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Jonathan James: The Marriage Foundation – doomed to fail?

Date:2 MAY 2012

Jonathan JamesToday, 2 May 2012, the Marriage Foundation is launched, driven by Sir Paul Coleridge. Already it has stirred strong opinions. The Daily Mail heralded it by saying, "At last! A judge who fights for marriage: Senior family court judge campaigns to break Britain's 'divorce addiction'". By contrast, one eminent legal blogger has pictured the patrons of the Foundation with the bodies of dinosaurs. Another has even asked whether Sir Paul remains fit for office. But what is the Foundation actually setting out to do?

"Our overall aim is very simple: to increase the rate of marriage and reduce the rate of divorce."

Now the implication of some commentators is that to promote marriage is backward looking and doomed to extinction. Another is saying that it is in fact pernicious and deplorable. To paint divorce negatively is apparently to deny a person's right under law to seek a divorce!

So here are the key issues:

1. Is a judge entitled to engage in campaigning activity in an area in which he has a judicial function to perform, and

2. Is the promotion of marriage as an institution desirable and is seeking to discourage divorce acceptable?

Now it is worth noting that Sir Paul is not setting out on this journey in splendid isolation - he has four notable fellow patrons, all of whom have had prominent legal careers, two of them at a high level in the judiciary. Just as importantly, he has 33 founding supporters, all of whom are members of the judiciary, three presently serving as High Court Family Division judges and another of whom has previously.

Should judges be required only ever to be reactive?  If a judge can see that in general terms, marriage is beneficial and sometimes divorce is too lightly embarked upon, is he/she nonetheless bound to remain silent?  I don't think I have ever encountered a merry divorce so  I myself have no problem with judges seeking to prevent misery arising. Prevention is better than cure. Now as to how successful they will be in this enterprise, I can't say that I am greatly optimistic. That isn't the point though. I don't see any proper reason to prevent them from trying.

And what of the merits of the campaign? Whether one likes it or not, the legal position in England and Wales is clear. As the Foundation summarises it, "Marriage is a legal relationship that offers protection to its parties in a way that is very hard to replicate by separate agreements. The Law Commission recognises that many people wrongly believe that there is such a concept as a "common law" marriage which offers cohabiting couples similar protection."

Until Parliament changes the law - and it has no present intention to do so - this is a compelling reason on its own for marriage, at least where children are going to be born. Clearly a court cannot order a party to behave like a civilised human being (sadly) so I guess the Foundation amounts to plan B!

Jonathan James is Head of Family Law at Austin Kemp Solicitors in West Yorkshire and blogs at www.austinkempfamilylaw.blogspot.com

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