Obligation and commitment in family law

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OBLIGATION AND COMMITMENT IN FAMILY LAW
A tension lies at the heart of family law. Expressed in the language of rights
and duties, it seeks to impose enforceable obligations on individuals linked
to each other by ties that are usually regarded as based on love or blood.
Taking a contextual approach that draws on history, sociology and social
policy as well as law and legal theory, this book examines the concept of
obligation as it has been developed in family law and the difficulties the law
has had in translating it from a theoretical and ideological concept into the
basis of enforceable actions and duties. Increasingly, the idea of commitment has been offered as the key organising principle for the recognition
of family relationships, often as a means of rebutting claims that family
ties are becoming attenuated, but the meaning and scope of this concept
have not been explored. The book traces how the notion of commitment is
understood and how far it has come to be used as a rationale for imposing
the core legal obligations which underpin care and caring within families.

ii

Obligation and Commitment
in Family Law

Gillian Douglas

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First published in Great Britain 2018
Copyright © Gillian Douglas, 2018
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Names: Douglas, Gillian, author.
Title: Obligation and commitment in family law / Gillian Douglas.
Description: Oxford [UK] ; New York : Hart Publishing, 2018. |
Includes bibliographical references and index.
Identifiers: LCCN 2017052960 (print) | LCCN 2017055287 (ebook) |
ISBN 9781782258537 (Epub) | ISBN 9781782258520 (hardback : alk. paper)
Subjects: LCSH: Domestic relations—Great Britain. | Parent and child (Law)—
Great Britain. | Family policy—Great Britain.
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Preface
The idea for this book had been in my mind for several years, but it was
only when I was fortunate enough to be awarded a Leverhulme Trust Major
Research Fellowship that I was able to devote the time to develop it p
roperly.
I am immensely grateful to the Trust for providing me with the opportunity
to spend two years on a project exploring the notion of obligation and commitment in family law. This book is the major output from that project.
The motivation for my project was initially to look more closely at some
of the earlier development of what might be called the ‘modern’ family law
era, which began when family issues shifted from being primarily dealt with
through ecclesiastical and property law to a body of secular law distinctly
concerned with ‘the family’. I was interested in the peculiar legal suit of
‘restitution of conjugal rights’, about which there seemed to be very little
ever written. The idea of attempting to use law to coerce the performance
of the non-financial obligations of marriage then led me to think further
about how, and how far, the law has been used to determine the nature and
content of family obligations more generally. The notion of family obligation assumed more significance when I was involved in an empirical study
of people’s attitudes to the law of inheritance. The study was intended to
provide information for the Law Commission in its review of the law of
intestacy, a law that has barely altered since 1925. In asking people for
their views on who should receive (shares of) their estate, it was clear that
what Janet Finch and Jennifer Mason, in their earlier qualitative study of

attitudes to inheritance (Negotiating Family Responsibilities, 1993), had
described as a ‘sense of obligation’ was highly important in determining
their views of what would be ‘right’ and ‘fair’. But it seemed that despite the
enormous social changes in family formation and attitudes to intimacy and
relationships that have taken place since the 1970s, never mind the 1920s or
1850s, people were still rather traditional when it came to matters of inheritance. We found that their ‘inheritance family’—the family they regarded
as legitimate claimants on their estate—was generally the narrow nuclear
family of partner (including a cohabiting partner) and children, with ‘own’
(ie genetic) children taking priority over step-children.
It seemed to me that as ‘identity’ has become more important in terms
of social, cultural and political personhood, so the notion of relational
identity—who is connected to whom—has become the focus of much of
the energy of family law scholars who have examined and advocated the
case for the legal recognition of a broader range of family relationships than

vi Preface
this narrow nuclear family type. But somewhat less attention has sometimes
been paid to considering what the legal consequences of such recognition
would be, often because the drive for recognition has been motivated by
a call, or an assumption, that this should deliver equality with the family
relationships that are already recognised. Yet we all know from socio-legal
and empirical insights into the working of family law that how the law is
applied in practice may be far removed from how it appears on its face. And
we also know that the law is communicated through a discourse imbued
with underlying ideologies, attitudes and values that need to be unpacked
and evaluated. So the aim of my project, and this book, has been to focus
not on the recognition of relationships, but on the consequences of recognition as articulated through core ‘obligations’ imposed by the law on family
members towards each other.
As well as examining the concept of obligation, the other dimension of

