A lot of progress, and none

Family Law|January 11th 2017

In the continuing absence of much in the way of new cases or news (apart from the continuing saga of banning alleged abusers from cross-examining their alleged victims), I thought I would delve a little further into the swathe of old House of Lords decisions recently published on the Bailii website that I mentioned in my post here yesterday. The decisions, which so far as I can tell all relate to Scottish cases, date from the late nineteenth and early twentieth century. They tell us of how far the law has come since then, but also of how little it has progressed.

My post yesterday related to a case concerning a dispute over a dowry arrangement contained in an antenuptial marriage contract. The case Cooper v Cooper and Others, decided in 1888, also related to an antenuptial contract. It comes as no surprise to me that these contracts were often the subject of litigation, as they still are today. In this case the contract provided that if the husband should predecease her then the wife would receive an annuity of £80 from the husband’s estate, in return for her giving up her rights against the estate. The wife sought to have the contract set aside, on the grounds that she was legally a minor when she signed it, and therefore not capable of entering into the contract. The House of Lords found in her favour.

The case Learmonth and Others v. Miller, decided in 1875, concerned a postnuptial contract. Now, I’m not going to go into the details, but the contract seems to have been an attempt by the husband to protect his assets from his creditors, in the event of him being made bankrupt. Needless to say the House of Lords found in favour of the creditors. One of the arguments raised in the case was that the wonderfully entitled Scottish Act of Parliament, the Conjugal Rights Act 1861, applied to the case and gave the wife rights in favour of the creditors. The argument failed, but was an interesting early example of the never-ending battle between the rights of the spouse and the rights of the creditor.

Moving on, the case Steuart v. Robertson, also decided in 1875, was something quite different. The issue here was whether a marriage had taken place between the “wife” and her late husband Major Steuart, the eldest son of Sir William Drummond Steuart of Grandtully and Murthly, Baronet, now deceased. That title may suggest that the destination of considerable money and property hinged upon the outcome of the case. However, that was not so, as Major Steuart and his “wife” did not have a surviving son who would have succeeded to the Baronet’s estates. Accordingly, the case only involved “a moderate amount of personal property”. Now, I’ve not read the whole of the report of this case (it runs to some twenty-five pages), but the interesting point from a modern perspective is that the “wife” claimed that there had been an “irregular marriage” between herself and the Major per verba de praesenti. That Latin term refers to ‘a common-law marriage entered into by the parties by their joint consent, without the interposition of any person authorized to solemnize the marriage and without formal solemnization’. The “marriage” had simply involved words “uttered in a few sentences after a supper on the 13th February 1866”. After a detailed examination of the “voluminous evidence” and great deal of deliberation, their Lordships unanimously concluded that a marriage had not taken place. Obviously, such common-law marriages are no longer legal, and I suspect our judiciary is grateful for that!

The last family law case to which I want to refer is the rather later case of G v G, handed down in 1924. Now this was a case that is instantly, if somewhat reluctantly, recognised by modern family lawyers. It involved a nullity suit, in which the husband successfully sought to have the marriage annulled, on the ground that the wife was incapable of consummating it. Non-consummation of marriage owing to the incapacity of one party is of course to this day a ground to have a marriage annulled, although whether the law should still concern itself with such intimate matters is a moot point.

Finally, I can’t leave these House of Lords cases without mentioning one I came across that definitely does seem to demonstrate how far we have come. It is not actually a family law case, but rather a land law case, with its roots firmly in the feudal system. To get a flavour of the 1902 decision Maxwell v M’Farlane we need go no further than the first few words of the headnote: “Superior and Vassal — Feu-Contract — Construction-Additional Feu-Duty Stipulated for Ground “on which Buildings shall be Erected””. Thankfully, the law, and society, have progressed rather more in the last one hundred years than they appear to have done in the one thousand years before that. Having said that, the vision of progress can be deceptive. Whilst we may no longer refer to parties as ‘superior and vassal’ one wonders whether this is just a question of nomenclature. After all, we can hardly describe our present society as one of equals, with the top few percent still owning the vast majority of the wealth. And as for the feudal system which underpinned Scottish land law, I understand that it was only abolished in 2004.

We are not so far from our past as we might imagine.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Andrew says:

    John, do you really call it progress if serious allegations can be made against a litigant, allegations which could cost him his children, his home, or both, and he is prevented from testing those allegations in cross-examination, although he himself can be professionally cross-examined on what he says at the public expense?
    I call it the shredding of Article 6.

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