Family Living and Family Law

This post has been contributed by Professor Alison Diduck, Module Convenor for Family law.

Welcome to the second and last blog for this year. I hope you are enjoying your studies in Family Law.

As you know, the wheels of law reform turn slowly and I thought I’d review those wheels in the family law context drawing upon a speech delivered by Sir James Munby, President of the Family Division at the University of Edinburgh earlier this month. You can see the whole speech here: https://www.judiciary.gov.uk/wp-content/uploads/2018/03/speech-pfd-changing-families-edinburgh.pdf 

The President reflected upon changes in family living over the years and family law’s efforts to stay up to date with those changes. Indeed, given that families and the way they organise their lives have changed so dramatically in the last generation, it is not surprising that we have seen many changes to family justice, but also that many more remain urgent. As the President said,

Society has changed, is changing and will no doubt continue to change at a quite remarkable rate, and it is essential that our law – our family law in particular – keeps pace, as it does, with these societal realities. The fact is, as the daily business of the Family Division so vividly demonstrates, that we live today in a world where the family takes many forms and where surrogacy, IVF, same-sex relationships, same-sex marriage and transgenderism, for example, are no longer treated as they were in even the quite recent past.

Most of the reform recently, as you know, has been procedural, spurred by Norgrove’s Family Justice Review and includes the creation of the single Family Court, increasingly robust case management by the court and increased use of digital and online technology, such that online divorce is now active and planning is underway for online financial remedies cases and both public and private child law cases. Of course, the increase in litigants in person resulting from the LASPO 2012 has also changed the way many courts deal with cases that come before them.

And there have been reforms to legal doctrine itself, sometimes by the courts, and sometimes by statute.  An example of the law keeping up with changes to family life is the way that children’s welfare is now understood. As the president says, referring perhaps to his judgement in Re G [2012] EWCA Civ 1233

The Children Act 1989 is a remarkably skilfully planned and drafted statute, which has stood the test of time with great success – but that is in large part because we are not tied to the world of 1989 but can assess things and evaluate what is best for children by reference to the rather changed world of 2018.

He highlights also changes in how the law treats women in families, but notes with concern how recent they are.

Not until 1992 was the husband’s immunity from prosecution for rape finally exploded as the absurd fiction it had always been [in R v R [1992] 1 Ac 599]. Not until 2000 was equality identified as the core principle of ancillary relief [in White v White [2001] 1 AC 596] … And not until 2010 did the Equality Act 2010 abolish the common law rule that a husband must maintain his wife and consign to history the final discriminatory relics of our property law (the presumption of advancement) – though it is to be noted that neither of these provisions has yet been brought into force!

And as the President says, if these changes were slow in coming, reform of the law in relation to same sex families was even slower.

Only in 2004 was civil partnership introduced by the Civil Partnership Act 2004. And only in 2013 was Sir James Wilde’s definition of marriage superseded by the extension of marriage to same-sex couples by the Marriage (Same Sex Couples) Act 2013.

While law may have been late to acknowledge social change, do you think that it has now done enough to keep up with changes in family living? The President does not; he mentions three areas in which he believes there is more to do. The first is cohabitants’ rights:

The Law Commission has recommended reform. Thus far Governments have failed to act. Reform is inevitable. It is inconceivable that society will not in due course have righted this injustice, but how many more women are to be condemned to injustice while our masters delay, constantly persuading themselves, presumably, that the time is not yet ripe?

The second is the law of divorce – as he says, ‘we await the outcome of the pending appeal [in Owens v Owens] to the Supreme Court with eager anticipation’ – and the third is the area of financial relief on divorce, although he acknowledges that views on the direction the reform should take are divided.

Whatever happens, it will be interesting to see how or if family law leads or follows social change over the next few years!