obtain an
order for better financial provision. The real purpose of this defense is for the respondent to
obtain a benefit and not a defense from the divorce.
5) Defence regarding the allegation of the facts or grounds
The respondent may allege that the marriage is not irretrievably broken down, or that desertion
did not take place, or that he/she did not act with unreasonable behaviour.

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Reform on Divorce Law

Since the British thought the MCA 1973 provided a very complicated way to divorce and a too
long process, the FCA 1996 was proposed. However, the FLA 1996 failed as regards divorce.
Although there were no grounds for divorce under this act, the process was, in fact, longer since
it sought to resolve all matters related to divorce (it would take a year minimum to get a divorce
decree). Besides, under FLA 1996 the courts will not grant the divorce if the parties have not
agreed on property and children matters.
The government intended mediation to be at the heart of the divorce law and it promoted the
interests of children. At first, the media called the process “quickie divorces”, but in fact it was
quicker to get a divorce under the Matrimonial Causes Act 1976, because there were more
steps to be followed to obtain a divorce that would last a year at least. The timetable for divorce
procedures under the FLA 1996 is as follows:
-0 months: the spouse wishing to initiate the procedure must attend an information
meeting. The Government’s decision to abandon the implementation of the 1996 Act was
largely caused by the lack of satisfaction with information meetings. Following the information
meeting the parties should spend the next three months considering whether they really want to
get divorced.
-3 months: one or both parties my file a statement of marital breakdown (in order to
do so, the parties must have been married for at least one year).
-The period of reflection and consideration starts. During this time the parties should
continue to consider whether they want to get divorced. This period will last 9 months and could
be extended for another 6 months if there are children involved or if one of the parties applies
for such extension.
-12 to 18 months: the parties can apply for the divorce order. It will only be granted when
parties had made arrangements for the future. This included arrangements concerning financial
matters and their children.
Only part 2 of the FLA 1996 was repealed but all the other parts are still in force.
The basis for the divorce petition was only the marital breakdown; it could be presented either
by both or one of the parties. It was not necessary to prove the guilt of the other party. The
principles of the act are still in force, which promote the good relationship between the parties
and the care of the children. The only defense that it contained was the hardship exception, in
which a party alleged that the divorce would cause great hardship on the person who reach this
defense or on the children. Under the FLA 1996, the court would issue a divorce order, not a
divorce decree.

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Separation orders
The effect of a separation order is that, although the parties remain married, there is no legal
obligation to cohabit. The significance of the order lies in the fact that it enables the court to
make orders relating to financial provision for spouses. A separation order is likely to be made
where the parties have religious objections to divorce but have decided to live separately, or
where there are financial benefits to the parties if they remain married (e.g. a widow’s pension
that will only be payable to a woman who has remained married to her husband). Few judicial
separation orders are made.
Death and marriage
Marriage comes to an end on the death of one of the parties. There can be situations where,
although it is suspected that someone has died, it cannot be proved. There are two
circumstances in which a person is entitled to assume that his or her spouse has died
(presumption of death):
-The first is based on a seven-year ground. To rely on the seven-year ground it is necessary to
show that there is no affirmative evidence that the person was alive for seven years or more
since the disappearance. It has three requirements: seven years must have passed; enquiries
must have been made; and no one must have heard from the spouse.
-The second is based on special circumstances that show there’s a high possibility of the
spouse being dead; there is no need to show how much time has passed.
ORDERS THAT THE COURT CAN MAKE
 CONSENT ORDERS:
The court may accept the parties’ proposed orders by issuing a consent order. The court will
assume that if the parties were advised independently then the terms are reasonable and will
make an order on the terms agreed by the parties. All arrangements reached by the parties will
be accepted by court unless they violate the children’s welfare. Once the consent order has
been made, it has the same legal effect as if it had been
 CLEAN BREAK ORDERS:
A clean break order ends any continuing obligation between the parties. The financial
responsibilities to each other in relation to the divorce are at an end. If a clean break order is
not made the parties can potentially have further financial obligations placed upon them after
divorce for the rest of their lives. A clean break order cannot end the possibility that a spouse
may be liable under the CSA 1991. It is only spousal support that can be clearly broken, not
child support.

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It applies to couples with no children, short marriages, and when each spouse is young and can
sustain on their own. It may happen that the couple may have decided how to divide the
property, so the court would only have to consent with what they have agreed. In these
situations, clean-break orders are similar to lump sum orders and property transfer order, in
which a party transfers a property to the other, or the few properties jointly owned by the parties
are sold and the proceeds are divided between them. There are no periodical payments,
because the aim of this order is to prevent the couple to be tied or linked by payments.
The statutory provisions: in every divorce case there is an obligation on the court to consider
whether to make a clean break order, but the order should not be made when it could produce
an unfair or unjust division between the parties.
Benefits and disadvantages of a clean break order:
1- Parties are free to pursue their careers without the fear that their actions will lead to
applications to vary maintenance payments.
2- Emotional reasons: parties may not feel they are completely release from marriage until all
financial issues are resolved.
3-Avoids future problems in the payment and collection of periodic payments.
The main disadvantage is whatever happens to any party, the court cannot reopen the court
order.
When a clean break order is appropriate:
1- When continuing support offers no benefit to the wife. Ex: if a wife is unemployed, the
payment of state benefits would be reduced by the amount of money she receives from her ex-
husband.
2- Short childless marriages: the parties can easily return to the position they were before the
marriage.
3-The very wealthy: in these cases, is appropriate to require one spouse to pay the other a
substantial lump sum as part of the clean break order, which, if suitably invested, will produce
enough income to meet the recipient’s requirements for the rest of his or her life. This is called a
“Duxbury” calculation.
4- Both spouses have well established careers: both parties are able to support themselves.
5- When there is antagonism between the spouses: continuing financial responsibility may only
increase the bitterness that affects the relationship.
When a clean break order is inappropriate:
1- When there are young children
2- When there is too much uncertainty over the recipient’s financial future

