Why Iain Duncan-Smith is wrong about marriage

Cohabitation|Family Law|Stowe Family Law|November 19th 2008

To my mind, the CSJ has jumped firmly onto a conservative (with a small c) bandwagon. I would go so far as to say that its proposals are reminiscent of the mindset of the American politician Sarah Palin, whose extreme opinions may have helped propel Barack Obama to victory.

You can read the CSJ’s report here. When I read Iain Duncan Smith’s comments about family law reform, my heart sank. They are acutely traditional and backward-looking. They indicate a refusal to face up to the overwhelming social changes that have affected millions of people and are here to stay. If this well-meant but unworkable report is really what the Conservatives may inflict on us if they win the next election, heaven help us.

So why do these proposals concern me so? Some are not too bad in theory, but are high falutin’, idealistic and incompatible with the real world. They will never work.

Take for example the idea that marriage should be preceded by “preparation classes”. I must admit that in 1992 I wrote a book suggesting that marriage, not divorce, should be made more difficult. I even trailed the idea of marriage classes in schools. Since then, however, I have become older, wise and much more cynical. Marriage classes are no longer necessary, because marriage is out of fashion. One reason for this is the increasing number of people who know that unmarried couples have no resort to law if a relationship breaks down. Divorced couples do: upon divorce, the law splits marital assets fairly between the couple and their children. For those who do not wish to create legal relationships and are reluctant to part with funds for their families, it’s a no-brainer.

Mr. Duncan Smith and his CSJ do not appear to have understood this. They want marriage to be de rigeur. They are convinced that by legalising prenuptial agreements – at the same time creating further unfairness, because the party most affected by an unfair pre-nup would have to prove that it should not be upheld – they can transform marriage into a more attractive option. Nonsense. Most people cannot afford to pay for a top lawyer to draft a pre-nuptial agreement, let alone have sufficient assets to render the process worthwhile.

No, Mr. Duncan Smith. What is actually needed, and what is blindingly obvious to everyone working in the field, is legislation to regulate relationship breakdowns when couples have been cohabiting but are unmarried. The Law Commission has been savagely criticised in certain newspapers for daring to suggest the need for new law, but its conclusions are right.

Once cohabiting couples are subject to legal obligations, and if there are additional tax breaks for married couples to incentivise marriage, then I am certain that we will begin to see an increase in the number of couples who choose to marry and a reduced number of children growing up within one parent families.

But then what? The CSJ has made alarming mention of reforming divorce procedure and “making divorce more difficult”. That sentiment takes me back to the dark days of 1996 when the last Conservative Government, under its well-meaning Lord Chancellor, actually changed the law. Divorce was intended to take longer, and the procedure was set to become increasingly complex. Ultimately – and to the relief of many- that legislation foundered.

I suspect that the CSJ has allowed its ears to be bent by London lawyers involved in Big Money cases. Generally, they are far more outspoken than their brethren across the country who know that day-in, day-out, the law works well.

There is one of the CSJ’s conclusions with which I agreed whole-heartedly: namely, the prospect of greater rights for non-resident parents and grandparents. At the same time I question how workable these additional rights for grandparents would be, in practice.

The report is well-meant, but behind the times. When, oh when, will we have fearless legislators who and tackle our social problems with workable solutions?

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(3)

  1. Fancy a bogus title Sir / Madam?… « Insitelaw magazine says:

    […] Marilyn Stowe: Why Iain Duncan-Smith is wrong about marriage […]

  2. Jackie Walker says:

    Excellent article – it seems to me that when people realise that any relationship, whether it be a couple, parent, friend, or work colleague boils down to their input then and only then can any lasting change be met. Whether married or co-habiting a couple must relate to one another and this is where I believe the emphasis should be placed.

  3. john sweenie says:

    STOP THE CSA NOW!!!!!!

    IM A LOVING ,PAYING FATHER BUT THE SYSTEM IS UNFAIR AND PURE EVIL ,IT HARMS MORE CHILDREN THAN PROTECTS

    ITS BEYOND ME WHY ITS STILL ALLOWED TO PROCEED

    FOR THE LOVE OF GOD IAN DUNCAN SMITH DO SOMETHING ,GIVE US LAW ABIDING FATHERS WHO DO WANT TO PROVIDE A BREAK AND START FINDING THE ONES THAT DONT

    PLEASE !!!!! HELP

    OR THERE WILL BE A REVOLUTION

    STOP THIS EVIL NONSENSE

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