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Reflections on family law: What is ‘family’?

Date:17 AUG 2018
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Trainee solicitor
Reflections on family law can occur in the most unusual of places. After a recent delayed flight from London to Chicago (taken by Michael), a couple were asked at customs whether they were family. Both gave conflicting answers: she said yes, and he said no! Over the jet-lagged fueled bickering, it got Michael thinking about how the concept or term ‘family’ can mean different things to different people. It turned out this couple were living together as boyfriend and girlfriend but their difference of opinion on whether they were family members recalled the recent lecture given by the former President of the Family Division, Sir James Munby.

In his lecture given to the University of Liverpool on 30 May 2018, the then President made the point that before considering what family law means, one should first address the question of what is ‘family’. As he highlighted in his lecture, there was a time when most people probably thought that the answer was clear and obvious. Nowadays it is not so simple. 
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The former President gave five reasons for what he described as 'enormous and very profound changes in family life' in recent times. First, there have been significant changes in the social and religious life. Second, there has been a large increase in the number of trans-national families. Third, there has been an increasing lack of marriage as an institution. Fourth, there has been a change in attitudes towards same sex relationships. And fifth, there have been enormous advances in medical and reproductive science.

These changes are not just academic but are seen in our daily work. As a firm specialising in international family law we have the benefit and privilege of seeing people from all walks of life. By way of example: 
  • We are routinely consulted by same sex couples seeking assistance either in relation to the recognition or dissolution of their marriage or civil partnership. One problem which often occurs is a couple who enter into a civil partnership or same sex marriage here move to live in another country which does not recognise the status of their relationship and then discover, on separation, that it is not possible to dissolve their marriage/civil partnership in the country where they are living. England offers a residual jurisdiction in these circumstances provided the marriage/civil partnership took place here, but most countries do not. 
  • Another issue which we encounter on an all too regular basis is the status of religious marriages entered into in this country. Although England will recognise religious marriages which are entered into overseas provided they satisfy various safeguards, primarily some state registration, religious marriage ceremonies which take place in England are not always automatically recognised unless there is a separate civil or accompanying ceremony. Although the recent decision of Williams J in Akhter may have shone some light upon a potential route to making financial claims in some circumstances, the current law can often lead to the financially weaker party being unable to claim financial relief through the family court. 
  • We are also regularly consulted by couples from countries where de facto relationships are recognised and give rise to financial claims. This can often lead to difficulties in recognising and enforcing overseas de facto financial settlements in countries where de facto relationships are not recognised, particularly when the order requiring enforcement is not related to maintenance.
When we consider the broadness of the term ‘family’, the issue of ‘recognition’ does not just arise from a black letter law standpoint of whether a marriage/divorce can or cannot be acknowledged by one country or another. There is also the argument that the current law does not recognise or reflect the varying facets of modern family life. It is likely that an unmarried couple who have lived together over many years and share children together would consider themselves to be a complete ‘family’ unit. However, if they were to separate neither of them would be able to apply for financial provision for themselves within the family court and would be left to hard property law principles or financial provision for any children of the family. 

In 2017 the Office of National Statistics published results showing that since 2002 the percentage of the population in England and Wales who cohabit but have never married has increased, whilst cohabitees who got married has decreased. This reflects the changing attitudes in England and Wales towards the need to marry in order to build a ‘family’ life. Moreover, it points to the distinct divide between the beliefs of a large sector of society and the law as it stands today. 

The lack of recognition of the different modes of family life is also demonstrated in the difficulties faced by step-parents and same-sex parents when wishing to enforce their responsibilities over the children of the family. For example: 
  • If an unmarried same-sex female couple have a child together and they do not agree at the time of insemination that the non-child bearing party is also the child’s parent, that person will not hold parental responsibility over the child nor will they be able to acquire parental responsibility later except in very limited circumstances. 
  • A step-parent has no parental responsibility over the child unless this is agreed with the child’s mother and everyone else with parental responsibility, or he or she applies to Court. This issue is likely to become more and more prevalent if we see an increase in the number of ‘hybrid’ families, as opposed to the traditional nuclear family, in the coming years. 
  • The issue of married couples vs unmarried couples also rears its head here. An unmarried father who is not named on the birth register will not have parental responsibility in respect of his child unless he obtains an agreement from the mother or applies to court. 
These extra hurdles of applying to the court highlight the prejudice by our law towards the non ‘traditional’ members of a family. 

Calls for reform have been coming for some time and is long overdue. However, with Brexit imminent it is hard to imagine that family law is going to get much consideration in Parliament anytime soon. Perhaps this is an opportunity to first consider what constitutes family law which will have an impact on the reforms needed.