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3- When there is a lengthy marriage, especially when the wife did not work and took care of the
children and house, which limits her job opportunities.
4- To achieve fairness: When one spouse undertakes child-care responsibilities and the other
pursues a career and this causes economic disparity after the marriage which cannot be solved
by the provision of a lump sum; then periodic payments may be require to achieve fairness.
Delayed / Deferred clean break orders: this one is useful when one party could adjust to the
termination of financial provision orders in the foreseeable future. In this case, the periodical
payments order is set for a certain period of time after which the payments will end with no
option for the spouse receiving the payment to apply to extend that period.
 INCIDENTAL ORDERS:
Any party can request an incidental order at the same time, before or after the issuance of the
decree of divorce. The incidental orders are called “interim” if they are issued before the
decree absolute. Given the length of time that litigation and negotiations can take, it is
understandable that a divorcing spouse might need financial support before the making of a
final court order. The courts will take into account all the circumstances of the case. This is a
temporarily order until a final order is issued by the court. The courts will establish the period of
application of such orders. Interim orders are temporary, they apply until the decree absolute is
issued or until the spouse, who has been a housewife during the marriage, finds a job that
allows her to maintain herself. In this latter situation, the court may oblige the husband to pay a
certain amount of money as maintenance to the wife, but it is not going to be the final amount of
maintenance. It only lasts until the wife finds a job.
Incidental orders can relate to both financial matters and care of children:
Incidental orders related to financial matters
As regards incidental orders related to financial matters, i.e. spousal and child support, they can
be divided into income orders and property orders. In both cases, these orders deal with
financial issues; financial orders used to be called ancillary relief orders.
Spousal maintenance is income payable by one spouse or former spouse to the other, in his or
her own right and in addition to any child maintenance. The court has a range of orders that it
can make. This part of the process resolves any financial issues between the parties to the
marriage such as dividing pensions, dividing capital, any spousal maintenance etc. The parties
are the payer and the recipient or applicant.
1) Income orders (ancillary relief)
Ancillary relief is an incidental court order that relates to financial issues only.

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The main income order is the Periodical Payments Order (PPO) under the MCA 1978. A
percentage of the income of the payer will be paid to the recipient, as periodical payments,
either weekly, monthly or annually. The order can be secured or unsecured. If it is a secured,
when PPO and payments are not made, the property providing the security can be sold to
enable payment, the security can be the matrimonial home.
A payment order will cease on:
1-The death of one of the parties, but in the case of a secured PPO, the payment will not cease
on the death of the payer.
2-The remarriage of the recipient because the new spouse would be financially responsible for
the recipient. But, this argument does not apply when the maintenance payments represent a
share in the assets the couple have built up together during the marriage.
3- The court may specify a date on which the payments will end.
Maintenance payments can be made against either parent in benefit of the child.
2) Property orders
There are 3 types of property orders:
-Lump sum orders (LSO): a certain amount of money is paid by the payer to the recipient
in one payment; however, it is possible that the LSO be paid in installments. This order is often
used when considering housing issues.
-Transfer of property orders: the most common is that one party transfers the share in
the matrimonial home (or any other piece of property) to the other. The court can make the
order to transfer property to one spouse of to an adult for the benefit of a child under trust.
-Power to order sale: under the MCA the court can order the sale of property that either
spouse owns or that is jointly owned.
Incidental orders related to the care of the children
(Section 8 of the Children Act 1989 orders)
In cases involving children, the court can make one of these orders mentioned in s 8 of the
Children Act 1989. These orders cannot be made in respect of a person over the age of 18 and
if the child is 16 or 17 orders should not be made unless the circumstances of the case are
exceptional.
1) Residence order
A residence order is an order settling the arrangements to be made as to the person with
whom a child is to live. A residence order determines where the child shall live, it cannot order
who will care for the child. It will normally be made in favour of one of the child’s parents, but
can be made in favour of a grandparent, an aunt, or, in fact, anyone. The residence order
confers upon those to whom it is granted parental responsibility, if they do not have it already.

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The reason for this is that if the child is to live with an adult then that adult will be exercising all
the duties and responsibilities of parenthood on a day-to-day basis, and so giving him or her
parental responsibility will make the legal position reflect the factual position. If there is a
residence order requiring a child to live with one of two parents, the order will cease if the
parents live together for longer than six months.
Shared residence orders: A residence order can be made in favour of two people even if they
do not live together. The subsection explains that an order can require a child to spend a certain
amount of time with one person and a certain amount of time with the other. This is commonly
known as a ‘shared residence order’, although that is a rather adult-focused way of seeing it and
‘dual residence’ may be a preferable term.
2) Contact order
The contact order is defined as an order requiring the person with whom a child lives, or is
to live, to allow the child to visit or stay with the person named in the order, or for that
person and the child otherwise to have contact with each other. A contact order can only
be made if a residence order has also been made.
Obligation of enabling contact: firstly, the order can be directed at the residential parent,
requiring them to permit the child to have contact with the person named in the order. Secondly,
the order can simply state that the child and another person are to have contact. This last one
seems to impose no obligation on the residence parent.
Type of contact: the order involves both direct contact (face-to-face meetings) and indirect
contact (telephone calls, e-mails, letters, etc.). An indirect contact order may be more
appropriate if the contact parent cannot see the child or if they need to establish or re-establish
links. If there is fear that the contact parent (non-residential parent) may endanger the child,
contact face-to-face can be supervised by social services.
3) Specific issue order
A specific issue order (SIO) is an order giving directions for the purpose of determining a
specific question which has arisen, or which may arise, in connection with any aspect of
parental responsibility for a child. The SIO may require someone to act positively in some
way or may require someone to refrain from a particular activity. It is designed to deal with a
particular one-off issue relating to the child’s upbringing. It is not designed to deal with ongoing
disputes – for example, what kind of clothes the child may wear.
4) Prohibited steps order

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A prohibited steps order (PSO) is ‘an order that no step which could be taken by a parent in
meeting his parental responsibility for a child, and which is of a kind specified in the
order, shall be taken by any person without the consent of the court.
The PSO is entirely negative – it tells a parent what he or she may not do in respect of their
child. The order can be used, for example, to prevent a child being known by a different name,
or to prevent a child being removed from the United Kingdom.

