Reform of family law is not a party political thing

maintenance payments and a new partner

I confess that I don’t often read The Conservative Woman. For some reason I can’t fathom, it is simply not on my reading list. However, the other day I was alerted to an article in said publication entitled “Tories must halt this ‘marriage lite’ option”. I’ll come to the specifics of what the article said in just a moment, but it got me thinking more generally: despite what some would have you believe, the whole debate about reform of family law is not a party-political thing, with the conservatives (with a small ‘c’) favouring the status quo, or even a return to more stricter times, and the liberals (with a small ‘l’) seeking to destroy the old institution of marriage.

Characterising the argument in such terms is to do a disservice to those calling for reform, and to the argument itself. The reformers do not hold a single political allegiance – they are calling for reform simply because they believe that that is the right thing to do. They do not seek to destroy old institutions, just to modernise them. They are certainly not all liberals or left-wingers. Indeed, many of them are most definitely Conservatives, with a big ‘C’.

And lowering the argument to the level of a party-political debate cheapens it by reducing it to a point-scoring exercise between the two sides. Marriage, the way in which people have relationships with one another, and the way in which those relationships are brought to an end transcends political divides, and deserves open debate, free from tacky ideological bickering. And suggesting that family law reform is a political thing is at best disingenuous, and at worst a cynical ploy to steer the debate one way or the other.

The two big issues being debated at present are the introduction of no-fault divorce, and giving basic property rights to cohabitees when their relationships break down. Those who support these reforms do so because they see the harm caused by the existing laws (or, in the case of property rights for cohabitees, the lack of them), not because reform fits in with their political agendas or beliefs. Fault-based divorce causes unnecessary animosity and can force spouses to remain in marriages that have clearly died. Lack of property rights for cohabitees is inherently unfair and can lead to homelessness and poverty. These are things that I’m sure we can all agree are bad, no matter what our political persuasion.

Which brings me back to that article in The Conservative Woman. The main thrust of the article was that extending civil partnerships to all and giving property rights to cohabitees would mean that civil partners and cohabitees would enjoy similar ‘rights and privileges’ to married couples, without “the responsibility of monogamous, lifelong commitment.” This, the article says, would mean that “such families are inherently unstable environments in which to raise children.”

The problem with seeing an issue through ideological-tinted glasses is that it can cloud the vision, replacing facts with preconceptions. And if you believe that change is by definition bad (other than change going back to how things were at a previous time) then you will mistrust the motives and aims of the reformers. Here, the article falls into two traps: firstly the preconception that only those who marry believe they are entering into a lifelong commitment, and secondly, that the reformers are proposing that cohabitees should have similar rights to married couples.

It is, of course, quite possible to enter into a lifelong commitment without getting married. Certainly, civil partners will have that intention, and would I’m sure be quite offended if anyone suggested otherwise. But cohabitees can also enter relationships with the intention that they will be for the rest of their lives. It is utterly patronising to suggest that only the signing of a marriage certificate can signify commitment.

And as for the issue of property rights for cohabitees, no one is suggesting that they should have similar rights to married couples, or to those in civil partnerships. The opponents of this reform know, or should know, this very well, but they conveniently ignore it. The reformers are not ideologues who want to destroy marriage, they are simply people who see a deep unfairness, and want to do something about it. How can it be right, for example, that someone can commit a large proportion of their life to running a home and bringing up a family, and then come out of it with nothing?

Party politics distorts and cheapens the debate on family law reform, and is not the motivation of the reformers. I suspect that it may be asking too much, but it really should be kept out of the discussion.

You can read the article in The Conservative Woman here.

Image credit: Colin Kinner via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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3 comments

Spike Robinson - January 3, 2018 at 7:15pm

The obvious fallacy in their argument is the assumption that there’s any balancing obligation or responsibility towards monogamy or commitment. There’s neither. Our marriage laws have meaning only in the breach – divorce or separation. The law concerns itself entirely with obligations on the dissolution of a relationship. There are absolutely no legal obligations to commit to the marriage or behave monogamously or even decently. It’s hard to understand why “Conservative Woman” would be labouring under such an illusion.

Spiro Ozer - January 4, 2018 at 9:57am

“Lack of property rights for cohabitees is inherently unfair and can lead to homelessness and poverty. These are things that I’m sure we can all agree are bad, no matter what our political persuasion.”

No, we can’t actually. Lack of property rights for cohabitees is *not* inherently unfair, because both parties have agreed to the arrangement from the outset. Granting property rights to cohabitees *would* be intrinsically unfair because it would allow one party to gain an interest in another’s property without the latter’s consent.

Spike Robinson - January 4, 2018 at 1:40pm

I agree with Spiro. We are dangerously close already to a situation where two adults cannot even keep their property separate by prior consent. The thinking on this issue is like a goldfish bowl. As usual we ignore anything outside our own narrow cultural assumptions. There are plenty of jurisdictions where couples can elect whether they want community of property, or not. Only the English speaking countries impose this regardless of the wishes of the parties. Attempting to further extend this imposition is an offence against rights, not an extension of rights.

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