my project has been to explore the meaning of ‘commitment’ in family law
and family relationships. This is a concept that has become much more
prevalent in both popular and legal discourse about the family and relationships in recent times, but as I explain in Chapter 1, its meaning has shifted
from a term largely synonymous with burden—and obligation—to one that
embodies dedication and allegiance to a person or a relationship. I seek to
show how this change in meaning is a reflection of the liberal view of intimate relationships as existing to provide emotional self-fulfilment for the
autonomous individual, who should be free to ‘move on’ from them if they
fail to deliver such satisfaction. I note throughout how this conception of
commitment is gendered, and how it also reflects the traditionally patriarchal stance of the law in the regulation and control of family relationships.
The core obligations imposed by the law on family members fall squarely,
in my view, within the notion of ‘caring’, the various meanings of which
I explore in Chapter 1. Care has rightly become central to the understanding
of what a ‘functional’ approach to families and to family law might look
like, but it is sometimes forgotten how (far) it might already be included
within the content of family law. One can identify a specific ‘duty of care’
applying to the relationships that have traditionally been given legal recognition through a recognised legal status—marriage and parenthood—with
family law imposing a variety of both positive and negative obligations on
spouses and parents. The core positive obligations of care concern the duty
of a spouse to cohabit with, and to maintain, the other spouse, and the
duty of a parent to support, and to maintain a relationship with, his or her
child. The negative obligations of marriage might be regarded as including
a duty not to commit adultery and a duty not to act with cruelty (or now,
loosely, ‘unreasonably’). Negative obligations of parenthood might include
the duty not to neglect or to ill-treat the child. The distinction between positive and negative obligations is discussed further in Chapter 1. The focus of
the case studies discussed in this book is on the positive obligations only.

Preface vii
This is because, apart from adultery, which, by definition, can only apply
to marriage (or, should it be so defined, although this has not been the

case in the United Kingdom, to a civil partnership), such negative obligations are not confined to those in legally recognised ‘family’ relationships.
Acting with cruelty towards an intimate partner, or towards a child, might
be a criminal offence regardless, and a spouse behaving in such a way that
the other cannot reasonably be expected to live with him or her may well
involve criminal offences (eg acts of violence) or other acts controllable by
civil law applicable to non-family members (eg harassment), or acts which
would be regarded as anti-social regardless of the relationship (eg drunkenness, personal neglect). I have chosen not to deal with adultery and the duty
of fidelity, in order to avoid becoming side-tracked into a different discussion of the grounds for divorce, which raise issues separate from the notions
of obligation or commitment.
I have sought to trace the development of the law taking a retrospective
approach, largely from the Victorian era, up to the current time, seeking
to contextualise the primary legal sources and the ways in which relationships are viewed and evaluated within them, through reference to social,
historical and demographic data and insights. These are discussed in detail
in Chapter 2 and referred to throughout the book. I make extensive use of
the primary legal sources. In my view, case law and statute are invaluable
as sources of information regarding the attitudes that the state considers as
important to promote and enforce through law, always bearing in mind, as
I have noted, that one cannot assume that the ‘messages’ being sent are an
accurate and complete reflection of how people actually behave, nor that the
messages are received, understood and acted upon as intended.
The focus of Chapter 3 is on the action for ‘restitution of conjugal
rights’—a remedy for desertion in the form of a decree requiring one spouse
to resume cohabitation with the other. This was not finally abolished until
1970. Chapter 4 considers the approach taken to financial support within
and after marriage, and the establishment of the ‘clean break’ principle ending all financial ties between the spouses. This was put into statutory form
in 1984. Chapter 5 examines the law governing child maintenance and the
pendulum swings that have taken place in policy between a focus on the role
of the state or the private sphere in providing financially for children. The
high-water mark of state intervention in the parental duty to support one’s
child came with the establishment of the child support scheme in 1991.

Chapter 6 focuses on how the law has been used to allocate rights and
obligations relating to parenting and the upbringing of children both during
and after the parental relationship has ended. A drive to encourage more
equal roles for both parents received particular recognition in the Children
and Families Act 2014. These chapters seek to build up a picture of how the
law has reached its current state, and to reflect its interaction with the major
social changes that have taken place in the modern and post-modern eras.

viii Preface
Chapter 7 changes the focus from the obligation to provide care in its
various forms within the nuclear, form- or status-based family, to the recognition of care work as giving rise to a right to redress or compensation, as
advocated by those who argue for a more functional approach to relationship recognition. Here, the discussion considers the recognition of care as a
‘contribution’ to the family, in divorce or property law and as extended to
cohabiting and ‘caring’ relationships in Australia. Chapter 8 evaluates the
development of the law as traced in the earlier chapters, and its fit with the
changing nature of families and changing social attitudes.
The case study approach that I have adopted to exploring family legal
obligations means that I do not address three significant developments in
family law in recent years. The first is the legal recognition of same-sex relationships and of families formed by these. One might legitimately argue that
the adoption of non-discriminatory laws on sexual orientation is in many
ways the most fundamental social shift in the sphere of intimacy and family
relations that has been experienced in modern British (and western) society.
However, as I have indicated, the focus of this work is not on the recognition of relationships and relational identities, but on the consequences
of such recognition, in the form of legal obligations of care. As same-sex
relationships have come to be included within the sphere of family law,
this has been on the same basis as traditional ‘family’ relationships. The
retrospective assessment in this book of the development of the law on family obligations is as relevant, I would therefore hope, to understanding its
significance for same-sex relationships as it is for heterosexual couples and
traditional families, although future legal development may identify ways