Child support, alimony and palimony are forms of financial provisions, which mean to provide
financially for the house or for the children. Financial provisions are consequences from marital
status. A general term for financial provision is maintenance.
These three terms are more connected with divorce. When the spouses file for divorce, the
process starts, the court will issue a decree of divorce. At the same time, the court has to solve
financial situations, so it will issue orders that have to do with the division of property and the
maintenance of the family members (child support, which is financial provision to the children;
alimony which is financial provision for the spouse; palimony, which is financial provision for the
partner).
Palimony → it applies when the parties are not married or when they are joined under special
systems, for instance civil partnerships, which are the civil unions of people of the same sex. It’s
not the same as same sex marriage, which were not legal under English Law until 2013.
FACTORS TO BE TAKEN INTO ACCOUNT WHEN MAKING ORDERS
In order to calculate the amount to be paid the court takes into consideration the factors stated
in the MCA and in the Children Act 1989. The idea is that mainly children keep their level of
lifestyle. The factors taken into account are as follows:
- The welfare of children: first consideration must be given to the welfare of any child of the
family who has not attained the age of 18.
- The needs, obligations and responsibilities of the parties: in many cases, the first need the
court will consider is housing. The court will therefore always seek to ensure that the
children and their carer are housed. Te court’s responsibility is to ensure that there is
enough money, as far as possible, to meet the spouse’s needs, and it is the spouse’s
responsibility to spend it appropriately.
- The standard of living enjoyed by the family before the breakdown of the marriage: this
factor tends to be relevant to rich families in particular. However, the level of lifestyle of the
non-resident parent is important and usually taken into account; it must be in accordance
with the amount issued in the order.

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- Financial resources: all of the assets of the parties will be considered, even those they
owned before the marriage
- The age of the parties to the marriage and the duration of the marriage: the shorter the
marriage, the less likely the court will make a substantial award. In considering the length of
the marriage the court will also take into account the total length of the relationship.
- Age and disability: The court will also take into account the age of the children and if there
are any disabled children.
- Resources and income-earning capacity of each spouse. The child resources will also be
taken into account.
- Contributions to the welfare of the family: the position of the spouse who has not been
earning, but who has worked as a homemaker and child carer will be considered. The courts
have recognised this to be an important contribution to the welfare of the family.
- Conduct: it is now rare for conduct to be taken into account. As the status states, the
conduct must be such that it would be inequitable to disregard. The court will consider not
only bad conduct but also good conduct of the spouses.
CHILDREN
Financial support of children
The present law does not intervene in the financial affairs of a family who are living together. As
long as the child is provided for at a basic level and the child is not suffering significant harm,
the state will not interfere. It is on parental separation that the law intervenes and can require a
parent not just to provide for the basic needs of a child, but also to apply a fair level of support.
At the end of a marriage, both parents are responsible for supporting the children financially,
regardless of where the children will live
 The Child Support Act 1991
This act was reformed by the Child Maintenance and other Payments Act 2008. The 1991 act
was only concerned with non-residential parents. It had no impact on children whose parents
were living together. Under the CSA 1991 parents had the duty to maintain their children until
the child was 16, or until they were 19 if they were receiving full-time education. The Child
Support Agency had responsibility for administering the Act, assess and enforce the payments.
The Act provided a formula which determined the liability of the parents, but it was replaced by
a new one in the Child Support, Pensions, and Social Security Act 2000. Only four pieces of
information will be required for assessment: 1- the non-residential parent’s net income,
2- the number of children they have, 3- the number of nights the children stay overnight

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with the non-resident parent, and 4- whether they live in a household with other children.
Also, if the non-residential parent has his or her child stay with him or her for more than 52
nights a year there will be a reduction in the levels paid.
The Child Support Act 1991, which was modified by the Child Maintenance and other Payments
Act 2008. The latter retained the formula for the payment of Child Support. In the past, the party
who was in charge of the daily care of the children had to apply personally in court for
maintenance. The court intervened, and contacted the other party, and issued an order for
payment which had to be enforced. Such process was complicated and there was no guideline
to establish the amount of child support. So, the innovation of the CSA was the establishment of
the formula to calculate child support. The items taken into account are the following:
- Net income of the payer: a percentage of which will be given by the payer to the
recipient. The percentage varies according to how many children the parties have. The
law calls such children “qualifying children”, who must be under 18 or up to 19 that
continue under full-time education. The net income can be reduced in a process called
“notional income”, by which net income is reduced according to the number of other
children living with the payer, who may or may not be of his own, and who are supported
by the payer.
- The number of overnights the children spent with the payer, because of that the amount
of child care will be reduced. Net income and qualifying income may be combined, which
means that the percentage of net income will be reduced according to the number of
overnights the qualifying children spent with the payer, and the notional income will be
reduced according to the number of overnights other children of the payer spent with
him.
Problems: the CSA created the Child Support Agency, which was in charge of applying the
formula, calculating the payment, and enforce the payments but it did not have many tools to
enforce the payment. It could contact and notify the payer but no more than that; there no
punishments expressly stated in the act to non-payers. Thus, the recipient would have to bring
an action with the courts which was costly. Additionally, the payment of child support came to
reduce any state benefits that the recipient was already receiving, such as unemployment
benefits, housing benefits. Moreover, it was difficult to calculate the net income, especially in the
cases of self-employed payer. All these led to the enactment of the Child Maintenance and
Other Payments Act 2008.
The only advantage of the CMOPA was that no benefits were reduced because of receiving
child support. Regarding the formula, the same items are taken into account, but instead of the

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net income, the formula considered the gross income and the percentages were lowered. The
act lowered the percentages for qualifying children. The Act also provides for enforcement tools
for non-payers, such as the retainment of passports, the withdrawal of the payer’s driving
license, and also imprisonment. The main purpose of the 2008 Act was for the parties to reach
their own agreements, the problem was that the parties almost never agreed. So they finally
ended resorting to the state agency. If the parties did reach an agreement, the problem was that
the agreement had to go through court to be transformed into a consent order, which was an
order issued by the court which ratified the voluntary agreement reached by the parties. If no
consent order was issued, then the agreement was not enforceable.
Nowadays, two agencies exist which are the Child Support Agency, which deals with older
cases and applications but does not receive new applications, and the Child Maintenance
Service, which receives new applications. The options now provided for child maintenance are
the following:
- Family based arrangements, which are private agreements signed by both parents
where they establish how much, how, and when they are going to pay. Generally, the
non-resident is the payer and the parent with care is the recipient.
- Statutory arrangements, which are the ones established by the agencies. Agencies
apply different fees to encourage private agreements.The Service collects the amount of
child support and then transfers it to the recipient, or there is direct payment/pay, by
which the payer pays directly to the recipient.
- Consent orders, which are issued by the court. The government agencies do not
intervene. Once the court issued the consent order required by the petitioner, it does not
have to be ratified again. The amount of child support is reached through the courts.
 Child Maintenance and Other Payments Act 2008(CMOPA)
This reform was guided by the idea that the system should be simpler, less bureaucratic and
more cost-effective. And the system should always prioritize the needs of the children. The key
objectives of this act was to tackle child poverty, promote parental responsibility, provide a more
efficient and professional service and be simple and transparent.
The CMOPA provides a framework in which the Child Support Agency is replaced by the Child
Maintenance and Enforcement Commission (CMEC). The role of the commission is to promote
child maintenance and to provide info and guidance to separated parents. The CMEC is able to
charge for providing these services. The government tries to promote that separated parents
reach their own private agreement that are convenient to both of them. If they cannot reach an
agreement, they can resort to the state agency to apply the formula, as set out in the CSA 1991.

