A spurious argument for reform
By:3 commentsJanuary 4, 2018
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Sir Paul’s argument is, as the title of the article proclaims, that family law is in desperate need of reform, because out-of-date legislation is penalising “the lower-income groups” in society.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.
January 4, 2018
Categories: Family Law