A system that does not unnecessarily pry into private lives

Family Law|January 12th 2017

I wanted to expand upon something that came up in my post here yesterday, something that also echoes a point I have made here previously.

To my mind one of the worst things about family law is the way in which it pries into the most personal and intimate aspects of family life. This voyeurism, I believe, is largely unnecessary, and should play no part in a modern family justice system. The personal lives of those seeking justice should, so far as possible, be of no concern to the courts, or anyone else.

I have written about this previously, in this post, which related to a case last year in which the law concerned itself with matters of the most personal and private nature, due to the fact that we are still saddled with an archaic divorce system that requires, in most cases, one party to place the blame for marriage breakdown upon the shoulders of the other party.

But it is not just divorce where this is a problem. In my post yesterday I referred to a case in which the husband sought to have the marriage annulled on the ground that the wife was incapable of consummating it. The law of nullity can also unnecessarily intrude upon the private lives of the parties.

Before I proceed I will just very briefly outline the law on nullity, for the benefit of the non-lawyer. A decree of nullity can be granted on the basis that the marriage is either ‘void’ or ‘voidable’. The distinction between the two is important, as a void marriage is treated as never having taken place, and a voidable marriage is valid up until a decree of nullity is granted. Examples of void marriages are where the parties are within the prohibited degrees of relationship, where either party is under the age of sixteen, or where at the time of the marriage either party was already lawfully married or a civil partner. Examples of voidable marriages are where the marriage has not been consummated owing to the incapacity or wilful refusal of either party to consummate it, where either party to the marriage did not validly consent to it, or where at the time of the marriage the respondent was suffering from venereal disease in a communicable form. You can find more information about nullity in this post.

Now, I’m not suggesting that the law on void marriages should be changed, but so far as voidable marriages are concerned do we really need the law to consider issues such as non-consummation and venereal disease? Could not such cases be dealt with under a no-fault divorce system, whereby the court simply accepts that the marriage is over, without the need to enquire into why? The effect for the parties would essentially be the same as under voidable annulment: the marriage would be ended, but would have existed legally until the point when it was ended.

It’s not just a matter of the law intruding upon the privacy of the citizen, it’s also a question of wasting precious judicial and court resources. Why, for example, should our judges have to spend their time considering private matters, when it need not be necessary to do so in order to resolve the issue?

Now, I’m not saying that personal and private matters should never be the concern of the law. Obviously, there are cases when the law must concern itself with such matters. For example, if a criminal offence may have been committed, if there is an allegation of conduct so bad that it should be taken into account in a financial settlement, or if the matter relates to the welfare of a child.

However, so far as divorce, judicial separation (which is granted on a similar basis to divorce) and nullity are concerned, if we can proceed on a no-fault basis without the need to pry into private matters, then surely that is what we should do? A modern family justice system should only be interested in the things that really matter to deal with the issue at hand. If that issue is whether a marriage should persist, then all that matters is that it has broken down, not why.

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Comment(1)

  1. Anne-Marie says:

    I am all in favour of the law having the flexibility to go to no fault law if both parties are really happy with that and if there are no children involved. If there are children involved then I feel that the onus should be on one of the parties to prove that divorce is the least worst option and that there is no conceivable way the marriage could be saved/ repaired (and that therefore ultimately someone is culpable and bears responsibility).

    Similarly if the ‘wronged’ party wants the blame publicly attributed I believe it should be their right to have it justifiably laid at the door of the offending party and that this blame should be without prejudice irrespective of sexuality or any other legal fudge. A married person (gay or straight) in any legal marriage (gay or straight) should legally be guilty of adultery if they have committed any infidelity but most certainly any sexual infidelity (gay or straight) and I cannot understand why penetrative sex between two men is any harder to define legally than penetrative sex between a man and a woman. The law is unjust and if it was similarly biased against the gay population would long ago have led to an outcry of discrimination but because it is ‘normal’ straight’ people (more often than not, women but far ft exclusively women) no-one gives a monkey!

    On a similar vein – why should the offending spouse be able to insist on divorce proceedings before being compelled to make a just financial settlement – particularly when they hold the matrimonial assets in their name – most especially when there has been duplicitous or underhand financial dealings.

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