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The CMOPA amended the formula to mean that the assessment will be of the non-residential
parent’s gross income. If parents reach private agreements, the commission will not have power
to enforce them, but the couple may present the agreement to court to be made into a consent
order.
The second objective of the agency is that there is compliance with the child support orders.
No longer state benefits will be reduced if the parent is receiving child support, the state accepts
responsibility for meeting the basic need of children.
Now, there are new enforcement mechanisms available to the CMEC, such as, imprisonment,
driving disqualification, removal of travel authorization, etc.
The Child Maintenance and Other Payments Act 2008 came fully into force in 2011 and
replaced the Child Support Agency with the Child Maintenance and Enforcement Commission
(CMEC –in 2012 it changed it name to Child Support Agency again). Resident parents are now
able to agree a private maintenance agreement with their ex-partner; or, if they wish, can apply
to the CMEC for an assessment; or indeed they may wish to make no arrangements at all. No
longer will benefits be reduced if a parent is receiving child support
The role of the CMEC is to promote child maintenance and to provide information and guidance
to separated parents; besides, it has the power to enforce payments, it can imprison the non-
paying parent and disqualify him or her. The primary aim of it is to encourage people to reach
private arrangements over child support; the CMEC will only make an assessment where either
party requests the assessment to be made.
The assessment will be of the non-resident’s gross income (unlike the CSA which made the
assessment of net income) –the formula was retained.. The facts to be taken in to account so as
to make the assessment are:
1. The number of qualifying children
2. The gross income of the non-resident parent (the payor)
3. The number of nights the child spends with the non-resident parent
4. The number of children who live with the non-resident parent: the children living with the
payer may be children of a new partner or of the ex-spouse
 Children Act 1989 And Child Support
This act applies to unmarried couples; the act can require parents to support children regardless
of whether the parents are married or unmarried.
Under this act, the following can apply for a financial order in respect of the child: 1) A parent
and any party to a marriage in relation to whom the child is a child of the family (ex: step-
parent); 2) A guardian; 3) Any person who has a residence order in force in respect of the child;

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4) An adult student, trainee or any other person who under special circumstances can apply for
an order against their parents.
Liable to pay: 1) Parents, biological and adoptive, even if they do not have parental resp. or
never see the child; 2) Those who have treated the child as a child of the family, this only
applies for spouses or civil partners.
Orders that can be made: under this act periodical payment and lump sum order can be made.
A party can also be required to make a transfer of property, this is most likely to be used in
relation to the family home.
Factors that the court will consider:
1) the income, the earning capacity and other financial resources the applicant, the parents and
the person in whose favor the order will be made, have or are likely to have in the foreseeable
future;
2) The financial needs, obligations and responsibilities which the previous persons have or are
likely to have in the foreseeable future.
3) The financial needs of the child;
4) The income, earning capacity, property and financial resources of the child
5) Physical or mental disabilities of the child;
6) The manner in which the child is expected to be educated.
The child’s welfare will be an important consideration. The level of award the court grants will be
influence by:
1) The manner in which the child should be brought up, which should commensurate with the
non-residential parent’s lifestyle.
2) Whether the awards will benefit the residential parent and not the child.
3) The child’s age. A parent will only be liable to support the child during his or her minority, if a
large sum is awarded to the child, this sum will revert to the paying parent on the child reaching
18 years of age or finishing his or her education.
4) In considering the liability of a step-parent, the court will take into account the liability to
support of any biological child of theirs.
 MCA 1973 and children
On divorce or dissolution of the marriage, the court can redistribute the parties’ property and
make order especially designed to benefit the children.
The powers to redistribute apply in respect of a child of the family, this definition includes step-
children. When a step-parent is being asked to pay, special considerations are taken into
account: 1) whether the party assumed any responsibility for the child’s maintenance and, if so,

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to which extent; 2) whether the party assumed that resp. knowing that the child was not his or
her own; 3) the liability of any other person to maintain the child.
Application by children: a child who is over the age of 18 can apply for a financial or a property
order if his or her parents are divorcing. A court can order that the periodical payments extent
beyond the child’s 18th birthday is he or she is receiving instruction at an educational
establishment and there are special circumstances that justify the order.
Factors to be taken into account (to decide the appropriate level of award under the MCA 1978):
the welfare of the child and that the child is adequately housed are the first consideration. The
amount awarded under the CSA 1991 is the starting point but in wealthy cases substantial sums
of maintenance can be order that included private school fees, university tuition fees, private
medical insurance.
EMERGENCY
There are two main remedies available if children need immediate assistance.
(a) Police Protection of Children
If a police constable has reasonable cause to believe that a child would be likely to suffer
significant harm then the child can be removed by the constable to ‘suitable accommodation’.
However, this section does not give the police the power to enter and search a building. This is
an important limitation and means that, if the parents refuse to co-operate with the police, and
the child is in the parents’ house, the police have no powers under the Children Act 1989 to
protect the child.
The children can be kept in police protection for up to 72 hours. Once a child is taken into police
protection, a designated officer will be appointed to be in charge of the case. The police do not
acquire parental responsibility when a child is in police protection, but the designated officer is
required to do what is reasonable in all the circumstances to promote the child’s welfare.
He or she must permit reasonable contact between the child and anyone with parental
responsibility, or anyone else with whom the child was living. The child must be released to the
parent or person with parental responsibility unless there are reasonable grounds to believe that
he or she is likely to suffer significant harm if released.
These are cases in which the child suffers from violence exercised by his/her parents, any
relative, or anyone with parental responsibility, so the police can act immediately. Police will
approach the premises and remove the child from those parents. However police cannot force
the entry into the premises where violence takes place. In other words, police can act
immediately if they arrive at the moment the violence is occurring. However, if that is not the
case, but police is informed that a violent act had taken place, then they cannot use the force to

