It will not have escaped your notice that last week saw the first same sex marriages taking place, following the enactment of the Marriage (Same Sex Couples) Act last year which finally came into force on 13 March. Many couples vied to be the first to wed on 29th March, with vows being exchanged a few seconds after the strike of midnight on Friday night / Saturday morning. We are thrilled that there is finally equality in the marriage arena and congratulate those couples who have wed or are intending to do so.
The same legislation provides for English law to recognise same sex marriages validly celebrated overseas.
There remains the issue of current civil partners who wish to marry. At present the civil partnership has to be dissolved either because of fault or because of separation, before the couple can wed. Of course, if the couple do want to marry, then they are not likely to have separated or accuse each other of bad behaviour. Which leaves those couples temporarily unable to marry, although legislation is expected later in the year to rectify this problem and allow civil partners to “convert” to marriage without first dissolving their partnership.
In honour of this historical moment in family law, we thought it might be nice to have a look back at some other historical moments, where things changed for the better as a result of new legislation.
Marriage is a much older institution than divorce, and has seen a few developments in its time. The radical idea of the need for verbal consent from both parties to the marriage arrived into Canon law (the law of the Church) in the 12th century at the instigation of a Benedictine monk called Gratian. Previously the bride’s father could consent on her behalf.
Wedding vows as we now know them derive from the work of Thomas Cranmer, a leader of the English Reformation and Archbishop of Canterbury under Henry VIII, and Edward VI. He was the principal author of the Book of Common Prayer, first published in 1549, and from which the familiar words “to have and to hold …. for richer for poorer ….. in sickness and in health” etc derive.
The wonderfully entitled Clandestine Marriage Act of 1753 required couples to marry in a church or chapel, otherwise their union would be void. No more common law marriage! However by 1836 civil unions were permitted to take place in Register Offices.
Marriage remained a lifelong state until comparatively recently. In the seventeenth and eighteenth centuries, if you had money and influence (and were male), you might be able to get a divorce by an Act of Parliament. Around 300 divorces were granted this way, so it was a momentous change when the Matrimonial Causes Act of 1857 introduced the option to everyone of obtaining a divorce from the High Court. These early divorces required adultery to have taken place. There must not have been collusion or condonation of the adultery, and if (oh the scandal!) a woman applied for a divorce, she required there to be an aggravating factor such as rape, incest, cruelty, or desertion. This extra requirement was abolished in 1923, but adultery remained the only ground of divorce until 1937 when another Matrimonial Causes Act introduced three further grounds for divorce: cruelty, desertion, and incurable insanity.
Meanwhile the position of women within marriage had improved somewhat: three Acts of Parliament, the Married Women’s Property Acts of 1870, 1882 and 1893 changed the law to allow married women to keep possession of their own earnings, the property they owned before their marriage and property acquired during marriage, such as an inheritance. These acts put unmarried and married women on the same legal footing.
As for divorce, the “irretrievable breakdown” concept with which we are familiar today was introduced by the Divorce Reform Act 1969, now consolidated in the Matrimonial Causes Act 1973. For the first time you could get divorced through the local county court rather than coming to the High Court in London.
The position of children within families has developed considerably as well. Until the Custody of Infants Act of 1839 mothers had no rights in respect of their children. The Act permitted a mother to petition the courts for ‘custody’ of her children up to the age of seven for whom maternal custody would then be presumed (the ‘tender years doctrine’), and ask for ‘access’ in respect of older children, although she would need to prove her good character to have a chance at this. In 1873 the ‘tender years doctrine’ was extended so that maternal custody should be presumed until the child was 16.
1889 saw the first Act of Parliament for the prevention of cruelty to children. It enabled the state to intervene, for the first time, in relations between parents and children. Police could arrest anyone found ill-treating a child, and enter a home if a child was thought to be in danger. Since then the position of children has improved with successive legislation introducing regularising foster care (1908), introducing supervision orders for children at risk (1932), setting a minimum age at which children can work and protecting their identity in court (1933), and empowering local authorities to investigate child abuse in their areas (1968). The welfare of children is now governed mainly by the Children Act 1989 which covers both the private (within the family) and public (state intervention) spheres, and the UK ratified the UN Convention of the Rights of Child in 1991.
Returning to relationships, the Civil Partnership Act of 2004 enabled rights akin to marriage to be acquired by same sex couples. Reflecting the complexities and realities of modern families, there are legislative provisions dealing with the position of same-gender parents involved in surrogacy arrangements, and in allowing transgender people to re-register their birth certificates in their new gender.
Family law has come a long way since the days of marriage being a Church-controlled lifelong institution for men and women, and children simply being an unprotected workforce. In our view there is still more to be done, but we hope this briefest of romps through some of the developments shows how far it has come.
As always, we can be contacted on 01223 443333 if you’d like to arrange to speak to us about a family law matter.