WHAT IS FAMILY LAW?
Family law is of fairly recent invention, especially as an academic subject, credit for this achievement usually going to Professor Peter Bromley, who published the first edition of his now well known textbook in 1957. In the same decade, a practical text on ‘Divorce’, as the general subject of family law was then called, was published by Dmitri Tolstoy. Tolstoy was an ex-patriate Russian aristocrat practising at the common law end of the English Bar, and the father of the then equally unknown historian Nikolai Tolstoy, later famously sued by Lord Aldington for defamation in relation to the West’s alleged post-Second World War betrayal of the Cossacks. At this time, only 50 years ago, Sir John Mortimer had not elevated to literary fame, nor into the realm of classic television entertainment, the career of his father, the blind divorce lawyer Clifford Mortimer, and neither family law in general nor divorce (its best known feature) in particular featured in serious academic programmes.
Indeed, Lord Shawcross (then Sir Hartley Shawcross, the post-war Labour Attorney General) commented that this was a ‘very simple branch of the law’ which required ‘no study or thought at all’. Its precise scope has, therefore, over the years been by no means as settled as the province of other mainstream core or optional subjects of the qualifying law degree, either in terms of the perceived extent of the subject area for academic or vocational purposes, or within the undergraduate curriculum, where it is now usually a popular second or third year optional subject, although specific coverage varies enormously from law school to law school.
It is thus difficult in modern times to define ‘family law’. First, one must define ‘the family’, a task hard enough in itself, since contemporary human rights law has accepted that a mere two persons who have never met but are linked by blood-such as the unmarried father and his child found to be a de facto family in the case of Keegan v Ireland (1994) 18 EHRR 342-may comprise ‘a family’ sufficient to enable a breach of the right to ‘family life’. Moreover, family law now operates in an international dimension, bringing into the ever widening concept of family law norms and traditions different from those which in the UK, and more specifically the jurisdiction of England and Wales, we take for granted.
Article 8(1) of the European Convention on Human Rights and Fundamental Freedoms (ECHR) does not define the family life for which it guarantees a right to respect, although Keegan makes clear that ‘the notion of “the family”…is not confined solely to marriage based relationships and may encompass other de facto “family” where the parties are living together outside of marriage’.
Family law is therefore a law of relationships, between adults inter se, between adults and children, and between both adults and children and the State, as continually influenced by social and demographic changes. It is a body of rules of different types (some rules being so loose that they are basically discretions, a distinguishing feature of family law) and it defines and alters status, provides specific machinery for regulating property, protects both individuals and groups and attempts in so doing to support the family structure of our society. The current edition of Bromley’s Family Law suggests that the family is almost impossible to define. Cretney, on the other hand, thinks that the ‘key factor’ running through family law is parentage, with a consequent focus on the child. Eekelaar and Maclean approach family law as a socio-legal study, and Barton and Hibbs examine the various family members (primary, secondary and tertiary) in order to define whether family law is ‘interested’ in them or not. Diduck and Kaganas look at the American feminist perspective, which seems to centre on the mother and child, although it is apparently accepted that a man could perform the ‘mother’ parenting role. After a canter along the philosophy corridor, they conclude sensibly that, as there is no statutory or common law definition of ‘the family’, then ‘a family is what the ordinary man on the street thinks it is’, and cite a series of cases in support, beginning with the housing case of Sefton Holdings and Cairms  2 FLR 109, per Lloyd LJ, and ending with the more recent Fitzpatrick v Sterling Housing Association Ltd  3 WLR 115 (HL);  1 FLR 6 (CA). The former was a tenancy succession case in which it was necessary to decide whether two unrelated unmarried women (not apparently in any form of lesbian relationship) were ‘a family’ so that the survivor could succeed to the deceased’s statutory tenancy. The latter was an overt same sex couple case in which in the Court of Appeal Ward LJ, dissenting, wanted to find that the cohabitants were either the equivalent of persons living together as husband and wife or alternatively were simply ‘a family’, a view which was upheld in the House of Lords and has subsequently been developed in the case of Mendoza v Gheidon  EWCA Civ 1533 to accept same sex couples as the equivalent of husband and wife.
Some university courses approach the scope of family law in a literal sense and offer a study of ‘family life’ from the cradle to the grave, including the law of inheritance, on the basis that many more marriages and other partnerships end by death than by divorce. The truth of the matter is that family law in modern times can be whatever a course designer wants it to be. Moreover, to spend much time wondering what is the precise extent of family law will only waste time which will already be pressing if any family course is to encompass a fraction of the peripheral influences which now impact upon the core topics, without some coverage of which those parts of the family course studied in detail will be somewhat sparse and dry. This is because of the fast changing nature of those influences, and of the finite nature of the time available to study any topic. Each year, parts of courses must be removed to accommodate new material or the course becomes unmanageable.
