Tuesday, 1 May 2012

Is marriage a good thing? Should it be encouraged?

There's a lot of excitement about Sir Paul Coleridge and his Marriage Foundation at the moment. Sir Paul is a High Court judge in the Family Division and sits in very heavy weight family finance and children cases.  He sees the proliferation of divorce as a pernicious and damaging feature of modern society, which needs to be rolled back.  The Foundation he has started is a first step in reestablishing marriage as a durable and indeed permanent relationship.  Well, that's the plan anyway.

Just have a look at how the Telegraph and Mail have presented the new initiative:

The Telegraph

The Daily Mail

Let me put my cards face up on the table - I've been married for just a few months short of 25 years now and I'm in no kind of hurry to change that.  However, for over 16 years I have been a divorce and family lawyer for at least 50% of my working day, so I'm not exactly unfamiliar with why marriages fail.  I regard divorce as being a bad thing - an admission of failure.  However, I am entirely certain that sometimes it's an entirely necessary thing.  Often I have wondered how it is that a client has persevered with a marriage which has been clearly very damaging to him/her and, very often, her/his children.  Abusive relationships are not something to hang onto and in fact we know that abusive behaviour is learned and cascades down the generations if someone doesn't take action to break the cycle.

The truth is, some people really try hard to maintain a marriage and others just have little if any real reason to bail out.  One thing I am certain of - by the time people reach me, it's far too late to put the marriage back together, 95 times out of 100.  As a result, I simply don't sit in judgment on my clients.  That's not my function.  I don't have to believe in the inherent justice of my client's cause to do a really good, professional job.  I'll do that for anyone at all.  Some people have difficulty understanding that - they want me to affirm my belief and personal commitment to their cause.  I can't do that because if I start doing so, I will end up assessing and judging my clients and that wouldn't be right.  I'll always advise them on the strengths and weaknesses of their case but I won't pass moral judgment on the choices they're making.

Now whatever your marital status, you'll have your own take on things.  At the other end of the spectrum from the Daily Mail lies Natasha Phillips of Researching Reform.  She comments on it here:

Researching Reform

So in the blue corner we have the Mail saying that this judicial initiative is something the country has needed for years and in the red corner we have another commentator saying that it renders Sir Paul unfit for judicial office!  Quite a polarisation, you may think.

Unfit for the profession.

I confess that I am becoming more and more troubled by the number of occupations which are now deemed to be closed to people who in good conscience find themselves either uncomfortable with a part of the duties of the job or find them unconscionable altogether.  Midwives who are against termination cannot seek duties which do not include management of abortions, registrars who do not approve of civil partnerships likewise and now judges who are less than starry eyed about divorce seem to be in the firing line.

If I were disabled, I would have a right to expect reasonable adjustments by my employer to enable me to continue working, and this might include allocation of duties.  If an employer institutes a policy which prevents female employees from accessing some sort of benefit, for example because they generally have greater family responsibility, they run the risk of being found to have acted in a discriminatory fashion and be liable for compensation.  However, if you are found not to share the opinions of our liberal elite, you run the risk of being deprived of your very livelihood.  Natasha, in reply to one comment on her post, is saying that the mere fact that Sir Paul has a jaded view of divorce means that he is clearly incapable of implementing the law and complying with his judicial oath.  Therefore, he's got to go.

I'm sorry but I just can't agree.  I worry that we're losing the right to disagree.  Why can't we allow people some scope to be who they are?  Why is it vital to impose our own world view on others?  That's the very antithesis of liberal democracy, so why is it happening?  Why on earth is it so unforgivable to promote healthy and fulfilling marriage, especially where the proponent is someone who has direct, relevant and downright comprehensive knowledge of the alternatives?  So not everyone is going to succeed in building those marriages - we divorce lawyers are there to help them.  But there's no reason why we shouldn't aspire to the best and do anything we can to build and support it, is there?

Judges should be passive

What I think Natasha wants to forbid is judges becoming proactive and she is insisting that they remain reactive.  On her terms, a judge is allowed only to deal with the individual and not the general.   Sir Paul is effectively saying that his conviction is that a good marriage is a good thing and benefits society generally and children in particular.  This may be based substantially on his experience as a judge and dealing with the unfortunate individuals who have appeared before him, which would mean that he is applying his knowledge of the particular to draw conclusions of general application.  Why should he not be entitled to do this?  Having seen first hand the misery which broken relationships bring, why should Sir Paul not be entitled to try to do something to help people avoid them?

Other people's insecurities

The real issue with Sir Paul's Foundation, it seems to me, is that it treads on a lot of people's corns.  Quite a number of people with failed marriages seem to take it as an implied personal criticism if someone raises marriage as an ideal.  Likewise, there seems to be extreme insecurity with those who cohabit and are not married.  Of course in the latter case, insecurity is justified as their legal position is hugely different from those who are married.  I suppose it's the idea that society might sit in judgment on our relationships and their failures and say that we have fallen short of the mark which makes some react with what verges on hostility.    And in the face of hostility, I don't have the most optimistic feelings about Sir Paul's chances of engaging with the unconvinced!

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