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enter into the premises and remove the child. Also, if the parents refuse to hand over the child,
police cannot do anything. In such cases, the police (or any third party that is aware of the
violent situations) have to ask the court to issue a removal order (EPO)
(b) Emergency protection order (EPO)
It is an order that enables a child in an emergency to be removed from where he is, or be kept
where he is, if this was necessary to provide short-term protection.
Anyone can apply for an EPO: the police, local authorities, teachers, doctors, close relatives.
Grounds for obtaining an EPO:
- There is significant cause to believe that the child is likely to suffer significant harm if
he/she is not removed to accommodation provided by the applicant.
- There is reasonable cause to believe that the child is likely to suffer harm if he/she
does not remain in the place where they are currently being accommodated. This
applies when the child is currently safe but there is fear that he or she will be removed
to a place where they may be harmed.
- The grounds are all prospective, they relate to fear of harm in the future. An EPO
cannot be made on the basis of past harm unless this is evidence of a fear of future
significant harm.
Effects of an EPO:
- Production of the child: the EPO requires any person who can comply with the request
to produce the child. The order also forbids the removal of a child from the place where
they were accommodated by the applicant.
- Acquisition of parental responsibility by the applicant: the applicant will be responsible
for the child’s welfare but the parental responsibility will be limited. The applicant
should not make any major or irreversible decisions.
- Reasonable contact: during the time the EPO remains in effect, there is presumption
that the child will have reasonable contact with certain individuals: parents, persons
with parental responsibility, those with contact orders, etc.
- The court has the power to insert additional directions when making an EPO.
Duration: an EPO lasts for 8 days, but the local authority can apply for an extension of a
maximum total of 15 days.
PARENTAL RESPONSIBILITY

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LOSING PARENTHOOD: legal parenthood will come to an end if an adoption order is made or
a parental order under the Human Fertilization and Embryology Act 2008 (HFEA 2008). In these
cases, the birth parents cease to be legal parents and the applicants take over as parents.
Parental responsibility is a key concept in family law but it does not have a clear definition.
There are two aspects of parental responsibility:
- What the responsibility means: all the legal duties and powers that enable a parent
to care for a child or act on the child’s behalf. Parents must exercise these rights
dutifully towards their children.
- Who has the responsibility: parental responsibility determines who has the authority to
make a decision relating to the child.
The Children Act 1989 defines parental responsibility as all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in relation to the child and his
or her property. A not exhaustive list of all the responsibilities that attend parental responsibility
includes: bringing up the child, having contact with the child, protecting and maintaining the
child, providing for the child’s education, consenting to the child’s medical treatment, agreeing to
the child’s adoption, administering the child’s property, naming the child.
Parental responsibility in practice: A father can still act as a parent towards a child even when
he does not have parent responsibility. But there are rights and responsibilities that a father with
parental responsibility will have that a father without parental resp. will not:
- He can withhold consent to adoption
- He can object to the child being accommodated in local authority accommodation and
remove the child from local authority accommodation.
- He can appoint a guardian.
- He can give legal authorization for medical treatment.
- He has the right to access the child’s medical records.
- He can withdraw the child from sex education and religious education classes.
- His consent is required if the child’s mother seeks to remove the child from the
jurisdiction.
- He can sign a child’s passport application and object to the granting of the passport.
- He has rights over the child to invoke international child abduction rules.
- He can consent to the marriage of the child aged 16 or 17.

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Rights of a parent without responsibility: there are rights and responsibilities that flow simply
from being a father.
- A parent has a right to apply without leave for a section 8 order.
- A parent has rights of succession to the estate of the child.
- A child in local authority care should have reasonable contact with each parent.
- Parents should be notified in the application of an emergency protection order.
- Rights of citizenship pass primarily through parentage.
- Parents are liable persons under social security legislation.
- A parent cannot marry his or her child.
- A parent who is not living with his or her child will be liable to male payments under
child support legislation.
Extent of parental responsibility: parental responsibility is for life and can only be removed under
special circumstances.
Sharing parental responsibility: there are situation in which several people will have parental
responsibility. The Children Act 1989 states that when more than one person has parental
responsibility for a child each of them may act alone and without the other(s) consent, except
when the consent of more than one person is required. So:
- Except when a statute provides otherwise, each person with parental responsibility can
exercise parental responsibility alone without obtaining the consent of others or even
consulting them.
- There is no hierarchy among those with parental responsibility, this means that there
no preference over mother or father or with whom the child lives.
There are a number of exceptions in which consent of everyone with parental responsibility will
be required, but the court may be able to authorize the act anyway.
- Adoption and freeing the child for adoption takes place if all parents with parental
responsibility consent.
- If the child aged 16 or 17 wished to marry.
- If the child is to be accommodated by the local authority none of those with parental
responsibility must have objected.
- If there is a residence order is not possible to move the child outside the UK without the
consent of all those with parental responsibility.