in which same-sex partnerships should be treated differently by family law
(eg in relation to assumptions regarding gendered dependency).
The second omission is detailed discussion of the challenge of providing
care for the elderly. My rationale is twofold. First, apart from under the
Poor Law, there has never been a legal obligation on adult family members
to support their parents or other kin in England and Wales, which raises
particular issues of cultural and social expectation. I touch upon the issue in
Chapters 7 and 8. Secondly, until an assessment has been made of the utility
and desirability of the imposition of binding obligations that have been recognised in the past, we cannot form a sensible view on whether these should
be extended to additional family forms or ways of caring for each other.
I hope that the discussion and conclusions in this book provide insights that
are helpful to those shaping policy for all forms of caring, in respect of all
forms of ‘family’ relationships, in the future.
Thirdly, it should be noted that I have not sought to provide a comprehensive ‘statement of the law’ as it currently stands. In particular, international
human rights standards and internationally developed norms and processes
play a part in regulating family relationships through law, particularly
in relation to ‘international’ families formed, living and changing across

Preface ix
state borders. However, the development of the law in England and Wales
(and, in Chapter 7, in Australia) discussed in this book has not entailed
significant reference to or application of international and transnational law.
So although relevant provisions and instances are referred to, primarily in
Chapter 6, which deals with the promotion of ‘contact’ and ‘involvement’ in
the life of the child post parental separation, I do not discuss them in detail.
I have been able to discuss ideas and issues arising in this book with many
friends and colleagues, including (in alphabetical order), Rebecca BaileyHarris, Anne Barlow, Caroline Bridge, Julie Doughty, Kathy Griffiths, John
Haskey, Emma Hitchings, Nigel Lowe, Judith Masson, Mervyn Murch,
Leanne Smith, Sharon Thompson and Liz Trinder. I would like to thank

Belinda Felhberg and Helen Rhoades at the University of Melbourne,
Patrick Parkinson at the University of Sydney and Bruce Smyth at the

Australian National University, for hosting my visits and providing valuable
information on family law in Australia. I am lastly and especially grateful to
Stephen Gilmore, Kathy Griffiths, Jo Miles, Daniel Monk, Rebecca Probert
and Frederik Swennen, for reading and commenting on various chapters in
draft.
This book is dedicated to my husband, Hugh Rawlings, with the deepest
sense of love, obligation and commitment.
Gillian Douglas
September 2017

x

Contents
Preface�� v
Table of Cases�� xv
Table of Legislation�� xxi
1. The Ties that Bind?�� 1
I. Introduction�� 1
II. Care and Caring�� 4
A. An ‘Ethic of Care’�� 4
B. Meanings of ‘Care’�� 5
III. Legal Obligation�� 8
A. Obligation as Duty�� 8
B. Obligation as Remedy�� 11
C. The Nature of Family Obligation�� 12

IV. Obligation as a Social Norm�� 15
V. The Concept of Commitment�� 18
A. Commitment in Legal Discourse�� 18
B. Commitment in Family Law Policy�� 22
C. Commitment as a Social Concept�� 23
VI. The Rationale for Obligations Upon Family Members�� 28
A.Causation�� 29
B. Mutual Commitment�� 30
C. Relationship-generated Loss and Gain�� 31
VII. Obligation or Commitment�� 32
2. Family Change and Individual Commitment�� 35
I. Family Changes�� 35
II. A Demographic Picture�� 36
A. Forming ‘a Family’�� 37
B. Birth and Family Size�� 42
C.Households�� 45
D. The Ending of Relationships�� 45
E. Lone-parent Families�� 49
F. Economic Activity�� 51
III. From the Family to the Individual�� 59
A. Form, Role and Gender�� 59

xii Contents
B. Capitalism and Family Function�� 60
C. Individualism and Individualisation�� 64
IV. Change and Commitment�� 68
3. To Have and To Hold�� 70
I. Compelling Cohabitation�� 70
II. The Concept of Consortium�� 71

III. The Suit for Restitution of Conjugal Rights�� 76
A. The Basis of the Action�� 76
B. The Ostensible Purpose of the Decree�� 78
C. The Effect of the Decree after 1884�� 82
D. The Tactical use of the Suit�� 85
E. Abolition of the Suit�� 90
IV. The Modern ‘Duty’ of Cohabitation�� 94
V. Marriage as Personal Commitment�� 96
4. A Clean Break�� 98
I. A Duty to Maintain�� 98
II. Maintenance During Marriage�� 99
A. A Direct Right to Seek Maintenance�� 100
B. Is there Still an Obligation to Maintain a Spouse
During Marriage?�� 104
III. Post-Divorce Maintenance and the Clean Break�� 106
A. Financial Remedies before the Matrimonial
Proceedings and Property Act 1970�� 106
B. Assessment of Maintenance�� 108
C. The Modern Law�� 114
IV. Triumph of the Clean Break?�� 128
5. Can’t Pay? Won’t Pay!�� 130
I. Duty to State, Mother or Child?�� 130
II. Limiting the Burden on the State�� 131
A. The Poor Law�� 131
B. The Problem of ‘Bastardy’�� 133
III. Protecting the Position of Mothers�� 134
A. The Direct Claim for Maintenance�� 134
B.Quantum�� 137
C. Provision for Children Born Outside Marriage�� 141
D. Duration of Provision for Children�� 145

