Out with the old!

By 16 October 2013financial, Law news, marriage

One of the country’s leading family law judges, Sir Paul Coleridge, has announced his retirement during a fascinating speech made last week to one of the annual family law conferences. You can read what he said in full here – what follows is a reflection on the highlights, from our point of view.

A judicial retirement would not normally form the subject of one of our blogs, but some of the comments made by Sir Paul were both exciting and something of a call-to-arms to reform the legislation and practice governing family in England and Wales. This is entirely our bag: families have for too long found themselves at the mercy of an outdated and inefficient system.

It is worth noting that Sir Paul is retiring to concentrate his formidable mind and efforts on the Marriage Foundation, an organisation about which we have previously mentioned our misgivings. However, freed from the shackles of judicial office, we hope we will be hearing a lot more from Sir Paul after his retirement about the need for reform within family law.

In his speech, Sir Paul emphasised the importance of getting family law right, as it affects the personal lives of all the people living in this country. He called for innovation in the approaches taken to family law, stating:

“I am convinced we need to be following other jurisdictions by being more innovative and much more daring in this field. I am also convinced that, save in rare cases, the days of the gladiatorial wars of the titans are over. The dinosaurs have had their day. I am sure that even the more intractable and difficult cases can be solved in a much more sophisticated and modern way and with altogether less bloodshed, time and cost.”

We couldn’t agree more. Speaking about the standard court based process for resolving disputes, he said:

“[T]he procedure too …. is now, I suggest, unduly clunky, slow and antediluvian. We made great strides in the 1990’s …. But much more modern process by FDR, mediation, collaboration and arbitration or a combination of some or all is surely what we need and want.”

He pointed out that the legislation governing divorce is now some 40 years old (the Matrimonial Causes Act 1973) and aside from some minor tweaks and additions, Parliament has done precious little to examine or improve family law legislation since that statute was enacted. Calling the legislation a “dead parrot” he said:

“Since family law is intended to regulate family life as it is lived now and not in the distant past, it follows that the current divorce and financial provision law (not to mention the law relating to unmarried partners) is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a wholly different society and way of life. In the immortal words of John Cleese it is a dead parrot. It is no more; it has gone to meet its maker. Or should do. The Matrimonial Causes Act 1973 with all its layers of crustacean growth needs to be humanely killed off and given a decent burial and the heroic efforts of the Supreme Court to maintain the life support system need to stop. The Act has, quite simply, had its day.”

This was followed by a call for a non-political independent commission to look at the law afresh, and away from the headline grabbing short-termist policies of politicians. He called for modern, relevant and easily understood legislation, which does not require endless recourse to hundreds of pages of interpreting precedent (i.e. the need to read back through many decided cases in the higher courts in order to find an argument to bolster your case).

Sir Paul also lamented the current confusing muddle of the divorce process itself, which he pointed out is somewhere between a fault based and non-fault based system. The law’s requirement for a reason for divorce demands an element of fault to be proved and that one party should petition “against” the other, whilst the reality is that lawyers and judges prefer the process to include as little blame as possible so as to preserve family relationships if this can be done.

The same is true of cohabitation law, where the lack of a proper modern legislative framework to protect the rights of couples who live together outside marriage has resulted in a “witches brew” of arcane and ancient concepts dragged up and employed to try to achieve something akin to a fair result, judged against the concept of fairness in today’s society.

Sir Paul summed up by calling for an urgent comprehensive, root and branch overhaul of both law and procedure after a forward looking review of family policy by a non-political grouping. As he rightly pointed out, it should not be left to the courts to invent and fashion the law by retrospective review. (It is worth noting that the Law Commission is currently examining some elements of the financial part of divorce law, but its remit is very limited and there is no current mandate for any general review.)

Sir Paul is not without his critics, and we have been among them, but his call for review followed by parliamentary and legislative reform of the outdated legislation is music to our ears. The family justice system costs £46billion per year to run. That is more than the entire defence budget. We cannot see the Ministry of Defence accepting 40 year old equipment as being fit for purpose, and we hope Sir Paul’s comments will start the long-overdue ball rolling to give families in this country laws that better reflect modern life.

Let us know what you think – give us a call on 01223 443333.

 

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