A laissez-faire approach to family law

Family Law|October 8th 2018

There is a lot of talk about reform of family law these days. Change is in the air, and we are not just talking about minor or peripheral matters. We are talking about the fundamentals of how the law interacts (or not) with human relationships.

At the top of the list is the Government’s consultation on the introduction of a system of no-fault divorce. The law, in effect, is loosening its control over when and whether a marriage has broken down. Instead of instigating an intrusive and patronising investigation into matters that really should be private, the law will at last treat spouses as adults, and accept that if they say that their marriage has broken down, then it has – after all, they are the people that know.

Next up is the idea of civil partnerships for heterosexual couples. Instead of the law saying that if a heterosexual couple wish to enter into a legal relationship then they only have one option, soon they will have two. In other words, they will be given the freedom to choose what type of legal relationship they want to enter into.

But the calls for reform don’t end there.

Hot on the heels of the Prime Minister’s civil partnerships for heterosexual couples announcement came repeated calls for the extension of civil partnerships to sibling couples. As I have said here myself, I see no good argument against this. Why not give siblings who live together the choice whether or not to ‘legalise’ their relationship? Some have argued that such a change would be contrary to the law on consanguinity, but there is of course currently no requirement for consummation of a civil partnership (i.e. non-consummation is not a ground to have the partnership annulled), and there is no reason why this should not be the same for sibling partners. And so what if any relationship is not consummated? Some perfectly ‘valid’ marriages are platonic. What business is it of the state whether a relationship is consummated?

The idea of property rights for cohabitees is also being promoted again by many family lawyers, eager to catch the moment for reform. Some may say that this is tantamount to taking away the freedom to choose not to enter into a legal relationship. However, that is not so. The idea of rights for cohabitees is not about denying the choice to have a relationship ‘with no strings attached’. It is about fairness. If it is unfair that a spouse should end up with nothing after the commitment of a long marriage, then surely it is also unfair that a cohabitee should end up with nothing after a long period of cohabitation? You should not be treated as a second-class citizen merely because you choose to cohabit. Cohabitation should be fully recognised by the law as a perfectly viable type of relationship.

The common thread in all of this is the idea of laissez-faire, i.e. that people should be free to choose how to live their lives, without too much interference from the state. People will be able to walk away from their marriages when they want to, not when the state says they can, and people will be free to choose what type of relationship they want to enter, without fear of the consequences, such as how they will be left penniless after a long period of cohabitation, because the state deems that that is how it should be.

So we are moving to a more laissez-faire legal approach to family relationships. But this could just be the start of a move to a more complete ‘hands off’ approach. Why, for example, differentiate at all between marriage, civil partnership and cohabitation? Why not just recognise that people choose to live together? Do we need to have some legal construct to govern that? Why should the state interfere at all, at least until the point that the relationship breaks down?

It’s been fifty years since the last major reforms to the law on marriage, and hopefully we will soon have something far more laissez-faire than we got then. And what the law may look like in another fifty years could be quite different again.

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.

Comments(2)

  1. spinner says:

    “It is about fairness. If it is unfair” – In your opinion. I don’t think it’s fair to force two people into a legal contract neither of them has voluntarily signed.

    What we need is a French style system where there are choices for couples to enable them to be in control of what type of financial commitment, if any they wish to make to each other.

    “Instead of instigating an intrusive and patronising investigation into matters that really should be private, the law will at last treat spouses as adults” – You can’t have it both ways, in the same article. Let’s just agree to treat people as adults who are able to make their own decisions unless they have some medical evidence that states they are mentally unable to be treated as such.

    • JamesB says:

      I agree completely. Especially, “It is about fairness. If it is unfair” – In your opinion. I don’t think it’s fair to force two people into a legal contract neither of them has voluntarily signed.

      What we need is a French style system where there are choices for couples to enable them to be in control of what type of financial commitment, if any they wish to make to each other.

      Also, I think the marriage vows should count as something. I dont get how you can say until death us do part and then not be penalised for walking away. I think people should be allowed to write their own contracts rather than have the state interfere, as you say, I agree. The (ancillary relief) orders and consent orders are coerced and not really agreed to and viewed by most recipients of them as unfair.

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