IV. Supporting the Child�� 146
A. Replacing the Courts�� 146
B. Reforming Child Support�� 151
C. Family-based Arrangements�� 154
D. Collection and Enforcement�� 157
V. A Culture of Non-Compliance�� 159

Contents xiii
6. Parenthood is for Life�� 161
I. Obligation or Right?�� 161
II. Paternal Right and Maternal Concession�� 164
A. The Purpose and Benefits of a Custody or Access
Order�� 165
B. The Welfare of the Child�� 167
III. A Right of Both Parents�� 168
A. Splitting Rights�� 170
IV. A Right of the Child�� 172
A. Access and the Welfare of the Child�� 174
V. A Parental Responsibility�� 176
A. A Duty to Facilitate Contact�� 177
B. ‘Implacable Hostility’ or Legitimate Fear?�� 178
C. Contact and Commitment�� 180
VI. Enforcing Contact�� 181
A. Enforcing an Obligation to Allow Contact�� 181
B. Enforcing an Obligation to Maintain Contact?�� 185
VII. A Presumption of Continuing Parental Involvement�� 186
A.‘Involvement’�� 188
VIII. An Obligation to be ‘Involved’?�� 190
7. Who Cares?�� 192

I. Care-Giving as an Obligation�� 192
II. Care-Giving as a Claim to a Remedy�� 194
A. Care as Contribution in a Marriage�� 197
B. Care, Commitment and Cohabitation�� 201
III. Caring Relationships�� 207
A. What is Meant by ‘Caring’?�� 209
B. What is a Caring ‘Relationship’?�� 213
C. The Rationale for Recognition�� 217
IV. Recognition of Caring Relationships, or Recognition
of Care?�� 219
8. The Law of Family Obligations�� 222
I. Care, Obligation and Commitment�� 222
II. Altruism, Family Obligation and Non-Justiciability�� 224
A. Family Morality and Religious Duty�� 224
B. Law Reform and Obligation�� 226
C. The Sphere of the Emotions�� 228
III. The Gendered Legal Approach to the Family Unit�� 231
IV. Obligations and Commitments in Family Law�� 235
A. Laissez-faire Family Law?�� 237
B. Remedial Family Law�� 240

xiv Contents
C. Caring Relationships�� 243
D. ‘Family-based’ Remedies�� 245
V.Obligation and Commitment�� 246
Bibliography�� 249
Index�� 265

Table of Cases
ENGLAND AND WALES
A v A (A Minor: Financial Provision) [1994] 1 FLR 657�� 145
A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, CA�� 174, 178, 182
Acworth v Acworth [1943] P 21, CA�� 111
AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam),
[2014] 2 FLR 251�� 19
Ak-Tankiz v Ak [2014] NSWSC 1044�� 217
Allen v Allen [1948] 2 All ER 413, CA�� 168
AR v AR (Treatment of Inherited Wealth) [2011] EWHC 2717 (Fam)
[2012] 2 FLR 1�� 112
Ashcroft v Ashcroft and Roberts [1902] P 270, CA�� 110
Ashley v Ashley [1968] P 582�� 104
B v B (B (An Infant) Intervening) [1971] 1 WLR 1486, CA�� 173
Ball v Ball (1827) 57 ER 703�� 165
Barlee v Barlee (1822) 162 ER 105�� 77
Barnardo v McHugh [1891] AC 388�� 133, 163
Bazeley v Forder (1868) LR 3 QB 559�� 131, 135
Beer v Beer (1906) 94 LT 704�� 83
Bellenden v Satterthwaite [1948] 1 All ER 343, CA�� 114
Bent v Bent and Footman (1861) 164 ER 1047�� 164
Bernard v Josephs [1982] Ch 391, 402, CA�� 20
Best v Samuel Fox & Co Ltd [1952] AC 716�� 72
Black v Black (1991) 15 Fam LR 109�� 206
Brett v Brett [1969] 1 WLR 487, 489, CA�� 113
Brodie v Brodie [1917] P 271�� 84, 89
Brooking-Phillips v Brooking-Phillips [1913] P 80�� 79, 82
Calderbank v Calderbank [1976] Fam 93�� 145
Campbell v Griffin [2001] EWCA Civ 990 [2001] WTLR 981�� 203
Chamberlain v Chamberlain [1973] 1 WLR 1557�� 146

