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Vulnerability, Law, and the Married Family

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Relational Vulnerability

Part of the book series: Palgrave Socio-Legal Studies ((PSLS))

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Abstract

This chapter applies the relational vulnerability framework to the legal regulation of the married family, particularly the law governing financial distribution on divorce. It argues that, although the legal framework stresses that marriage is a partnership of equals, it nonetheless displays a clear preference for principles of autonomy and individualism. There is an emphasis on the swift termination of financial obligations following divorce, as well as the promotion of private bargaining through the use of prenuptial agreements. The state remains restrained, expecting individuals to resolve disputes without recourse to the courts. The legal framework contributes to the dependency-worker’s marginalisation. If she cannot comply with the state’s expectations of rapid financial recovery from divorce, she is stigmatised and labelled the author of her own misfortune.

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Notes

  1. 1.

    The Civil Partnership (Opposite Sex) Regulations 2019 extended civil partnership to opposite-sex couples, meaning that all couples now have the option whether to formalise their relationship through marriage or civil partnership. Marriage and civil partnership are almost identical in terms of their legal effect and financial consequences and, therefore, references to the married family should be taken to also include the civilly partnered family, unless expressly stated otherwise.

  2. 2.

    For civil partnership dissolution, the court’s redistributive powers are contained in Schedule 5 to the Civil Partnership Act 2004 and are virtually identical in nature to those in Part 2 of the Matrimonial Causes Act 1973. In Lawrence v Gallagher [2012] EWCA Civ 394, the Court of Appeal confirmed that the principles applicable to redistribution following civil partnership dissolution are the same as those applicable where the couple was married.

  3. 3.

    Under s 25(1), “first consideration” must be given to the welfare when minor of any child of the family. The factors set out in s 25(2) that the court must have regard to when making a financial order are (a) the income, earning capacity, property, and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b) the financial needs, obligations, and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

  4. 4.

    Versions of Deech’s Bill were introduced during the 2014–1015, 2016–2017, and 2017–2019 parliamentary sessions.

  5. 5.

    The majority consisted of Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Lord Brown, Lord Collins, and Lord Kerr.

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Authors and Affiliations

  1. School of Law, Oxford Brookes University, Oxford, UK

    Ellen Gordon-Bouvier

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  1. Ellen Gordon-Bouvier
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Correspondence to Ellen Gordon-Bouvier .

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Gordon-Bouvier, E. (2020). Vulnerability, Law, and the Married Family. In: Relational Vulnerability. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-61358-7_4

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  • DOI: https://doi.org/10.1007/978-3-030-61358-7_4

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  • Publisher Name: Palgrave Macmillan, Cham

  • Print ISBN: 978-3-030-61357-0

  • Online ISBN: 978-3-030-61358-7

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