Family Law

Speaking a couple of weeks ago Sir Paul Coleridge described our divorce and matrimonial finance laws as "a dead parrot". Law reform since 1970 has been, he said "by inertia, stealth, common sense and the laws of cricket."

His speech, which can be found here, warrants reading by practitioners and politicians alike.

The thrust of Sir Paul's argument is that whilst the impact of our body of family law touches at some time or other on the lives of nearly all of society, in the field of divorce and matrimonial finance in particular our laws are out of date and no longer fit for purpose; indeed the last comprehensive Parliamentary reform took place in 1971 on the basis of the findings of an inquiry by a Royal commission which had sat 20 years earlier.

In the intervening period since the Matrimonial Causes Act was implemented it has been left to senior members of the judiciary to modify the law to reflect societal changes (and, sadly, in some cases ignore those changes). But, of course, judicial decisions are not debated in the way that legislation is and as a result, according to Sir Paul, "changes to family law property rights have been created, fashioned and introduced by the courts and judges largely unnoticed by the general public."

The most attractive of Sir Paul's arguments, as far as I'm concerned, is that whilst "fairness" is the measure by which family cases are decided, what is fair today wasn't fair in 1973 and most certainly wasn't fair in 1950 - so what exactly does "fairness" mean in 2011?

Given that the concept of fairness is so elastic, how can it be that we have left it to the senior Judiciary to authoritatively decide that question rather than Parliament?

The answer, I'm afraid, lies in political trepidation.

The last Government to approach this subject was almost brought down by it. Even then, once John Major's Government had managed to push through its Family Law Bill, only the provisions relating to personal protection were subsequently enacted.

Since then, the Court of Appeal's repeated calls for Parliamentary enquiry and reform have gone unanswered and the Law Commission's recommendations for reform of the law relating to cohabitants have been ignored. Undeterred, although no doubt in hope rather than expectation, in its latest consultation on marital property agreements the Law Commission asked whether any reform should postponed whilst a wider review of the law of matrimonial finance was undertaken.

Meanwhile, the current Government's only proposed foray into this area is the Family Justice Review. That Review though is plainly a cost cutting exercise with no mandate whatsoever to recommend any substantive review of principle.

I leave the final word to Sir Paul: "Family Law does shape society, it is bound to, but the law in this field is in desperate need of comprehensive, root and branch overhaul after prospective (ie forward looking) review of family policy by a non political grouping. It should not be left only to the courts to invent and fashion by retrospective review in the light of the mores apparently garnered from their own experience and the media."

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.