Melanie Phillips

29 May 2006

Conduct in court

Published in: Daily Mail

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Through court rulings and initiatives stretching back more than three decades, judges and lawyers have succeeded in reshaping family life in this country by progressively hollowing out the institution of marriage.

This destructive process was pushed a big step forward last week by the Law Lords' seminal ruling on the division of the marital spoils after divorce. This week, it may lurch still further towards social disaster when the Law Commission - the Government's influential law reform advisers -- publishes proposals which are expected to say that cohabiting couples too should be given rights to each other's wealth if they split up.

The Law Lords' judgment has rightly been termed a 'gold-diggers' charter, as a result of which men may be unwilling to marry because they stand to lose so much to unprincipled ex-wives.

At the heart of this judgment lay a new doctrine that ex-spouses should always be compensated for any loss of earning capacity sustained by getting married, even if the marriage was short-lived.

Not only was this doctrine grossly unfair, but it effectively reinterpreted marriage from a spiritually-based fusion of selves into a self-centred business transaction between economic interests.

Worst of all, however, was the Law Lords' explicit repudiation of the notion that the spouses' conduct should be a factor in any settlement. But responsibility for one's conduct should lie at the very heart of justice.

Ruling that a spouse is entitled to a slice of the marital assets even if he or she has effectively torn up the marriage contract flies in the face of principles that lie behind every other area of contract law. It is a legal license to be irresponsible.

As for cohabitants' 'rights', if those who merely live together are entitled to the same benefits as those who get married, clearly much of the rationale for marriage disappears. Marriage is unique because it alone creates not a 'partnership' but the physical union that is the basis of our human identity.

In recognition of this, it affords certain benefits revolving around a solemn and binding undertaking. If those benefits are given to relationships that don't meet such criteria, marriage becomes meaningless.

The full impact of these two latest developments, however, can only properly be appreciated in the context of a long line of positively lethal judicial and legal developments going back to the seventies -- a process which, incidentally, happens to have made a lot of money for lawyers as the family itself slowly unravelled as a result.

What started in 1969 with a Divorce Reform Act which aimed to reduce the damage done by marriages that had broken down turned rapidly into a principal weapon against marriage, producing an unstoppable rise in divorce and the progressive hollowing out of marriage as an institution.

Although many still aspire to marriage, it has become so fragile that families are breaking down at an ever faster rate. The rate of cohabitation has correspondingly soared - and with it the rate of relationship breakdown, with a resulting explosion in the number of fatherless children.

Nearly half of all children are now born out of wedlock. But marriage is the building block of a society. If it collapses, society follows suit.

Of course, such a profound cultural shift cannot be laid exclusively at any one door. At root, it is the product of the me-society brought about by the retreat of religion and the replacement of the belief in 'what is right' by 'what is right for me'.

But in this complex process, the legal profession has played a hugely important role. At its heart lay the point-blank refusal by Britain's family judges to make individuals take responsibility for their conduct within marriage.

In the debates leading up to the 1969 Divorce ReformAct, Parliament made it clear that individuals should still be held to account for the breakdown of a marriage. But virtually from the start, the judges decided that they would not make such decisions because apportioning blame in these private domestic tragedies was impossible.

In saying so, they effectively declared that there could be no justice in divorce proceedings. And so it proved. The spouse who tore up the marriage vows was often rewarded by the courts, while the victim of the marriage breakdown was effectively punished not just by the spouse's behaviour but also by the loss of house or children, or other financial penalties.

With conduct now irrelevant, the courts progressively loosened the practice of divorce law. This produced social changes such as the rise of unmarried motherhood. This in turn led family lawyers to claim that the law needed to modernise - by abolishing the status of illegitimacy, for example -- to keep pace with such changes. So the legal profession progressively turned the ratchet of family breakdown.

Now cohabitation is turning into the same self-fulfilling process. The relentless undermining of marriage led to an explosion of cohabitation. Lawyers then complained that cohabiting couples wrongly assumed that they had the same rights as married couples.

But instead of concluding that people who deliberately choose not to enter into the obligations of marriage should obviously not be granted benefits which derive from such marital duties and sacrifices, family lawyers have decided that such a distinction is an injustice and that unmarried couples should enjoy similar 'rights' to those who are married. Rights, in other words, without the responsibilities that give them meaning and legitimacy in the first place.

Over the years, the Law Commission has been consistently hostile to marriage, pushing for easier divorce and for cohabitation rights. In 1988, it said there was no more need to support marriage than 'any other living arrangement', and dismissed the high rate of divorce as no great cause for concern.

For many years, the key person driving the Law Commission's anti-marriage agendas was Lady Hale, now a Law Lord and one of those who delivered last week's divorce ruling.

Although in the past she has said she does not want to destroy marriage or give cohabitants the same rights as married couples, she also infamously remarked, back in 1980: 'Logically, we have already reached a point at which...we should be considering whether the legal institution of marriage continues to serve any useful purpose.'

In the Law Lords' ruling, Lord Nicholls declared in similar vein that fairness was 'an elusive concept' that was based on moral and social values which changed 'from one generation to the next'.

Not so. Fairness is based on individuals being held to account for what they do. Rewarding them when their behaviour has not merited it is profoundly unfair. This principle is fundamental; it most certainly does not change from one generation to the next, but remains absolutely constant as the immutable foundation of morality and justice.

What has changed is the moral fibre of the judiciary, which appears to have disintegrated into a mush of moral relativism. As a result it is not just marriage that is being eviscerated but also the very concept of justice that should underpin the rule of law - but which, in the hands of our most senior judges and legal reformers, is fast becoming instead the most elusive concept of all.

About Melanie

Melanie Phillips is a British journalist and author. She is best known for her controversial column about political and social issues which currently appears in the Daily Mail. Awarded the Orwell Prize for journalism in 1996, she is the author of All Must Have Prizes, an acclaimed study of Britain's educational and moral crisis, which provoked the fury of educationists and the delight and relief of parents.

Read full biography

Books

  • The World Turned Upside Down
  • Londonistan
  • The Ascent of Woman
  • America's Social Revolution

Contact Melanie

Melanie Phillips
Daily Mail
Northcliffe House
2 Derry Street
London W8 5TT

Contact Melanie