A spurious argument for reform

family law

The things I do for Stowe Family Law. Breaking my rule never to ‘play along’ with anyone who chooses to put their content behind a paywall, I registered with The Times, albeit only for two free articles, in order to read an article by former High Court judge Sir Paul Coleridge on the issue of family law reform, which appeared in the paper on 1 January, and seems to have caused a bit of a stir in family law circles.

Having read the article I’m not sure why I bothered.

As someone far more learned said on Twitter, the article is utterly patronising. Sir Paul’s argument is, as the title of the article proclaims, that family law is in desperate need of reform, because out-of-date legislation is penalising “the lower-income groups” in society. While “the well-heeled, metropolitan middle classes” are still getting married, as they always did, the lower echelons “have to a very significant extent turned their back on marriage.” This is a disaster for them, argues Sir Paul, as “uncommitted cohabiting relationships” are “the chief driver of family breakdown, with its attendant devastating fallout”, especially for any children involved.

The answer to this “family chaos”, says Sir Paul, is to “fashion laws that encourage those who drift into uncommitted relationships in which children are expected, to think, plan and enter into a legal commitment.” Sadly, Sir Paul does not explain what form these wonderful new laws will take, only saying that the precise details of the reform “remain on the table.” He does, however, indicate that the Marriage Foundation, of which he is the Founder and Chairman, supports The Times’s campaign for five reforms to family law: the introduction of no-fault divorce; a reform of the way maintenance is awarded by the courts between divorcing couples; giving prenuptial contracts the force of statutory law; granting some legal rights to long-term unmarried couples; and extending civil partnerships to heterosexual couples who prefer that option to marriage.

OK, let’s briefly go over all of this.

Sir Paul describes marriage as the “gold standard” when it comes to relationships. If that is the case, then why are the less well-off satisfying themselves with a lesser standard? Surely, everyone in society wants the best? Is it because they have been fooled into believing that marriage is no longer the gold standard, or is it, as it is only too easy to conclude by reading the article, that these poor people are too stupid to know what is best for them? Either way, as I mentioned earlier, this is utterly patronising towards the less well off. Simply because a person is not part of the “well-heeled, metropolitan middle classes” does not mean that they are incapable of making informed choices regarding their lifestyles. The reasons why people choose not to marry are many and complex, and for the vast majority of people have nothing to do with ignorance of what they are letting themselves in for.

But even if we accept that marriage is the “gold standard”, and that the less well-off are choosing a lesser option, Sir Paul falls desperately short when it comes to what reforms will persuade these poor misguided souls to change their ways, as I indicated earlier. None of the five reforms proposed by The Times seems likely to do the trick. In fact, it is difficult to see what reforms to family law would make much of a difference, unless they involved huge financial incentives to marriage, of the scale that no government could possibly countenance.

The simple fact is that society has moved on from the days when marriage was seen as the only, or the best, option. Attempting to engineer a return to those days by the use of family law reforms is doomed to failure. It is not the job of family law to engineer some ideal of a ‘perfect’ society. Family law must respond to the changing times, not attempt to be an enabler of change. This is what happened back in the 1960s when (as Sir Paul mentioned) the last great reform of divorce law took place. That reform, which made divorce considerably easier, was simply responding to the desire of many to find a better and quicker way out of unhappy marriages – it was not designed, as some would have us think, to engineer a reduction in the status of marriage.

I had hoped that accessing and reading Sir Paul’s article would leave me better informed, even if (as is usually the case) I did not agree with him. Alas, my hopes were dashed. I do agree that family law is in need of reform (and I do have a good idea of what reforms are required), but not for the spurious reason Sir Paul gives.

Photo by slgckgc via Flickr under a Creative Commons licence.

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

Nick Langford - January 4, 2018 at 7:39pm

Perhaps Coleridge is to be applauded for caring about those for whom nobody else seems to care. For many people, myself included, family breakdown is the greatest disaster facing this country. People who would formerly have married, 90% of whose grandparents would have married, are now not marrying (about 24% still do) and are choosing cohabitation instead. Meanwhile, around 87% of those in higher income brackets are still marrying. The reason this matters is that the probability of a child’s parents still being together when he is 15 is 75% if they are married, but only 7% if they cohabit. Marriage is the public declaration of commitment; cohabitation is the absence of committment – usually because only one party wants to marry and the other doesn’t. It is patronising to think that this doesn’t matter: that these people don’t matter. It is not unreasonable to try to understand what has gone so catastrophically wrong and to put it right. These people may not be ignorant, but they have certainly been lied to and decieved by those who tell them that family structure isn’t important. Society hasn’t “moved on”; nobody has found a better solution than marriage; society has been betrayed and is collapsing, and though Coleridge may be hazy on the cure, he is at least pointing in the right direction.

Stitchedup - January 5, 2018 at 10:09am

I’ve not read the article so can only speculate, but it would seem reasonable to assume that “the introduction of no-fault divorce; a reform of the way maintenance is awarded by the courts between divorcing couples; giving prenuptial contracts the force of statutory law” is designed to reduce false allegations of abuse, an end to the absurd concept of life-long maintenance (generally awarded to women), and introduce the ability to protect ones assets so that, for men generally, there is life after divorce. Difficult to see fault in the concept really, and I agree with Paul Coleridge that stable, long term, committed relationships are better for children and marriage, as an institution, encourages that.

Stitchedup - January 5, 2018 at 10:19am

“As someone far more learned said on Twitter”…. did this person happen to be a member of the legal profession by any chance??? There are many “learned” people out there that are not members of the legal profession, I’ve had the pleasure of working with some truly world class people who many a judge couldn’t touch intellectually. Their opinions should carry equal weight, perhaps more weight as they do not have the vested interest in divorce that legal professionals have, or perhaps do not accept the feminist mantra that relationships and male spouses/partners are disposable assets that you cash-in when you get bored or are in the midst of a mid-life crisis.

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