Why I am horrified by the Centre for Social Justice’s proposals
Every Family Matters, a report prepared for the Conservative Party by Iain Duncan Smith’s ‘Centre for Social Justice’ think tank, received a good deal of press attention at the weekend.
The report recommends a compulsory, three-month “cooling off” period for couples who were set upon divorce. It proposes the founding of “family relationship hubs”: a nationwide network of counselling centres at which families would receive advice before and after marriage. It also recommends that couples who are living together should not be afforded the same legal rights as those who are married, arguing that “healthy marriages build healthy families”.
I read this report from cover to cover – and its conclusions horrified me. I note that my sentiment is shared by others.
Ironically, these proposals are throwbacks to Victorian times – at a time when the Conservative Party is at pains to present itself as modern and progressive!
I have seen the “Victorian Woman” described thus: She was a perfect lady, who did not work, (except for charities); she did not earn (except perhaps for literary and artistic work); she ran her household efficiently, and she found fulfillment bringing up her husband and children. She could have some education, but not much, and avoided involvement in politics or argument with her husband.
“Be faithful unto death”, intoned one Victorian sampler that I saw in a museum. Those words seem to be applicable here. The old mindset is applied to divorcing couples, ostensibly for the benefit of their children. The hapless children apparently deserve to have their parents living together in the same house, regardless of the misery, the arguments, the infidelity or the trauma.
The introduction of a three-month “cooling off” period would make divorce more difficult. The aim: to encourage couples to stay together. This begs the question: does the fact of marriage hold couples together? I don’t think it does. Moreover, I am unconvinced that Australian-style “family relationship hubs” would have the desired effect. The husbands and wives who come to see me and instruct me to proceed do not do so at the drop of a hat. They have already spent plenty of time “thinking”.
However, the authors of this report would force you to do some more “thinking” – even if you have endured a lengthy period of soul-searching and every day is a misery. Even if, during this “thinking” period, you go home to your lover every night. Even if you loathe your spouse, or if both of you know that there is simply nothing left.
Who, in this profession of mine, seriously thinks that attendance at a “family relationship hub” will prevent a couple’s marital breakdown? Once the love has gone, it has gone. Nothing can restore a relationship when there is little left to work with. These plans are expensive, outdated, wishful nonsense.
The report proposes a more rigid matrimonial property regime, with a “more narrow definition” of what constitutes a party’s “reasonable needs”.
This would mean that the fairness and discretion with which a judge currently allots assets to cover genuine need – although in truth, 99 out of 100 cases barely stretch even that far – is likely to follow the European models, whereby property is strictly divided. Yet these models are inferior to our own, because of their known unfairness to the weaker parties.
So why the recommendation? The authors are clearly familiar with a small number of high profile and largely irrelevant cases in central London. However, they are not so obviously familiar with what is happening in the rest of the country, where it is rare to encounter “assets surplus to need”. I would add that it is rarer still for judicial discretion to be applied to achieve anything other than fairness, when it is known that divorce can often leave women at a disadvantage. On the strength of these proposals, they would fare worse still.
Initially, the new regime would be implemented away from the courts. There would be ‘catch all budgets’ to complete. Forms to fill in. Rules to follow. Perhaps tribunals would be set up to make strict decisions based on strict rules.
It reminds me of the fiasco of the CSA. The Conservatives got it disastrously wrong then. Their Family Law Act 1996, which was a public relations disaster because much of it was confused, unworkable and never brought into force, is expressly lauded in this report.
Children and unmarried parents
This report highlights the plight of children born to single women out of wedlock. It describes how they are more likely to take drugs, commit crimes and live in poverty, if not in care of their local authorities.
However, the authors argue that unmarried couples – and by extension, their children – do not deserve the legal remedies afforded to those families that have embraced the “utopia” of marriage.
In other words, if you are a product of an unmarried relationship, the authors are sweeping you under the carpet. If a couple divorces, their children must be brought to the court’s attention. The children’s rights and welfare are prioritised; indeed, there may not be a divorce until the court is satisfied that suitable arrangements for the children have been made.
However if a couple’s relationship breaks down and they are not married, that couple’s children do not have to be brought to the court’s attention at all. They are all but invisible. They deserve better – and the authors of this report should know better.
The termination of a marriage is regulated by law. When there is no marriage, there is no regulation. Can that be right morally, socially or legally? It cannot.
21st century families
Some of today’s families are headed by same sex parents, with or without children, who may or may not be biologically related to their sons and daughters. In these families and others, children may be adopted nationally or internationally and have a different ethnic or cultural background. Families may include step-parents and step-siblings. There may be step-grandparents and step-cousins. Parents and guardians may be openly gay, heterosexual or bisexual. We have the most complex families ever known, because our society has changed beyond recognition. There is no longer any social stigma in cohabitation. Women are no longer obliged to depend upon husbands for the procreation of children or for an income, as in Victorian times.
Today, most couples live together before marriage and both work. They have children when it suits them, often before marriage. Some never trouble to marry, for varied and often complex reasons. Some see no need to disturb a relationship that works well. Others see it as their right not to marry. Some are legally prevented from marrying. Others are unmarried because their partner refuses to; it is too trite to say “walk away”, because we are human beings with feelings and emotions. For such partners, additional factors may also come into play: if there are children, for example, or if the weaker party has no income, capital or pension of their own.
Right now, millions of couples are cohabiting. The law in Scotland provides for cohabiting couples; in the rest of the United Kingdom, however, unmarried couples who separate fall below the court radar. At present, despite the recommendations of the Law Commission, despite various, failed private members’ bills in Parliament and despite the proliferation of cohabiting couples and children, there is no law to regulate the end of such relationship and to attend to these couples’ children.
I am married and I advocate marriage for those who wish to commit in that way. But I am also prepared to recognise that everyone has the right not to do so. I believe that the law should be available to all families, not just the select few – and certainly not the innocents who currently “make do” with the odd CSA cheque and a hotch-potch of inadequate legislation.
Regular readers of this blog will be aware of my belief that family law should strive to achieve social justice for all. My fear is that if the Conservative Party wins power and adheres to the Centre for Social Justice’s report, the Victorian era will return to British politics. Everything that can be done must be done, to prevent this from becoming Conservative Party policy and ultimately the law.
A final note: if you click the link at the top of this post to read the think tank’s proposals in full, you will observe that the Every Family Matters report is “Supported by the Doha International Institute of Family Studies and Development”. Doha, of course, is the capital of Qatar: a country in which women continue to “face discrimination in law and in practice”, according to Amnesty International. Perhaps this choice of supporter is a coincidence.
Image credit: smoorenberg.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
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