Charman v Charman (No 4) [2007] EWCA Civ 503
[2007] 1 FLR 1246�� 200
Churchard v Churchard [1984] FLR 635, CA�� 174–75, 178,
180, 182
Clout v Clout and Hollebone (1861) 164 ER 1047�� 164
Clowes v Jones (1842) 163 ER 697�� 85
Cobb v Cobb [1900] P 294�� 103, 138
Codrington v Codrington (1864) 164 ER 1367�� 165
Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) [2015] 1 FLR 745�� 18–19
Countess de Gasquet James v Duke of Mecklenburg-Schwerin
[1914] P 53�� 86–87

xvi Table of Cases
Cowley v Cowley [1913] P 159�� 87
Crozier v Crozier [1994] 1 FLR 126�� 121
Dailey v Dailey [1947] 1 All ER 847�� 110
Daubney v Daubney [1976] Fam 267, CA�� 19
Davies v Davies [2016] EWCA Civ 463 [2016] 2 P & CR 10�� 203
Delaney v Delaney [1990] 2 FLR 457�� 140
Dewe v Dewe; Snowden v Snowden [1928] P 113�� 99
Dipper v Dipper [1981] Fam 31, CA�� 120–21, 125, 172
Dunford v Dunford [1980] 1 WLR 5, CA�� 121
Duxbury v Duxbury [1992] Fam 62n, CA�� 112, 199
Evans v Evans (1790) 161 ER 466�� 78, 96, 227
Evans v Evans [1948] 1 KB 175�� 80
F v L (Permission to Relocate: Appeal) [2017] EWHC 1377 (Fam)�� 189
Fender v St John Mildmay [1938] AC 1, HL�� 71, 73
Fisher v Fisher (1861) 164 ER 1055�� 107, 109–10, 113
Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304, CA�� 1

Fletcher v Fletcher [1985] Fam 92�� 104
Foley v Foley [1981] Fam 160�� 20
Forster v Forster (1790) 1 Hag Con 144�� 73, 78
Giacometti v Prodgers (1872) LR 14 Eq 253�� 89
Gilbey v Gilbey [1927] P 197�� 111
Gillett v Holt [2001] Ch 210, CA�� 203
Gow v Grant [2012] UKSC 29�� 207
Granatino v Radmacher [2010] UKSC 42 [2011] 1 AC 534�� 13–14, 19–20, 94
Gray v Gee (1923) 39 TLR 429�� 72
Greasley v Cooke [1980] 1 WLR 1306, CA�� 203
Greene v Greene [1916] P 188�� 84
GW v RW (Financial Provision: Departure From Equality)
[2003] 2 FLR 108�� 20
Hamilton v Hector (1872) LR 13 Eq 511�� 165
Handley v Handley [1891] P 124, CA�� 164, 167
Hanlon v Hanlon [1978] 1 WLR 592, CA�� 146–47
Haroutunian v Jennings (1980) 1 FLR 62, (1977)�� 143–44
Hart v Hart [2017] EWCA Civ 1306�� 241
Healing v Healing (1902) 19 TLR 90�� 131
Hill v Hill [1902] P 140�� 136
Hope v Hope (1858) 164 ER 644�� 78–79, 82, 88
Horniman v Horniman [1933] P 95�� 18, 110
Hunt v Hunt (1862) 45 ER 1168, 1171�� 82, 89
Hyde v Hyde (1859) 29 LJPM&A 150�� 165
Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130�� 73
Hyman v Hyman [1929] AC 601, HL�� 120
J v C [1970] AC 668, HL�� 170
J v C (Child: Financial Provision) [1999] 1 FLR 152�� 144, 146
James v Morgan [1909] 1 KB 564�� 141
Jane v Jane (1983) 4 FLR 712, CA�� 171

Jennings v Rice [2002] EWCA Civ 159 [2003] 1 FCR 501�� 203

Table of Cases xvii
Jessel v Jessel [1979] 1 WLR 1148, CA�� 121
Jones v Kernott [2011] UKSC 53 [2012] 1 AC 776�� 202
Joy v Joy-Morancho (No 3) [2015] EWHC 2507 (Fam)
[2015] 1 FLR 815�� 21
Juffali v Juffali [2016] EWHC 1684 (Fam) [2016] 4 WLR 119�� 111
Jussa v Jussa [1972] 1 WLR 881�� 171
Kershaw v Kershaw [1966] P 13�� 104
L v L (Financial Remedies: Deferred Clean Break) [2011]
EWHC 2207 (Fam) [2012] 1 FLR 1283�� 127
L v L [1962] P 101, CA�� 119
Lakin v Lakin (1854) 164 ER 159�� 77
Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA�� 19, 21, 198,
200, 220
Lilford v Glynn [1979] 1 WLR 78, CA�� 146
Lister’s Case (1721) 1 Str 478�� 74
Lynch v Knight (1861) 9 HL Cas 577�� 71–72, 87
M v M (Child: Access) [1973] 2 All ER 81�� 161–62, 173
MacLeod v MacLeod [2008] UKPC 64 [2010] 1 AC 298�� 94
Mann v Mann [1922] All ER Rep 777�� 89
March v March and Palumbo [1861–73] (1867) All ER Rep 522�� 110, 112
Marshall v Marshall (1879) 5 PD 19�� 70, 89
Matthews v Matthews [2013] EWCA Civ 1874 [2014] 2 FLR 1259�� 127
McCartney v Mills McCartney [2008] EWHC 401 (Fam)
[2008] 1 FLR 707�� 19
McQuiban v McQuiban [1913] P 208�� 89
Mesher v Mesher and Hall [1980] 1 All ER 126n�� 120, 126

Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151�� 21
Miller v Miller; McFarlane v McFarlane [2006] UKHL 24,
[2006] 2 AC 618�� 19, 106, 128, 192,
199–200, 233, 241
Mills v Mills [1940] P 124, 132, CA�� 119
Minton v Minton [1979] AC 593, HL�� 106, 119–21
Moore v Moore [1981] Fam Law 109�� 120
Mozley Stark v Mozley Stark and Hitchins [1910] P 190, CA�� 167–68
N v N [1928] All ER Rep 462�� 112–13, 116
Nanda v Nanda [1968] P 351�� 84, 91, 93
Nicklin v Nicklin CA, 15 May 1991, unreported�� 19
Nottidge v Ripley, The Times (London, 25 June 1849)�� 75
O’D v O’D [1976] Fam 83, CA�� 118
Oldroyd v Oldroyd [1896] P 175�� 84
Orme v Orme (1824) 162 ER 335�� 78, 80–81
Otway v Otway (1813) 161 ER 1092�� 110
Owens v Owens [2017] EWCA Civ 182 [2017] 4 WLR 74�� 83, 97, 227
Oxley v Hiscock [2004] EWCA Civ 546 [2004] 2 FLR 669�� 202
PG v TW (No 2)(Child: Financial Provision) [2014] 1 FLR 940�� 144–45
Place v Searle [1931] P 59�� 72
Preston v Preston [1982] Fam 17�� 111

xviii Table of Cases
Price v Price [1951] P 413�� 96
R v Greenhill (1836) 111 ER 922�� 165
R v Jackson [1891] 1 QB 671, CA�� 75
R v Leggatt (1852) 118 ER 29�� 74
R v Mead (1758) 96 ER 1182�� 82
R v R [1992] 1 AC 599, HL�� 81

Re A (Child of the Family) [1998] 1 FLR 347, CA�� 137
Re A and B (Infants) [1897] 1 Ch 786, CA�� 166–67
Re Agar-Ellis; Agar-Ellis v Lascelles (1883) 24 Ch D 317�� 162
Re B (An Infant) [1962] 1 WLR 550, CA�� 169
Re B (Contact: Stepfather’s Opposition) [1997] 2 FLR 579, CA�� 178
Re Cochrane (1840) 8 Dowl 630�� 74, 76
Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48, CA�� 178
Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727
(Fam) [2004] 1 FLR 1226�� 183
Re G (Parental Responsibility Order) [2006] EWCA Civ 745
[2006] 2 FLR 1092�� 21
Re H (A Minor)(Shared Residence) [1994] 1 FLR 717, CA�� 22
Re H (Contact: Domestic Violence) [1998] 2 FLR 42, CA�� 178–79
Re H (Minors)(Local Authority: Parental Rights)(No 3)
[1991] Fam 151�� 21
Re J (A Minor)(Contact) [1994] 1 FLR 729, CA�� 178
Re K (Contact: Committal Order) [2002] EWCA Civ 1559
[2003] 1 FLR 277�� 183
Re K (Minors)(Children: Care and Control) [1977] Fam 179, CA�� 170
Re L (Infants) [1962] 1 WLR 886, CA�� 169–70
Re L, V, M, H (Contact: Domestic Violence)
[2000] 2 FLR 334, CA�� 163, 179–80, 189
Re M (handicapped child: parental responsibility) [2001] 3 FCR 454�� 21
Re McGrath [1893] 1 Ch 143�� 167
Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, CA�� 178
Re P (Child: Financial Provision) [2003] EWCA Civ 837
[2003] 2 FLR 865�� 145
Re Price (1860) 175 ER 1052�� 74, 76
Re S (An Infant) [1958] 1 WLR 391�� 169
Re S (Contact: Promoting Relationship with Absent Parent) [2004]

EWCA Civ 18 [2004] 1 FLR 1279�� 21–22
Re W (An Infant) [1964] Ch 202, CA�� 171
Re W (Contact: Joining Child as Party) [2001] EWCA Civ 1830
[2003] 1 FLR 681�� 186
Roberts v Roberts [1970] P 1�� 138
Robertson v Robertson and Favagrossa (1883) 9 PD 94�� 107
Russell v Russell [1895] P 315�� 83
Russell v Russell [1897] AC 395, HL�� 83
S (BD) v S (DJ)(Children: Care and Control) [1977] Fam 109, CA�� 170
S v S [1962] 1 WLR 445, CA�� 169
SA v PA (Pre-Marital Agreement: Compensation) [2014] EWHC 392 (Fam)
[2014] 2 FLR 1028�� 199

