What is family law for?

Family Law|January 20th 2015

I think it’s a useful exercise for family lawyers and their clients (indeed, anyone involved in the family justice system, whether they work within it or are parties to family proceedings) to take a step back occasionally and remind themselves exactly what the purpose of family law in this country is. What is it trying to achieve? Sometimes we can become blinded by the minutiae and lose sight of the bigger picture (save, perhaps, when considering reform of family law).

Family law work of course takes many forms, but for the purpose of this post I will confine myself to a consideration of the three main elements of private law family work: divorce, sorting out arrangements for children and sorting out finances following divorce.

Let’s start with the easy one: divorce. Obviously, what the law aims to achieve here is the untying of the legal relationship between the spouses, so that they no longer have any obligations towards one another (I won’t get into the topic of what legal obligations marriage creates between spouses) and so that they are free to remarry, if they so wish.

It sounds fairly straightforward, and it should be, but sadly it often is not. This is due in part to our archaic divorce laws that still include the concept of fault – i.e. the requirement that one or both parties should be at fault for the breakdown of the marriage. Instead of untying the knot in the simplest, quickest and cheapest way possible, some couples get bogged down in allegation and counter-allegation, determined not to be the party to whom the ‘at fault’ label is affixed.

Moving on to arrangements for children, the primary aim must surely be to minimise the adverse effect of their parents’ separation upon the children. This entails ensuring that the children continue to have as full a relationship as possible with both of their parents, unless there is a good reason why this should not happen. Unfortunately, all too often parties lose sight of this, with proceedings descending into arguments that have little to do with the rights or best interests of the children themselves.

There is also of course the more basic aim of ensuring that the children’s material needs, including their housing, are provided for. If not agreed this is achieved (unfortunately, in my view) by two separate processes: the financial settlement within the divorce (see below) and the child support maintenance system.

As to sorting out finances following divorce, many ‘objectives’ have been proposed, but I suppose the main one is ‘fairness’, i.e. the achieving of a fair settlement between the parties. That is not, however, particularly useful an aim in many cases, where we are looking at things that are far more specific, such as providing the parties (and, more importantly, the children) with a roof over their heads, the income that they require to live to an appropriate standard and financial security in retirement.

What the law is not (normally) trying to achieve is the financial penalising of one party for being the cause of the breakdown of the marriage. It is also not in the business of establishing one party as the ‘winner’ and the other as the ‘loser’. Those, however, are all too often the goals aimed for by many parties involved in sorting out finances following divorce.

All of family law in this country must, of course, be compatible with the European Convention on Human Rights, and it is useful to consider the above in the context of human rights, which helps convey the bigger picture. The particular rights that are directly related to family law are Article 8 (the right to respect for private and family life) and Article 12 (the right to marry).

Divorce itself doesn’t really ‘feel’ like a human rights issue, but clearly getting divorced, and therefore being free to remarry, is.

Sorting out the arrangements for children is probably the area that most obviously has human rights overtones. The right to respect for family life applies not only to the children who are entitled to have a relationship with their parents, but also to the parents who seek a relationship with their children.

But even sorting out finances has a human rights element. After all, families need homes to live in and, as mentioned above, providing such homes (if possible) is a primary aim of the law relating to finances following divorce.

This post has obviously been just a very brief glance at a huge topic. There are many things I have not mentioned, including the fact that the aims of the law change over time as society changes. However, as I said at the beginning, I think it is useful to ‘touch base’ once in a while and remind ourselves of the bigger picture, even if it is just a cursory glance. I’m sure that there is nothing I have said here that is at all profound or surprising, but maybe standing back may help those involved in the family justice system see through to what is really important.

Photo by Renee Suen via Flickr

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