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- Decisions which are of fundamental importance to the child and are irreversible:
education, changing the child’s surname, etc.
Who has parental responsibility?
Mothers: acquire parental responsibility automatically.
Fathers: acquire parental responsibility when:
- He is married to the mother.
- He is registered as the father of the child on the birth certificate.
- He enters into a parental responsibility agreement with the mother. The agreement
must be signed by both parties (mother and father) and taken to court where it will be
witnessed and signed.
- He obtains a parental responsibility order from the court. Only biological parents can
apply for this order. (Filiation claim)
- He has been granted a residence order.
- He has been appointed to be a guardian.
- He has adopted a child.
Non-parents: can obtain parental responsibility if:
- They are appointed as guardians.
- They obtain a residence order.
- The person is granted an emergency protection order.
In these circumstances the non-parents will have parental responsibility, but they will not obtain
any of the right that arise from being a parent.
Local authorities: acquires parental responsibility as follows:
- When the local authority obtains a care order.
- When the local authority obtains an emergency protection order.
SOCIAL PARENTS
This refers to those who care for a child even though they may not actually be the parents.
There are several categories: guardianship, foster parents, special guardians, step-parents, etc.
 GUARDIANSHIP
Parents with parental responsibility can appoint someone to be a guardian of their children in
the event of their death. The courts can also appoint guardians. There are no restrictions as to
who can be appointed as a guardian and more than one guardian can be appointed,
Appointment of guardians by the parents: both parents with parental responsibility and
guardians themselves can appoint guardians. The appointment of a guardian must be written,

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dated and signed. Usually, parents appoint a guardian through wills, but it can also be done in a
deed (formal document signed by a notary public and witnesses).
The appointment coming into effect depends on whether or not the parents have a residence
order at the time when a parent dies:
- When a residence order has been made in favor of one of the parents, the
guardianship will take effect on the death of the parent with the residence order, even if
the other parent is still alive and has parental responsibility.
- When there is no residence order in place, the guardianship will only come ito effect
once the last remaining parent with parental responsibility dies.
This distinction seems to lie on the fact that if there has been a residence order the court may
have decided not to give residence to the other parent because they were unsuitable.
The person appointed to be a guardian does not need to be approved by the court or a local
authority. However, there is power in the court to revoke a guardianship and this power could be
used if the guardian was unsuitable.
Appointment of guardians by the court: the court may appoint a guardian there is no parent with
parental responsibility who is alive, or if the parent with the residence order has died. The court
may also appoint a guardian even if the parents appointed other guardians when they were
alive if the person appointed by the parents is unable or unwilling to carry out the role. In
deciding who to appoint, the child’s welfare will be the court’s paramount consideration.
Legal effects of guardianship:
- The guardian acquires parental responsibility
- The guardian can object to adoption.
- The guardian can appoint a guardian to replace them on their death.
- A guardian is not liable to provide financially for a child under the CSA 1989, child
legislation, nor under social security legislation, but they are under the legal duty to
maintain the children and provide education, adequate food, clothing, medical aid and
lodging.
- There are no succession rights in the intestate death of a guardian
- No citizenship right pass through the guardian.
Revocation of the appointment: is dealt with in the Children Act 1989. The guardianship can be
revoked:
- If the parent who made the appointment makes a subsequent appointment, unless it is
clear that the parent’s intentions were to appoint a second guardian.

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- The parent who made the appointment can revoke it by a signed and dated document.
- If the appointment is made in a will, it is revoked if the will is revoked.
- If the appointment is made in a document, the destruction of such document ends the
appointment.
- If a spouse is appointed as guardian, this will be revoked by a subsequent divorce.
Disclaimer: a disclaimer is a document in which a guardian refutes the appointed a guardian can
disclaim the appointment within a reasonable period of time. This ceases the rights and
responsibilities that arise from the guardianship.
Termination: Guardianship terminated by a court order, which can be applied by anyone with
parental responsibility, by the child or by the court on its own motion. The court may also decide
to appoint a replacement guardian. A guardianship may be terminated when the guardian fails
to care for the child, or even in the case of a dispute between an unmarried father and a
guardian. It will also occur on the death of the child, the death of the guardian, or on the child
reaching majority.
 FOSTER PARENTS
They are people who look after children on a long-term basis but are not related to them. Foster
parents can refer to friends who are asked by a mother/father to take care for the child for a
while, but also to a family approved by the local authority to look after children who have been
taken into local authority care. There are distinctions between private placements and public
placements.
Private foster parents: a “privately fostered child” is a child under 16 years of age cared by
someone who:
- Is not a parent
- Does not have parental responsibility over the child.
- Is not a relative.
- Has accommodation for the child for at least 28 days.
There is limited regulation of private foster parents. There is no need for the local authority to
approve the private fostering arrangement, but they should be notified and can inspect the
house where the child is living.
Local authority foster parents: They are not normally intended to care for the child on a
permanent basis and it is necessary to ensure that local authorities can remove the child when
necessary (may be to place him/her with prospective adopters). It is also acknowledged that
foster parents and children can form a close relationship that should be protected. Because of

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this, a foster parent will not be able to apply for a residence order until they have cared for the
child for 3 years.
 SPECIAL GUARDIANS
It is a status created by the Adoption and Children Act 2002 which refers to those who are full-
time carers of the child but are not going to take the full status of parenthood.
 THOSE WHO TREAT A CHILD AS A CHILD OF THE FAMILY
They are children of a married couple or any child treated by a married couple as a child of their
family. The definition covers both genetic children and children to whom the spouses are not
genetically related but the spouses have brought up as their child (step-parents/step-children).
Consequences of treating a child as a child of the family:
- On divorce, a spouse is liable to provide financial support for a child he or she treated
as a child of the family under the MCA 1978.
- Any person who treated a child as a child of the family may be liable to provide
financial support under the Children Act 1989 and the Domestic proceedings and
magistrates’ courts act 1978.
- A person who treated a child as a child of the family can apply for a residence or a
contact order.
- A child may be able to claim against the estate of the deceased adult who has treated
them as a child of the family under the Inheritance Act 1975.
 STEP-PARENTS
A step-parent is any person who marries the mother or father of a child. A step-parent will not
automatically gain parental resp. on marrying the parent. They can acquire it by an agreement
with the child’s parents with parental responsibility. The step-parent will need the consent of the
non-residence parent, or alternatively, they can apply to the court for a parental responsibility
order. The step-parent who acquires parental responsibility in either of these ways will not lose it
if the marriage comes to an end.
 WARDSHIP
It is the name given to court proceedings by which a child is made a ward of court. This means
that the High Court can be vested with supreme legal guardianship of a child to ensure their
safety and protection. Day-to-day care and control remains with an individual or the local
authority but the court’s consent is required for any important step in the child’s life.
ADOPTION
Adoption is a court procedure by which an adult becomes the legal parent of a child who
is not his/her biological child; and the child-parent relationship created is recognised as