Table of Cases xix
Schlesinger v Schlesinger [1960] 1 All ER 721�� 112
Scott v Scott (1865) 164 ER 1458�� 82, 89
Scrimshire (otherwise Jones) v Scrimshire (1752) [1558–1774]
All ER Rep 554�� 86
Seaver v Seaver (1846) 164 ER 1156�� 78–79, 82
Seddon v Seddon (1862) 2 Sw & Tr 640�� 164
Sharp v Sharp [2017] EWCA Civ 408�� 129, 200, 233
Shearn v Shearn [1931] P 1�� 107
Shelley v Westbrooke (1821) Jac 266�� 225
Sidney v Sidney (1865) 164 ER 1485�� 109–11
Smethurst v Smethurst [1978] Fam 52�� 18
Squire v Squire and O’Callaghan [1905] P 4�� 110, 114
SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam)
[2015] 2 FLR 1124�� 30, 125, 127–28
Stack v Dowden [2007] UKHL 17 [2007] 2 AC 432�� 202

Swift v Swift (1865) 55 ER 637�� 165
Symington v Symington (1875) 2 Sc & Div 415, 423, HL�� 165–66, 172
Thomas v Roberts (1850) 64 ER 693�� 75
Thorner v Major [2009] UKHL 18 [2009] 1 WLR 776�� 203
Trippas v Trippas [1973] Fam 134, CA�� 118
Trustee in Bankruptcy of Claridge v Claridge and Another [2011]
EWHC 2047 (Ch) [2012] 1 FCR 388�� 105
V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam)
[2004] 2 FLR 851�� 183
Wachtel v Wachtel [1973] Fam 72, CA�� 117–19, 123
Wakeham v Wakeham [1954] 1 WLR 366, CA�� 171
Walter v Walter [1921] P 302�� 83
Ward v Ward [1947] 2 All ER 713�� 104
Weldon v Weldon (1883) 9 PD 52�� 80–82
Wellesley v Beaufort (1827) 2 Russ 1,�� 225
Wellesley v Wellesley (1828) [1824–34] All ER Rep 189, HL�� 134, 225
Westmeath v Westmeath (1821) 37 ER 797�� 82
White v White [2001] 1 AC 596, HL�� 63, 106, 111–12,
126, 128, 197–99
Willoughby v Willoughby [1951] P 184�� 168
Winchester v Fleming [1958] 1 QB 259�� 72
Wood v Wood [1891] P 272, 276–7, CA�� 114
Wyatt v Vince [2015] UKSC 14 [2015] 1 WLR 1228�� 15
Wyatt v Vince (No 2)(Settlement: Publicity) [2016] EWHC 1368 (Fam)�� 15
AUSTRALIA
Dridi v Fillmore [2001] NSWSC 319�� 212–13
Drury v Smith [2012] NSWSC 1067�� 209
Geoghegan v Szelid [2011] NSWSC 1440�� 209
Hayes v Marquis [2008] NSWCA 10�� 212
Kardos v Sarbutt [2006] NSWCA 11�� 218

McCarthy v Tye [2015] NSWSC 1947�� 209

xx Table of Cases
McKenzie v Storer [2007] ACTSC 88�� 210, 216, 218,
221, 245
Re Estate of Ham (dec’d): Bogan v Macorig [2004] NSWSC 993�� 209
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964�� 209, 214,
216, 218
Skarica v Toska [2014] NSWSC 34�� 213
Smith v Daniels [2012] NSWSC 604�� 209
Taddeo v Taddeo [2010] SADC 61�� 195, 209, 214, 216, 220
EUROPEAN COURT OF HUMAN RIGHTS
Burden v United Kingdom [2008] 47 EHRR 38�� 196, 214
Elsholz v Germany (App 25735/94) (2002) 34 EHRR 58�� 162
USA
Doyle v Doyle 5 Misc 2d 4, 7 (NY Misc 1957)�� 98, 100

Table of Legislation
ENGLAND AND WALES STATUTES
Administration of Justice Act 1982 s 2(a)�� 72
Child Support Act 1991�� 121, 133, 151, 228
s 1(1)�� 148
s 3(1)(2)�� 148
s 6�� 150
s 9(1)�� 157
s 9A�� 157
Sch 1, para 7�� 149
Child Support, Pensions and Social Security Act 2000

