Laws of Love

I found myself listening to a fascinating programme on Radio 4 this morning entitled What is a Wife?

The programme explored the changing trends in marriage and indeed whether marriage has a future in the 21st Century. It’s certainly true that marriage rates are dropping and co-habitation is increasing, but the programme suggested (as well as raising various humorous takes on marriage), that in fact in 25 years only 10% of the country may be in marriage and instead there may be renewable contracts.

Particularly when Valentines Day is only just behind us, it was surprising (and indeed somewhat refreshing) to hear such a non lovey-dovey take on marriage. That said, of course this country’s political parties appear desperate to support ‘the [married] family’ at the moment and it does appear that the stage is set for yet more controversy. The documentary raised the issue of parenting having been divorced from marriage and this scene which is evidenced in family courts up and down the country on a daily basis  is certainly the root of the politicians’ interest in it all.

Is marriage heading for the rocks? I suspect not as, given I’m something of a romantic (and indeed an engaged romantic!), I believe there will always be a place for the ‘mystical’ side of marriage. However, what people must realise is that whilst marriage may be seen as an outdated tradition and divorce law is chaotic, sadly i legal terms cohabitation law is potentially even more of a mess.

PS - One wonderful thing about the documentary was the title music - “Housewife’s Alphabet” by Peggy Seeger, well worth 79p! 

The Times published today the story of Debbie Purdy, an MS sufferer who went to the High Court seeking clarification of what may happen to her husband if he were to assist her in travelling to Switzerland to commit suicide when her life became intolerable. Ms Purdy’s claim was against the DPP / CPS for not having issued detailed guidance as it has in the cases of domesic violence and football-related crimes.

Sadly the High Court ruled that the claim was not made out as though no specific guidance is available (and it certainly is not), the general guidance by way of the Act and normal prosecuting guidelines are such as to provide for Ms Purdy’s human rights (seemingly despite the fact there is no straight answer!). Leave to appeal to the Court of Appeal was granted so the case may not be over, however the Judges concluded by stating that it is for Parliament to act.

The difficulty with this is that controversial matters such as assisted suicide or cohabitation are very unlikely to ever receive proper parliamentary consideration. This issue is particularly pertinent to family lawyers as of course may ‘family law’ issues often fall within the politically sensitive arena. Cohabitation reform has been needed for many years and even when it was referred to the Law Commission they at first said it must be a matter for Parliament and no fresh legislation has yet emerged.

It does make you wish for an alternative method of legislating these areas where political hot potatoes are forever passed around and the law becomes massively outof date until judicial activism eventually fills the gap. Respecting Parliament is all well and good (and indeed proper), but Parliament must stop ducking issues and have the tough debates that are needed to update the statute book.

I see from the BBC website that Mr Justice Coleridge has weighed in to the debate on the changing nature of family life in the UK and the growing legal-aid crisis. The Western Circuit Family Division liaison judge was speaking at Resolutions’ annual conference in Brighton and appears to have given a headline-grabbing speech.

 Thanks to the BBC article and a Resolution News Briefing it is clear that this well-respected figure was not mincing his words.

Practitioners will be pleased to see Sir Pauls’ support for their current plight with him noting that, “the family justice system in this country has been and is being mismanaged and neglected by government”. Equally the Judge is reported as having urged policymakers to, “Stop chipping away at the family justice system and trying to have it on the cheap”.

Coleridge J also drew an ineresting comparison: “There has never been a greater need for the public to have access to a lawyer with speacialist family law and family justice experience than now. They are as vital a commodity in our national life as the local GP. Indeed their tasks are not dissimilar. When a family is going through crisis whether it be medical or psychological or legal, caused by family collapse, the first port of call is and should be the local GP if it is medical, and the local family lawyer, solicitor and barrister, if it is legal.”

Mr Justice Coleridges’ comments will be welcomed by practitioners who are rapidly being forced out of publicly funded family law owing to the growing cuts and an increasingly unprofitable sysyem which, though family lawyers may be committed to, other partners in mixed firms are not prepared to stomach.

The Judge also somewhat self-interestedly referred to the problems faced by the courts due to under-resourcing and the delays flowing from this. This will certainly be familiar to practitioners. Last week I tried to list a 5 day final care hearing and the earliest firm fixture was at the tail end of November - the system simply can not keep up, despite dedicated and expert judges and listing officers, and this is undoubtedly to the detriment of those resorting to the courts in their time of need.

The papers will probably however, attach rather less importance to these comments on the system, than on those made by Sir Paul alikening the threat from the growing number of family breakdowns to the dangers of climate change. The Judge urged the government to address the issue head-on and do something about it, mkaing it plain in the process that the current conservative plans are no answer either, “I am not talking about tinkering with tax rates for married couples. That is irrelevant and ineffectual window dressing”. The Judge also appears to ahve gone out of his way not to criticise single-parent families though we shall have to wait and see how his observations are portrayed in the press.

Finally the Judge urged a re-appraisal of of much current law including that relating to cohabitants, divorce and ancillary relief, noting that the social mores of the country today are totally different to those applicable when the applicable laws in those areas were last addressed.

Will the government act on any of the issues raised in this interesting speech? With the economy going south and the politcal race hotting up, family law - which is far more controversial than criminal law - is unlikely to be at the centre of any manifestos. Still, at least Sir Paul’s comments will add a welcome spotlight on the current mess - assuming that is, that the media give a fair representation of the Judge’s words.