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such for all legal purposes. Adoption is a court’s procedure whereby an adult become the
legal parent of a child who is not his or her biological child. The adoption procedure is governed
by the Adoption and Children Act 2002. A court will be willing to make an adoption order only if it
is decided that there is no realistic hope of the child living with the birth family in the foreseeable
future and that the adoption will promote the child’s welfare.
All the rights and duties are transferred to the adoptive parents.
The adoption order has to promote the best interests of the child, so there must be no realistic
hope that the child can continue living with his/her birth family. The court will try to maintain the
birth family bond, but if that is not the case, adoption is the last resort. Also, the court has to
take into consideration, at all stages, the child’s views and opinions regarding the hole adoption
process, depending on his/her degree of maturity.
The act that governs adoption is the Adoption and Children Act 2002. Under this act, there are
certain principles that govern all adoption procedures:
- Protection of the best interest of the child
- To be brought up by the birth family (in connection with best interest of the child)
- Respect to the child’s socio-cultural, religious, linguistic background during the whole
adoption process.
Requirements for adoption:
As part of the attempt to encourage an increase in the rate of adoption, the 2002 Act extends
the category of those who can adopt. Now anyone can adopt, subject to the following
restrictions:
1. An adoptive parent must be at least 21 years old. However, if a parent is adopting his or her
own child then he or she need only be 18.
2. If a couple wish to adopt together they must be married, civil partners or ‘living as
partners in an enduring family relationship’. If a couple are in a casual relationship this
would mean they could not adopt together, but one of them could adopt a child alone.
3. A single person can adopt. But a married person can only adopt alone if he or she satisfies
the court that his or her spouse cannot be found; or is incapable by reason of ill-health of
applying for the adoption; or that the spouses have separated and it is likely to be a permanent
separation.
4. There are complex rules which set out domicile or habitual residence requirements for would-
be adopters.
5. An adoption agency cannot place any child for adoption where a person over the age of 18
has been convicted or cautioned for a specified offence (e.g. child abuse).

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Requirements to be an adoptee:
Only a person under the age of 19 can be adopted, although the application must be
made before that person’s eighteenth birthday. Although the child does not need to consent
to the adoption, in the case of a child with sufficient understanding they should be consulted
through the process and offered counseling.
Stages of the adoption process
The road to adoption under the Adoption and Children Act 2002 involves the following stages:
1. Planning for adoption. The local authority should consider whether adoption is suitable for
every child in its care. If it decides that the birth family are unable to meet a child’s needs in the
foreseeable future and that adoption is likely to provide the best means of doing so, then a plan
for adoption should be drawn up. In making the decision to consider adoption, a delicate
balance has to be drawn. On the one hand, if the local authority believes that there is a hope of
rehabilitation with the birth parents it will be reluctant to pursue an adoption. On the other hand,
delaying adoption because of a faint hope of rehabilitation may mean the child has to spend
years in limbo, making the chance of success of any later adoption more remote. Some local
authorities use a process known as twin-tracking to deal with this difficulty: at the same time,
work is done on the one hand with the family in an effort to pursue rehabilitation with the birth
parent, while on the other hand preparations are made to find an alternative secure home for
the child. Another scheme is known as concurrent planning, where a child is placed with foster
carers on the understanding that they will assist in attempts to rehabilitate the child with the birth
parents, but, if that fails, the foster carers will be considered as adopters.
2. Assessing would-be adopters. When a couple or an individual approaches an adoption
agency, wishing to be considered as an adopter, they will be assessed by the agency. There
were also complaints that the assessments used were improperly invasive. In response, the
Adoption Agency Regulations 2005 set out the grounds that should be taken into account. This
should at least ensure there is consistency in practice between the different agencies.
3. The preparation of the report. The adoption agency must interview and assess anyone who
puts themselves forward as potential adopters and then prepare a detailed report for the
agency’s adoption panel.
4. The adoption agency’s decision on the applicant’s suitability. In the light of the report, the
adoption agency will decide whether or not to approve the adopters. Although the report
prepared by the panel will be taken into account, the decision is ultimately one for the agency.
An applicant who was rejected as an adopter by a local authority could apply for judicial review
of the local authority’s decision.

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5. Matching the child and adopter. If the adopter(s) is (or are) approved, the agency must then
consider whether there are any children needing to be adopted who are an appropriate match. If
there are, the applicants will be given brief details of the children. If the applicants are keen to
proceed then the adoption panel will prepare a report for the adoption agency on the proposed
match.
6. The agency approves the match. The adoption agency will need to approve of the proposal
that adoption between the child and would-be adopter should be pursued.
7. The adopters are provided with a full report on the child. The would-be adopters at this stage
will be provided with a full report on the child’s health, needs and history.
8. Placement of the child with the would-be adopters. The next stage will be the placement of
the child with the adopters for what is, in effect, a trial period. To place a child, the agency must
either have the consent of each parent with parental responsibility or must have obtained a
placement order from the court.
9. The agency applies for an adoption order. If the placement has worked well, the final stage
will be for the adoption agency to apply for an adoption order. It is not possible to apply for an
adoption order unless there has been a placement order or the parents are consenting to the
adoption, with one exception: that is, foster carers who have looked after the child for at least 12
months, who can apply without satisfying any further requirements.
10. Issuance of an adoption order. Birth parents can withdraw their consent, provided that the
application for an adoption order has not been made yet, because during the placement for
adoption lasts at least 10 weeks before the adoption agency applies for an adoption order. If the
court finds that it is in the best interest of the child to be adopted by the prospective adopters,
the court will make an adoption order. As long as the adoption order has not been made, birth
parents can withdraw their consent.
Before making an order, the court must be satisfied that the placement criterion has been met.
These vary depending on the nature of the applicants:
-If the adoption is through an adoption agency, the child must have lived with the applicants for
at least 10 weeks.
-If the adoption is a non-agency case and the applicant is a step-parent the minimum period is 6
months.
-If the adoption is a non-agency case and the applicant is a local authority foster agency carer, a
continuous period of one year is required.
-If the adoption is a non-agency case and the applicant is a relative, the child must have lived
with the applicant for a cumulative period of 3 years during the preceding 5 years.