Contemporary academic family courses tend to include some sociological, political and procedural background to the law because of the impact of those peripheral areas of study on the way in which the black letter law operates. What the student of a modern family law course is therefore likely to gain from study is an understanding of how the modern family, however that is composed, works in law and practice.
The changing face of family law
Family law, in both academic and practical contexts, is an especially fast moving subject because it reflects life as it exists rather than making abstract rules for observance by society-a trend first identified in Maine’s classic text, Ancient Law. Thus, any family law student or teacher must have a sound grasp of the basic principles of law and practice. The design and delivery of a well balanced family law course will usually benefit from a good deal of planning and skillful execution, within which the course leader’s own subjective views and preferences will naturally play a part. Yet there is a basic common core of black letter law that every student family lawyer will need to acquire before any of the now extensive interdisciplinary influences, such as socio-legal studies and the wealth of empirical research around family law concepts, can be understood. One reason for this is that while family law is necessarily a human subject-because of its subject matter, and all students therefore bring human experience to its study which should help them in applying the discretionary rules that family law consists of-they do need to develop the new skill of looking at family law in a different way from the way they regard more traditional subjects such as contract or land law. It is the development of this practical as well as academic approach which this book aims to impart, by explaining how the law works in practice and, where possible, why it is as it is. The concept is not new: Professor Cretney, himself a solicitor, has been looking at the practical impact of the black letter law in his textbooks through several editions. It was doubtless this approach which rendered so successful his critical guides to the Family Law Act 1996, which were instrumental in flagging the impractical features of that Act and the extreme likelihood that they would simply not work in practice.
The new student of family law should therefore first be encouraged not to fall for the general assertion that family law is not really law at all, but to look at it in a different light from other law modules. Family law is definitely ‘law’, but there is no doubt that it is ‘different’, and not only in academic terms. Among practitioners, even dedicated litigators have discovered that the practice of family law demands a different approach (although in the context of the Woolf reforms in civil litigation generally, which require alternatives to litigation to be sought first before issuing proceedings, and then again at the earliest case management stage, the formerly exclusive family law approach will no longer be unique).
Secondly, those new to family law should be encouraged to absorb the culture of this distinct breed of law so as to see themselves from first base as family lawyers who must constantly remind themselves of its difference from other substantive law, and must continually hone their practice of its culture. Some undergraduates find this difficult, instinctively clinging to the black letter law of statute and precedent alone. Indeed, it is not so long since family law was approached in a much more legalistic way than is the fashion today. The watershed for this sea-change was when the Divorce Reform Act 1969 was passed, replacing the former entirely fault based divorce law with a system more attuned to modern life-still partially fault based but also recognising the complex nature of marriage and the interaction with it of other family relationships. From within this statutory watershed also emerged the multidisciplinary influences that generated the idea that family law was in a different category from other litigation.
Students who have difficulty grasping the nature of modern family law can often profit from a study of some of the early 1970s cases from which it is obvious that the older judges of the period also had difficulty in making the necessary conceptual changes. Some examples may be seen in next texts, where there are several instances of judicial wrestling with the new concept of adultery as being a symptom, and not a cause, of marriage breakdown.
Similar problems have been experienced with relating the new basis of ‘behaviour’ (in that it may be ‘unreasonable’ for the spouse to tolerate by continuing to cohabit with the offender) to the pre-1969 ground of ‘cruelty’, an altogether simpler concept which most people had little difficulty understanding. So students need not be alone in growing into the concepts of modern family law and the culture of their application in the round.
Nor are undergraduate students the only ones who may find difficulty in getting to grips with the profound impact that the reformed law of divorce and children has had on the law in practice. It is unusual today to find any generalist practitioner, even one who does not practise much in family law, still displaying that old fashioned pre-1969 approach which under the umbrella of the unreformed law of divorce treated marriage breakdown as a contest which had to be won by an ‘innocent’ party and ‘lost’ by the guilty. Such a practitioner, usually of a certain age, may occasionally still be found fighting a case brought under the Inheritance (Provision for Family and Dependants) Act 1975 where a divorced wife who has not remarried, and receives ongoing periodical payments which usually die with a former husband, seeks the provision she might have had had there been a clean break on her divorce. This type of practitioner usually relies, albeit apparently under the modern law, on all the old pre-1969 ideas: often the fossilised view of guilt and innocence that an older practitioner retains provides the stark contrast which the student needs to understand how family law has achieved its ‘different’ character when compared with the approach of the younger practitioner who, having studied and worked under the reformed law, knows no other. Similar stark contrasts arise in child cases, where in an era of joint parental responsibility any mud-slinging against each other by the parents is now actively discouraged: the pre-1969 lawyer, academic and practitioner alike, knew no other way to obtain an order but by character assassination of the child’s other parent. Now the academic student is often confused by the apparently mutually exclusive nature of the law as read in the statute, and the practice, which the good lecturer or tutor will explain is not at all as it sounds in the books.
