Labour’s family fortunes
Date: 04 September 2009
Authors: Louise Spitz
Issue: Vol 159, Issue 7383
Categories: Opinion, Family, Divorce, Child law
From declarations of love for the NHS to the promise of reform of the exam system, there is no doubt an election is in the air. While family law is not likely to feature very much in the forthcoming battle for votes, we may well see attitudes to families take a central place in the main parties’ strategies to win hearts and minds. This could be very significant for family lawyers as policy tends to indicate the direction of the legislation which will follow.
Former Conservative Leader, Iain Duncan Smith’s Centre for Social Justice recommends a “back to the future” style compulsory cooling off period for couples wanting to divorce, not dissimilar to the last Conservative government’s attempt at divorce reform in 1996. We may see more restrictions on divorce and support for marriage if the Conservatives return to power but David Cameron has yet to declare the Party’s policy so we don’t know how influential these recommendations will be.
There is greater scope to assess the future direction of Labour’s policy. As the countdown to the next election gets underway, the government has announced plans to legislate for a Child Poverty Bill and to enable more reporting of family proceedings in an Improving Schools and Safeguarding Children Bill. There are also plans for a Families and Relationships Green Paper which will have no chance of becoming law this side of the election.
Thorny territory
Back in 1996, the then Opposition’s contribution to debate on the ill-fated Family Law Act gave an indication of Labour’s approach to the thorny political territory of family law: “Labour Members will be guided by the following criteria: how we can best support marriage and family life,...encourage shared parental responsibility and...protect vulnerable family members”.
Fresh from a landslide election victory, Tony Blair set up a ministerial group on the family, chaired by Jack Straw. Its purpose was to “develop a coherent strategy to increase the support and help available to families”. A consultation paper, Supporting Families, was published in November 1998. Tellingly, the sections on family justice came within the chapter headed “strengthening marriage” and covered a range of options including the desirability of pre-nuptial agreements, guiding principles in ancillary relief cases and group information meetings for separating couples involved in disputes. However, none of these reforms was actually taken forward. The government has instead left it up to the courts to develop the law in a piecemeal, case by case way.
In contrast, the introduction of pension sharing for divorcing couples was an early success for Labour. The law introduced in 2000 allowed a former spouse to have a share of a pension allocated to her either within her former husband’s pension scheme or through a credit to a separate scheme. The advantages to the recipients include the ability to set their own retirement date and to make independent investment decisions about pension benefits. The benefits survive the death of the pension debtor and the remarriage of the pension creditor.
Welcome reform
Another welcome Labour reform was the introduction of civil partnership for same sex couples. By enabling same sex couples to form legally binding relationships akin to marriage, the legislation is widely regarded as having an effect beyond its scope by helping promote equality for the gay community in all spheres of life.
Credit is also due for protection for “chained women” who were previously denied a religious divorce; greater protection for the victims of domestic violence and new laws to help prevent forced marriage.
The Adoption and Children Act 2002 was the first major overhaul of adoption legislation since the 1970s and was long overdue. However, it was the provisions which allow unmarried couples to adopt jointly which received the most attention, widening the pool of couples coming forward to adopt and recognising legally the relationship an adopted child has with both parents even when they are not married.
Under huge pressure from fathers’ groups, the government should also be credited for its measured approach to the problem of enforcement of child contact orders. The Children and Adoption Act 2006 provided new powers to deal with parents reluctant to comply with contact orders, but it remains to be seen whether they will be effective as much depends on local availability of support services.
The greatest missed opportunity is the failure to provide fair solutions for cohabiting couples. The government’s reluctance to tackle this important law reform is difficult to understand when they have introduced civil partnerships and adoption by unmarried couples. As the number of families headed by cohabiting couples continues to grow, action is desperately needed to provide a legal framework for fair solutions when such relationships go wrong. This should be natural territory for a Labour government professing to treat all families equally.
Not too late
There is still time to bring forward legislation based on the Law Commission’s recommendations in the forthcoming Queen’s Speech. Taking this step now would ensure a lasting legacy for Labour’s reform of family justice.
Louise Spitz is a consultant at Manches LLP
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