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Agency cases are different from non-agency cases. The latter refer to blended families, in
which the intervention of the agency will not be necessary because the step-parents already
know and have spent time with the child. In such case, the period of placement for adoption
lasts 6 months (minimum time period), and not 10 weeks.
Once the adoption order is issued, the adoptive parents acquire parental responsibility and
parental status, which are transferred from the birth parents (whose parental responsibility and
parental status are terminated) to them, for all legal purposes. The child becomes the child of
the adoptive parents; the child will come within the prohibited degrees for the purposes of family
with the adoptive family, the child will not inherit his/her birth family.
In the case of open adoptions, the birth family continues to have a link with the child but this
does not mean that they have parental status or parental responsibility. Both of them are vested
with the adoptive parents. Openly adopted children will feel less rejected because they will know
that they were not turned down by their own families.
The court will then consider two crucial requirements:
-That making the adoption order is in the child’s welfare: the court will consider the child’s
wishes and feelings regarding the decision, the child’s particular needs, the effect of the
adoption of the child throughout his or her life.
-The birth parents consent to adoption: the court must have the consent of the parents or
dispense with that consent. All parents with parental resp. and any guardians are required to
consent. The consent of an unmarried father without parental resp. is not required.
The consent must be unconditional and with full understanding of what it involves, this means
that parents cannot consent only under certain circumstances.
-Dispensing with consent: a court can dispense of the consent of a parent if the parent or
guardian cannot be found or is incapable of giving consent; or if the child’s welfare requires the
consent to be dispensed with.
Placement for adoption
To place a child, the agency must either have the consent of each parent with parental
responsibility or must have obtained a placement order from the court:
- Placement by consent: parental consent can be specific (parents grant consent to a
particular person or persons) or general (the parents consent to the child being placed
with whomever the local authorities deem appropriate). If at any time the parents
withdraw consent, the agency must apply for a placement order or returned the child to
the parents. Once consent is granted the agency acquires parental responsibility, but

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the birth parents do not lose it, although the agency can decide to which extent it is
exercised.
- Placement by placement order: the court can make a placement order.
Effects of an adoption order:
- Parental responsibility of the child is given to the adopters.
- Adopting parents can make all decisions regarding their child.
- An adoption order extinguishes the parental status and responsibility of the biological
parents, except when a step-parent adopts his or her partner’s child.
- The adopted child will have no right to inherit their birth family’s property.
- If the adopted child is not British, they will acquire British citizenship provided that the
adopter is a British citizenship.
- A minor may retain nationality he or she had acquired from his or her birth.
Revocation of an adoption order: there are only three circumstances in which an adoption order
can be overturned.
- When the child was adopted by his or her father and then the father marries the child’s
biological mother.
- In case there is a flaw in the making of the order and there are special circumstances
such as: the consent of the parents was given on the basis of a fundamental mistake or
where the adoptions procedures involved a fundamental defect in natural justice.
- If the child is adopted by a new set of parents, this will end, but not revoke the original
adoption.
ASSISTED REPRODUCTIVE TECHNOLOGIES
Techniques intended to establish a pregnancy.
ATRs are governed by the Human Fertilization and Embryology Act 1990 as amended the
HFEA 2008.
Principles:
- Best interest of the child
- Reproductive rights: cluster of civil liberties which are connected with the time in which a
person decides to procreate.
- Right to a family
Terminology:
- Gamet: a reproductive cell; an egg in the case of women, sperm in the case of men.
When an egg and sperm is combined, an embryo is created.

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- An embryo is not a fetus; it is a cell at the early stages of development. A fetus is more
developed of at least 3 months old.
- Admixed embryos: the law allows a mixture of a hamster’s egg with human sperm for
research purposes or to determine if a man is fertile.
A woman cannot undergo fertilization treatments unless account have been taken of the fact
that the potential child will have his/her rights protected. In that regards, Section 13 of the act
protects the child’s best interests.
The procreational intent of the parties is important, because they both must give their consent,
which has to be effective, in writing, and signed. The amendment contemplates an exception
and that is in the case when a severe injury or disability by which the person is unable to sign
the consent, so the person can direct another to do it as long as there is a witness who can
attest for this act. The consent must specify the purposes for which the gamets or embryos will
be used (fertilization treatments, research, provision for training embryologists, storage).
Whenever a person provides his/her consent to the treatment with a licensed clinic, notice must
be given to the other party. The prospective father has to send a corresponding notice to the
mother consenting to become the legal parent of the prospective child. Both notices must be
sent to the person responsible, which is the one under whose supervision all the treatments
must be carried out. Whenever a prospective mother sends multiple notices to various persons,
the person responsible will take into account the last set of notices sent.
Consent can be withdrawn as long as the embryo has not been transferred to the mother’s
womb.
If the prospective parent dies, notices of consent must have been given before the placement of
the embryos or gamets in the mother. The deceased will be deemed to be the child’s legal
parent provided that in the consent, the person has shown this intent to be the legal parent.
Right to identity
Donor-conceived person can receive non-identifying information about the donor when he/she
reaches 16 years of age; and when the donor-conceived person reaches 18 years of age can
have access to identifying information about the donor, provided the donor agreed his
information should be available to potential children that may result from his/her gamets. The
donor, on the other hand, can only have access to the number of birth, year of birth, and sex of
children born with their biological material.
Licensed clinic: the HFEAgency grants licenses to clinics to provide the licensed treatments
under the HFEA 2008.
Surrogacy

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An alternative to couples who have a physical incapacity, or for same-sex couples.

Surrogacy is governed by the Surrogacy Arrangements Act 1981.
Surrogacy arrangements are not enforceable.
Parties:
→ Surrogate / Surrogate mother / Host mother
→ Commissioning parents
Types:
→ Full or host / gestational surrogacy: no genetic connection between the surrogate and the
child.
→ Partial / trade / traditional surrogacy: there is a genetic connection between the surrogate and
the child.
For a commissioning parent to acquire parental responsibility, certain requirements have to be
met:
- Parental order: which transfers parental responsibility and parental status from the
surrogate to the commissioning parents through the written consent of the surrogate
- Only couples can apply for parental orders
- The application for the parental order must be filed no later than 6 months after the
child’s birth and the commissioning parents have to be living with the child at the time
the order is applied for.

ADOPTIVE / ADOPTED PARENTS / ADOPTERS

ADOPTED CHILD OR ADOPTEE
TO PARENT SB
TO BE SB’S PARENT
BLENDED FAMILY = FAMILIA ENSAMBLADA
TO SURRE

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