For this reason, some older cases, even those decided by distinguished judges, may need to be treated with caution, because on top of the changes in the law there has inevitably been significant social change in the intervening years, so that the norms on the basis of which such decisions were made will also have changed. Further, the student should also be cautioned that precedent often has a limited use in family law, either because a statute expressly says so, or because, as family law has a highly discretionary element, it is rare that a case will ever be precisely on all fours with an apparent precedent, which may therefore only offer useful guidance for consistency rather than a rule. It follows that this constant honing of modern themes means that while there is a place in the study of family law for the latest cases, the basic underlying principles are really what matters, because any recent decisions, unless in the House of Lords (and even there their Lordships can rapidly change their mind), may only indicate how some judges are thinking, or were at the time they decided the cases in question. All this may indicate why, nearly a decade after the Divorce Reform Act 1969 had been consolidated in the Matrimonial Causes Act 1973, a group of family solicitors decided that the time had come to recognise the way in which family law had grown away from other litigation, and to lay down some principles of practice.
HOW FAMILY LAW DIFFERS FROM OTHER CIVIL LITIGATION
It is now three decades since it was realised by practitioners that family law in general, and paradoxically divorce law in particular, could not be regarded as just another aspect of civil litigation, although for the first 130 years since the initial Matrimonial Causes Act was passed in 1857 there were few lawyers who realised this and fewer still who adopted an approach to family law work which reflected such a view. The Solicitors Family Law Association (SFLA), a well known group of specialist practitioners founded in 1982, must be credited with taking the significant step of introducing a constructive and civilized approach to the resolution of legal matters following matrimonial breakdown.
Innovative as this was at the time, it is now universally accepted that the legal resolution of family problems is not conveniently achieved by a predominantly litigious approach, even where a firm has no specialist family department. The SFLA was initially established to take family matters, as far as possible, out of the atmosphere of contentious litigation, with the aim of achieving agreed solutions which, while not substantially different from what the court would order if the matter were acrimoniously contested, might with cooperation be achieved at less cost, emotionally as well as financially.
As time has passed, this philosophy has become much more important since, for example, the passing of the Children Act 1989, which established the relatively innovative concept of parental responsibility and encouraged divorcing parents to continue good parenting regardless of the end of their marriage. However, whether or not a solicitor joins the 3,000 strong membership, the Law Society recommends that all solicitors practising family law observe the SFLA’s principles and Code of Practice, adherence to which is made clear not to be a sign of weakness and not in any way to place the client at a disadvantage.
Of course, there are still solicitors who do not observe the Code, and who still insist on conducting matters in an aggressive and acrimonious manner, but the SFLA philosophy is now so well established that the majority do stick firmly to its principles even when encountering an aggressive opponent of the old fashioned disposition, and do not give in to the obvious temptation to retaliate in kind. There are in fact now few such aggressive solicitors; where they do still exist their identities are well known in the profession, and their approach well recognised for one unfortunately still rooted in the pre-1969 divorce and child law which was entirely adversarial and fault based. Experience has shown the bulk of the profession that the best response to the few diehards is one of increased politeness and courtesy backed up where necessary by immediate and decisive court action, which is in no way precluded or inhibited by the Code. The SFLA’s principles merely require that litigation should not be the first resort where matters may instead be conveniently negotiated to start with and then formalised procedurally afterwards. This approach necessarily influences judges at every level and is to be easily identified in contemporary Court of Appeal judgments. It should also influence the approach of academic students to the interpretation of black letter family law.
