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Law to fit the modern family



Society has changed enormously in recent decades, and nowhere is this truer than the family.  Simon Walker, Associate within the Family Practice at Mogers Drewett examines how the decline of the traditional family unit is shaping the legal landscape.

The old notion of the ‘nuclear family’ with working father, stay-at-home mother and 2.4 children is well and truly dated now. Non-standard is becoming more and more the standard.  Fewer couples are getting married in the first place, marriages more frequently end in divorce, working parents are the norm, we have civil partnerships, same-sex marriages, pre-nuptial agreements, post-nuptial agreements – the list goes on.

It’s fitting then that this week is My Family Week, designed to celebrate all families irrespective of their make-up or their circumstances and help change social attitudes.  It’s also an opportunity to reflect on how changes to the traditional family structure have led to laws being reconsidered, modernised and developed.

There have been some interesting and potentially highly significant cases that could shape the way legal developments are heading.  For example, divorce has long been granted on only a small number of rigid criteria.  These are:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. 2 years separation by consent
  5. 5 years separation without consent

Most divorces are based on either adultery or unreasonable behaviour as these are the only two facts that will allow the petitioner to proceed with a petition without the need to wait for a period of two years.

But a case that came to the Court of Appeal earlier this year caught huge attention when, in Owens vs Owens, the wife’s petition for divorce on the grounds of unreasonable behaviour was turned down by the judge on the grounds that Mr Owens’ behaviour was not unreasonable enough to warrant a divorce.  This left Mrs Owens effectively ‘trapped’ in an unhappy marriage.

Mrs Owens has indicated that she intends to take her case to the Supreme Court, whose decision will be very closely watched indeed.  The case has reinvigorated the call by lawyers and their clients for ‘no fault’ divorce. A change in the law will be a matter for Parliament, and unlikely to be considered in the foreseeable future with the other demands that face Parliament at this time.

It is certainly an area to watch – will the time come when divorce is ‘modernised’ such that parties can divorce simply because the marriage no longer works for them in one way or another?

Another area that is of growing significance in the modern age is that of surrogacy.  Along with those who are unable to start a family due to infertility difficulties, increasing numbers of same-sex couples are finding surrogate mothers to give birth to their child. This is now extending to single parents too.  There has been a dramatic rise in those choosing to remain single as a life style choice. This was effectively a bar to having a family and therefore only chosen by a few.  However, recent changes in the surrogacy law means that remaining single does not mean being childless.

The trigger was the case of A v P [2011] in which one of the parties of the application sadly died. The question for the court was whether the remaining party could continue.  It was held that it was in the child’s best interest for the application to proceed but this ruling did not change the statute. Yet, this  has now been successfully challenged on the basis of infringing basic human rights. The challenge was brought under Article 8 rights to private and family life, Article 12 right to found a family and Article 14 anti-discrimination and that the current wording of the legislation was incompatible with those rights. The Secretary of Health conceded the point and on 14 December 2016 Baroness Chisholm of Owlpen noted to the House of Lords that the legislation will be updated in due course.

It is now an option to have a child by way of surrogacy as a single person – what the level of uptake will be is yet to be seen.

The rich and complex make-up of modern society is something that My Family Week is rightly celebrating.  There are signs that the legal statutes that govern our family law are moving with the times too.

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