Former senior High Court judge says marriage laws are outdated

Sir Paul Coleridge, a retired judge of the High Court, told those at the BCR Law Conference held in Jersey last week that family and marriage laws in England and Wales are out of date and no longer fit for purpose. He blamed recent UK governments for not prioritising the need to reconsider our failing marriage laws which are no longer suited to family life in this country.

Sir Paul has identified two key issues with family law at present: the costs and difficulty of entering into, or leaving, a marriage; and the misconceptions of the public with regards to the laws governing marriage and cohabitation. Together, these two issues mean that more people are choosing to cohabit rather than marry, which Sir Paul believes is leading to an increasing number of family breakdowns.

Fault-based divorce is not fit for modern family life in the UK, according to Sir Paul. Back in February of this year, Sir Paul supported Judge Robin Tolson in his controversial decision in Owens v Owens to refuse to grant a divorce to a couple on the basis that “minor” rows are a normal part of married life and do not amount to unreasonable behaviour. Of the decision, Sir Paul commented that Judge Tolson was simply doing what the statute required him to do in applying the “antediluvian” law, and that it “tells us that to have a system that requires judges sitting in court trying to decide whether behaviour is ‘unreasonable’ is completely out of date”. Arguing that divorce law needs to be brought into line with modern society, Sir Paul is eager to see an overhaul of the system and the introduction of no fault divorce.

He also argues that the common misconceptions surrounding divorce allow myths to perpetuate and ultimately lead to “more breakdown, more costs, more hurt and pain”. The former judge argues in favour of promoting marriage and believes more needs to be done to encourage couples to marry. Marriage offers not only legal protection to both parties but also makes it more likely that a couple will work to fix things rather than end it. The somewhat archaic laws that are currently in place were drafted at a time when cohabitation was relatively rare and offered little protection to cohabiting couples. According to The Office for National Statistics, in 2016 3.3 million families in the UK were cohabitating couple families, more than double the 1.5 million in 1996.

Vardags has previously commented on the current status of cohabiting relationships in family law and highlighted that part of the problem lies in the fact that there is still widespread ignorance about the legal status of cohabiting couples and the great myth of the common law marriage. The current law is that there is no such thing as a common law marriage, and cohabitating couples are afforded very few rights or protections, if any. Speaking at a fringe event at the Conservative Party Conference last week, Sir Paul stated that “the problem is that there is a view out there, borne of ignorance I’m afraid, that all cohabiting relationships are of equal worth, of equal value, of equal stability. I’m afraid they are not”.

Sir Paul resigned from his position as a judge in the family division at the High Court in 2014 after being warned by those more senior to tone down his strong views on marriage and on the family justice system. Retiring from his role as a judge meant that Sir Paul was able to focus his attention on promoting the Marriage Foundation, which he founded in 2012. Speaking to The Times, Sir Paul described that he was motivated to develop the foundation by the “inexorable and seemingly unstoppable rise in family breakdown”. The campaign group aims to increase public awareness of the benefits of marriage, both legal and social, for individuals and most importantly, for children. The foundation’s prime purpose is to “see more people forming healthy stable relationships and fewer relationships breaking down”.

The foundation has conducted thorough research into the links between cohabitation, marriage and family breakdown, and the consequences thereof. They state that their research shows beyond doubt that what is best for a child, is parents in a stable and committed relationship. They have found that:

  1. On current trends, any child born today has only a 50:50 chance of being with both birth parents by the age of 15.
  2. Cohabiting parents account for 20.7 percent of couples and 51 percent of annual family breakdown.
  3. 93 percent of parents who stay together until their children reach 15 are married.
  4. There is also a growing marriage gap: 87 percent of high earners (over £43,000) marry; only 24 percent of low earners (under £16,000) marry.

Many judges, lawyers and academics have pronounced their support of the aims of the foundation. Lord Toulson, the former Supreme Court Justice, was a known supporter and argued against giving cohabiting couples the same rights as spouses. Family law experts Baroness Deech QC, Baroness Shackleton and Baroness Butler-Sloss are all patrons of the foundation.

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