A parental order, and a family law hero

Divorce|March 15th 2018

Any judgment mentioning the wonderfully named Sir Cresswell Cresswell, the first ‘Judge Ordinary’ of the Court for Divorce and Matrimonial Causes (more of whom in a moment), has to be noteworthy.

And so it is with the judgment of the President of the Family Division Sir James Munby in Re X (A Child : foreign surrogacy). It is a very short and simple judgment, but it makes two interesting points in relation to applications for a parental order following surrogacy.

The case concerned an application by the parents of a “much-loved child” for a parental order, arising out of a foreign surrogacy. We are told little about the facts, but there were two possible hurdles for the couple to overcome.

Firstly, as regular readers of this blog will know, the applicants for a parental order must be husband and wife, civil partners of each other, or “two persons who are living as partners in an enduring family relationship”. Here, the applicants were a married couple, but the ‘problem’ was that one of them was gay, and their marriage was platonic. It may be recalled that a marriage may be annulled if it has not been consummated – was this a problem for the parental order? No, said Sir James Munby. Referring, amongst others, to Sir Cresswell Cresswell, he said that a sexual relationship is not necessary for there to be a valid marriage. Quite right too.

The second issue was that the law requires that “the child’s home must be with the applicants”, but here the parents did not live together. This, Sir James found, made no difference: “When the child is not with both parents, the child’s time is split between them and their homes. The child does not live with anyone else. I need not go into further detail.”

Accordingly, the parental order was made.

And so to my hero Sir Cresswell Cresswell. In fact, I think he should be the hero of every family lawyer, as he was in a large part responsible for bringing family law into the modern age. I have actually mentioned him here previously, in this post. As referred to above, in 1858 he was appointed the first ‘Judge Ordinary’ of the newly-created Probate, Divorce and Matrimonial Causes Court, which replaced the jurisdiction of the ecclesiastical courts that had previously dealt with divorces. This effectively made him Sir James Munby’s original predecessor as President of the Family Division (from 1875 the then ‘Judge Ordinary’ became the President of the Probate, Divorce and Admiralty Division of the High Court, which in turn became the Family Division in 1971).

As to Sir Cresswell Cresswell’s great achievement in helping the process of modernising family law by making it a civil, rather than ecclesiastical, matter, I will let his entry in the Dictionary of National Biography explain:

“It was by his exertions that the experiment of the divorce court was successful. He reformed the old ecclesiastical rules of evidence in matrimonial causes … A less self-reliant man would have shrunk from the task. The work proved in the first year fifteen times as great as had been anticipated, and was always heavy. He disposed of causes very rapidly and sat daily from November to August; in all he adjudicated upon a thousand cases, and his judgment was but once reversed.”

The reference to the large number of cases related, I think, to the increase in the number of divorce cases after the reform of divorce (a situation echoed a hundred years later by the divorce reforms of the 1960s). Cresswell became highly respected (especially by married women!), and even got a mention in Anthony Trollope’s book Framley Parsonage:

“Mr. Gresham and his wife were supposed by the world to live on the best of terms. They always inhabited the same house, went out together when they did go out, always sat in their respective corners in the family pew, and in their wildest dreams after the happiness of novelty never thought of Sir Cresswell Cresswell.”

…which I understand to mean that they never thought of divorce!

I wonder whether the achievements of Sir James Munby will merit a literary mention?

You can read the full judgment in Re X here.

Photo by quinn.anya via Flickr under a Creative Commons licence 

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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