— Sofia Lagergren is a solicitor at McKinnells in Lincoln, specialising in family law. She deals with issues concerning contact with and residence of children, divorce, civil partnership and financial issues following the breakdown of relationships.
The current proposal by the government to permit same sex marriage is causing controversy in some quarters. Having said that, if the proposals were to go ahead then it would have been an ideal opportunity to have a root and branch reform of marriage and divorce laws in general. This opportunity looks like slipping by.
We currently have a mish mash of different ways to legally enter into a relationship and a corresponding variety of ways to deal with when it ends. To understand this, it is helpful to look at the historical context to understand where we were, and where we are now.
Until quite recently, the law did not recognise any relationship other than marriage. Co-habitation was frowned upon socially and the children of a couple who were not married were stigmatised as illegitimate. Such children had no legal rights to property, for example, on the death of their father. This injustice no longer applies, but the law still falls short of giving the same rights to property on the breakdown of a relationship to those that apply to a married couple.
This can create real hardship for women who, after a long relationship breaks down, can be left literally penniless and homeless. Judges have, over the years, been quite inventive in applying trust law to help someone in this situation, but this is no substitute for the clearly defined property rights that a woman would have had if she had been married.
Similarly, same sex relationships have only recently become legally recognised. Until the second half of the 20th century they were illegal, with criminal penalties for those caught. Now the law recognises civil partnerships, although they still fall short of the recognition given to marriage.
While this debate rolls along, the divorce process itself is in need of change. The Divorce Reform Act 1970 was a radical change from the previous state of the law. Until 1970 divorce was a messy process. Hearings were in open court, with the public able to listen in on sad tales of marital disharmony and betrayal. The reform act, which is still the basis of divorce law today, brought in the concept of divorce without fault, but fault still remained, with adultery and unreasonable behaviour still options.
We still have antiquated legal terms such as decree nisi and decree absolute, with a six-week gap between the two. This is a hangover from the time when someone called the Queen’s Proctor had to investigate each case individually to see if the divorce could be allowed or refused.
All this is completely unnecessary now and we would be better to look at systems in other countries, where the divorce process has been simplified, yet requires thoughtful and dignified input from both parties.
Instead we have a system verging on not being fit for purpose, which can sometimes lead to more stress and upset in what is already a difficult process. Rather than having another layer of bureaucracy for same sex marriages, wouldn’t it just be easier to have a single set of laws for all?