Sch 3�� 148
Children Act 1975 ss 85, 86�� 171
Children Act 1989 �� 8, 148, 163, 177, 187
s 1�� 237
s 1(1)�� 140
s 1(2A)�� 189, 231
s 1(3)�� 16
ss 11A–11P�� 184
ss 11J–11P�� 184
s 4(1)(a)�� 142
s 8(1)�� 190
s 31(2)�� 131
Sch 1�� 144
Sch 1 para 3�� 145
Sch 1 para 10�� 157
Children and Adoption Act 2006 �� 183, 185
ss 1–5�� 184
ss 4, 5�� 184
Children and Families Act 2014 �� vii, 169
s 11�� 189
s 12�� 190
s 18(2)(a)�� 236
Children and Young Persons Act 1933, s 1�� 131
Civil Partnership Act 2004,
s 44�� 95
s 50 �� 95
Custody of Infants Act 1839 (Talfourd’s Act)�� 134, 164
Custody of Infants Act 1873�� 134, 165
s 2�� 166
Divorce Reform Act 1969�� 48, 113, 197

xxii Table of Legislation
Domestic Proceedings and Magistrates’ Courts Act 1978�� 103, 105
s 5�� 145
s 8�� 171
s 38�� 136
s 88�� 171
Ecclesiastical Courts Act 1813�� 77
Family Law Act 1996
s 1�� 236
s 30�� 96
s 36(6)(e)�� 22
s 41�� 22
Guardianship Act 1973
s 1(3)�� 171
Guardianship of Infants Act 1886
s 5�� 166
Guardianship of Infants Act 1925�� 168
Law Reform (Miscellaneous Provisions) Act 1949, s 5�� 101, 138
Legitimacy Declaration Act 1858�� 86
Married Women (Maintenance in Case of Desertion) Act 1886, s 1(1)�� 103, 135
Married Women’s Property Act 1870 ss 13, 14 �� 132
Married Women’s Property Act 1882 �� 72
ss 2 20, 21�� 132
Matrimonial Causes Act 1857�� 47, 77, 87, 107, 135
s 17�� 79, 88
s 22�� 108
s 35�� 165
Matrimonial Causes Act 1878�� 75, 85

s 4�� 101
s 4(2)�� 165
Matrimonial Causes Act 1884�� 82
Matrimonial Causes Act 1923�� 88, 91
Matrimonial Causes Act 1937�� 91
s 11�� 101
Matrimonial Causes Act 1963 s 5�� 108
Matrimonial Causes Act 1973�� 117, 124, 140
s 1(2)(c),(e)�� 94
s 3�� 47
s 18(1)�� 94
s 25(2)�� 16, 139
s 25(2)(f)�� 197, 199
s 25A(3)�� 108
s 27�� 103
s 29�� 145
s 52�� 136
Matrimonial and Family Proceedings Act 1984 s 3(1), (4) �� 108, 124, 140
Matrimonial Proceedings and Property Act 1970 s 20�� 93, 106–08, 117
Matrimonial Proceedings (Children) Act 1958, s 4�� 136

Table of Legislation xxiii
Matrimonial Proceedings (Magistrates’ Courts) Act 1960 s 16(1)�� 101–02, 136
Poor Law Amendment Act 1834�� 132
s 57�� 135
Poor Law Amendment Act 1844�� 133
Poor Law (Amendment) Act 1868, s 33�� 132
Poor Relief Act, 1601, s 6�� 131
Social Security Administration Act 1992

s 105 �� 105
s 106�� 132
Summary Jurisdiction (Married Women) Act 1895�� 75, 85
s 4�� 101, 136
Supreme Court of Judicature (Consolidation) Act 1925 s 185�� 91
Vagabonds Act 1609 s 7�� 133
Welfare Reform Act 2009, s 9 (3)(b), Sch 7 Part 1�� 105, 132
Welfare Reform Act 2012, s 138�� 157
AUSTRALIA
ACT
Domestic Relationships Act 1994�� 208, 210
s 15�� 218
s 19�� 218
CTH
Family Law Act 1975 Part 1, s 4A; Part VIIIAB�� 209
s 90SF�� 218
s 90SM �� 218
NSW
De Facto Relationships Act 1984 renamed Property (Relationships) Act 1984 �� 208
s 5�� 212
s 20�� 218
s 27�� 218
Property (Relationships) Legislation Amendment Act 1999�� 209
SA
Domestic Partners Property Act 1996 s 11�� 218
Family Relationships Act 1975 (SA) ss 11, 11A�� 208
s 11B(3)(e)�� 215
TAS
Relationships Act 2003 s 11�� 215
s 40�� 218

s 47 �� 218

xxiv Table of Legislation
VIC
Relationships Act 2008 s 5�� 215
s 45�� 218
s 51�� 218
INDIA
Maintenance and Welfare of Parents and Senior Citizens Act 2007�� 193
JAMAICA
Maintenance Act 2005�� 193
NEW ZEALAND
Property (Relationships) Act 1976�� 207
SCOTLAND
Family Law (Scotland) Act 2006 s 28�� 207
SECONDARY LEGISLATION
Child Support Fees Regulations 2014 (SI 2014/612)
Ref 4�� 157
Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677)
reg 50�� 149
reg 71�� 152

Obligation and commitment in family law

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