THE FUNCTION OF FAMILY LAW
With the change in the philosophy of family practitioners has come a widening of the range of sub-divisions of family law, so now the modern family lawyer has an increasingly unwieldy portfolio of topics to service. In academic terms, as a survey for the National Centre for Legal Education’s manual Teaching Family Law showed, this has meant that undergraduate courses now either embrace one (so called ‘long thin’) family course spread over one academic year, or two or more (so called ‘short fat’) modules studied over two semesters. The long thin course usually covers marriage, divorce and other decrees, including financial relief and increasingly mediation, plus child law and the unmarried family. The short fat modules course usually consists of one module covering marriage, divorce and allied topics, while child law-including children’s rights, child abduction, adoption, human assisted reproduction and termination of pregnancy-makes up a separate course.
However, as mentioned above, some courses look at the family in a wider context, including a study of the termination of marriage, and give greater space to the study of the consequences of cohabitation, and of the wider concepts of the family, such as in homosexual and extended family relationships. Some universities actually identify this imaginative type of course quite separately with labels such as ‘the law of relationships’.
Inevitably, in this way the function of family law comes under scrutiny, and the influence of the socio-legal dimension increases in direct proportion to the introduction of such innovative topics depending on the space and weight given to them. This is, in practice, not only inevitable, but probably pragmatic and desirable. Even the President of the Family Division, Dame Elizabeth Butler-Sloss, upon taking office as Head of Division in the late summer of 1999, expressly commented in her first statements to the media on the changing shape and nature of the family which could be noted during the 40 years since she had commenced practice at the Bar. Shortly afterwards, the House of Lords, in the context of succession to a tenancy by a member of a deceased tenant’s family, accepted that the definition of ‘the family’ was now to be construed in a contemporary light (Fitzpatrick v Sterling Housing Association, above). However, the House did stop short of recognizing such a family member as a ‘spouse’, despite the claim of the survivor of the homosexual relationship, which had given rise to his recognition as a member of the deceased’s family, that they were non-married partners in all other respects on the same footing as married persons. Addressing this point, Lord Slynn said that a ‘spouse’ was not to be interpreted at the present time as including two persons of the same sex who were intimately linked in a settled relationship, having all the characteristics of a marriage except for the fact that the parties could not have children. He based this view on the fact that in that particular case, the successful claim of the appellant to be a ‘family member’ depended on a 1988 amendment of the Rent Act 1977, into which could not, in his view, be read the words ‘same sex partner’ in lieu of ‘spouse’. This was no doubt a convenient peg on which to hang this particular decision, since same sex partners are of course (without resorting to adoption) able to have their own genetic children in the same way as heterosexual couples, by means of human assisted reproduction, as well publicised surrogacy arrangements have recently shown in which sperm from both male partners was used in artificial insemination (a case only reported in the popular press), but see the further development of this evolving concept of the family in the Mendoza case (CA).
It seems, therefore, that it is accepted that in the law of adult relationships marriage alone no longer defines the family, and nor does heterosexual cohabitation. Precisely how wide the family extends is uncertain, as the contemporary concept has spread through both blood and marriage and cohabitational (and perhaps formerly cohabitational) relationships.
Certainly the concept of ‘associated persons’ envisaged by Pt IV of the Family Law Act 1996 has thrown the net very wide: in the practitioner context the concept of ‘elder abuse’, and the relatively new idea that there should be some protection for the elder relative akin to that afforded to children by the Children Act 1989, suggests that the family has an existence under the umbrella of the law that now regulates relationships from cradle to grave. In this context, the statement of Neuberger J in Re The Estate of John Watson (Decd) (1998) The Times, 31 December, that the court ‘should not ignore the multifarious nature of marital relations’, would appear to be more in tune with current social trends than the approach of the Crown (in that case claiming the whole estate as bona vacantia) for whom the Treasury Solicitor said that the relationship of a couple in their 50s, who had given up sexual relations but otherwise shared financial and domestic responsibilities, was merely a house sharing arrangement at arm’s length. Such an approach certainly seems legalistic at a time when all cohabitants are constantly being urged to make clear financial arrangements, precisely because in the absence of a marriage certificate (giving rights on divorce under ss 23 and 24 of the Matrimonial Causes Act 1973) cohabitants who have provided the ‘sweat capital’ in a relationship are at risk of having few or no rights if a separation occurs during their joint lives (although the position is usually a little better on the death of a partner in such circumstances). The Inheritance (Provision for Families and Dependants) Act 1975 provides for persons living ‘as the wife’ of the deceased, as Mr Watson’s partner was held by Neuberger J to be doing.
The student should nevertheless not be discouraged by the wider spread of topics potentially to be covered as a result of this expansion of the subject, nor be suspicious of the validity of the interdisciplinary dimension. Family law has come a long way since the first Matrimonial Causes Act 1857. The concept of unity in the arts, developed not long after that Act by the philosopher and reformer William Morris, is now taken for granted: perhaps when a future President of the Family Division (now probably still at law school) takes office in the 2040s, the unity of sources of family law will not only be taken for granted, but will be seen in the same informative light as the crucial developments of the past 40 years commented upon by Dame Elizabeth Butler-Sloss in 1999.
Since family law is so wide and diffuse in scope, it is in the interests of students to keep abreast of changing trends and of trends within trends. The journal Family Law is useful for this, since it summarises and comments on cases in each issue and offers articles on currently controversial topics and points of interest. It guides critical thinking in a way which may be useful to the student who does not have time to seek out and read all the potentially interesting or impacting peripheral texts.
FAMILY LAW AND HUMAN RIGHTS
The greatest changes to family law are probably yet to come. The Human Rights Act 1998 came into force in October 2000, enabling the ECHR to be enforced directly against the State as part of English law. The articles of the Convention most likely to impact upon family law are as follows:
• Article 6 (right to a fair trial).
• Article 8 (right to respect for private and family life).
• Article 9 (right to freedom of thought).
• Article 12 (right to marry).
• Article 14 (prohibition of discrimination).
It will be clear, that Art 8 does not refer solely to marriage based relationships, and the existing Strasbourg case law already indicates that a very slight relationship between a father and his child will be enough to invoke the concept of ‘family’. Those whose sole contact has been to provide sperm for artificial insemination will clearly not be able to show a sufficient connection to establish a familial relationship, but (especially as the Convention is a living, legal organism and not a static body of rules) anything more, however temporary, may well be sufficient to create the necessary relationship. It should be noted that the Court of Appeal has already sounded a warning about using common sense in invoking human rights arguments: in Daniels v Walker (2000) The Times, 17 May, the Master of the Rolls called for a ‘responsible attitude’ from lawyers raising such arguments, so as not to clog the courts with an unnecessary workload generated by meretricious points.
Lord Woolf expressed the hope that judges would take a robust attitude with inappropriate arguments, which he categorised as any which take ‘the court down blind alleys’. There has already been some practitioner consideration of whether this might lead to adverse costs orders.
Family law is a young academic subject, having been recognised as such since the 1950s. There is no statutory or common law definition of ‘the family’, nor any clear boundaries to the topics and issues to be studied on a family law course. The subject area divides naturally into, first, a law of adult relationships and, secondly, child law: the former tends to cover marriage, nullity, divorce and judicial separation (and financial relief following or without decree), and some introduction to the law of unmarried relationships, and the latter a study of the Children Act 1989, and of wardship, children’s rights, child abduction, adoption, and human assisted reproduction.
Family law defines and alters status, protects individuals and groups, provides machinery to divide and manage property, and attempts to support the family as a desirable social unit.
Family law is a relatively ‘new’ subject area of law, both in the academic and vocational fields. The first Matrimonial Causes Act was in 1857 and the first academic textbook, establishing family law as a recognised subject in the academy, Bromley’s Family Law, was first published in 1957. Family law is often claimed not to contain much ‘law’ but is interdisciplinary and supplemented by socio-legal studies. The nature of family law either side of the Divorce Reform Act 1969 is significantly different, and its practical application even more so.
Family law litigation is not conducted adversarially except by a few old fashioned practitioners. The contemporary approach is co-operative, putting the overall welfare of the family first, and seeking alternatives to litigation before resorting to court proceedings.
This was an initiative generated by the establishment of the SFLA in 1982. It is not seen as a weak approach, but as one which facilitates the resolution of family disputes in a timely and constructive manner, particularly since the Children Act 1989 promoted the concept of parental responsibility, enduring on the part of both parents in relation to their children even after divorce.
The academic study of family law is no longer confined to one type of family law course, as the potential field of study is so wide that individual law schools often now assemble their own menu of preferred topics, usually in one family law course over an academic year, or two or more shorter single semester courses, roughly divided into marriage, divorce, cohabitation (and the attendant topics such as financial relief) in one module and child law in a second. Some courses are actually identified as a study of the law of relationships. Academic writers increasingly accept that family law is either what the ordinary person thinks it is, or (since teaching time and resources are finite) what the course leader has selected to teach.
The concept of the family has changed over time and is now recognised as not being restricted to married families or heterosexual cohabitation, but to include the extended family, possibly even after divorce and dissolution of cohabitational relationships, and even to include a law of ‘elder abuse’ requiring statutory protection. Thus, family law in practice now effectively equates to a law of relationships. The Human Rights Act 1998 is likely to impact significantly on family law