How many types of marriage are there? How many should there be?

This week sees the end of the period of consultation for the proposed introduction of same sex marriage.I have been thinking this over ever since the proposal was first mooted.  From a family lawyer's perspective, I am coming to conclude that the law of unintended consequences is likely to kick in if this is enacted and rather more trouble is going to come out of it than was ever foreseen.  Let me explain what I mean.

Religious marriage and civil marriage.

In its consultation document on same sex marriage, the government says, "Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony."

They then go on to say, "From [these] discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done."

So I got to wondering, is this right?  Are there two different types of marriage recognised in law, religious and civil?  You know, I don't think there are actually.  And what's more, as I have thought this through, I think it's enormously important that there shouldn't be.

The Marriage Act 1949 (as amended)

The Marriage Act 1949 governs marriages in England and Wales.  It has been amended down the years but it cannot be simplified in the way that the Government's consultation suggests.  Part I of the Act deals with who can and cannot be married.  Part II deals with marriage in the Church of England.  Part III deals with marriages under a Superintendent Registrar.  Now that looks like the establishment of two separate types of marriage, religious and civil, until you look at s.26, which falls in the Registrar's half of the draw.  This sets out the Registrar's authority for marriages in various establishments, including synagogues and Friends Meeting Houses (Quakers).

So the extent that there is a distinction in law, it's between Church of England ceremonies and all the rest.  In fact, the longer you look at the Act, the less easy it is to make any clear cut separation into the two categories which the Consultation suggests.

This came to the fore recently in a High Court decision which concerned what the "husband" and the "wife" at the time saw as a valid marriage  but which wasn't.  You can read the judgment here -

Dukali v. Lamrani

The parties in this case went through a ceremony at the Moroccan embassy which they believed, and were advised, was valid in both English and Moroccan law.  As Holman J determined, though, it wasn't.  As a result, English law makes no provision for the wife on the ending of the relationship.

But why is it important?

Well, whether you like it or not, various religions teach uncompromisingly that same sex sex is morally wrong.  As marriages can presently be celebrated in a variety of religious premises, if same sex marriage is approved, on the face of it, it would be a clear breach of equality legislation for a church to refuse a same sex marriage ceremony to a gay couple. So the state would be seen to have legislated in a way which requires a religious body, presently entitled to institute a valid marriage, to do so in a way forbidden by its religious rules.

By trying to establish two separate identities for marriage, the government clearly hopes to sidestep this issue.  But will it work?  As I say, I don't believe that the Marriage Act is open to this interpretation anyway.  The only real distinction arising by virtue of the Act is valid marriages and invalid ones.  Any ceremony or celebration which does not comply with the provisions of the Act simply isn't a marriage.

Even if the Act did draw a valid distinction, this doesn't solve the problem.  Neil Addison is a practising barrister who happens also to be a Catholic.  He has pointed out on his blog that European law doesn't permit different treatment.

Religion law blog

He cites an authority to the effect that the European Court "reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage."  To be quite honest, this should come as no sort of surprise at all.

So as far as I'm concerned, to provide for same sex marriage, the government will first of all have to legislate for there to be two forms of marriage - religious and civil. This is the only way I can see for there to be two separate systems and might, and I would emphasise that this is by no means certain, might allow for religions to continue with ceremonies which excludes same sex couples.

The law of unintended consequences

I was quite shocked early this year (I think it was) to read an account of a family law seminar at which a solicitor from a leading practice, who is himself a Muslim, stated that probably around 85% of Islamic marriages are not valid in English law.  I have since asked one or two practising Muslims of my acquaintance if this accords with their perceptions and they confirm that if anything, it's an underestimate.  Muslim couples are going through a ceremony at the mosque, which is valid in the religious context, but they are not then going through the formalities needed to register themselves as a married couple according to the law of the land.

This in turn means that women in particular are at risk of losing out.  As they have no recourse to the divorce courts of the land, they are left reliant on the sharia courts only if the "marriage" fails.  So by the back door, we find different communities living according to entirely different jurisdictions and principles.  I really struggle to think of anything more divisive!

All citizens of the country should be subject to the same law.  Everyone should have the same rights before the law and all should have identical responsibilities.  This, I believe, is of fundamental significance and is a bedrock of society.

I therefore would hotly oppose any proposal which separates and legislates for different forms of marriage.  There should be one form and one only.  There should be nothing to encourage the legitimisation of a separate religious status which deceives parties into thinking they have legal protection and recognition when they do not.  Indeed I would go further - I would much prefer to see legislation outlawing ceremonies which purport to be valid marriages when they simply aren't.

Are two separate jurisdictions feasible?

At present, we have one simple question at the outset of a divorce case - are the parties married? Without a marriage, there can't be a divorce.  Without a divorce, there can't be any invocation of or reliance upon the financial provisions of the Matrimonial Causes Act.

Now if we have separate forms of marriage, the courts risk becoming reliant on religious bodies deciding whether parties have been validly married or not.  And as we all know, religious authorities seem quite skilled at disagreeing even on the fundamentals of their own beliefs!  Is this really what we want?

The alternative is simply to say that as with the present day Islamic marriage, it will just have no legal recognition and no access to remedies on divorce.  For me, that would be the worst possible outcome.  Already we see at least one community withdrawing into itself in this area of law.  We should be legislating against this, not to encourage it.  A fractured and divided society is highly dangerous - both history and current affairs should make this entirely clear.  I think there needs to be a much more careful and reflective approach to this whole question.  If the price to be paid for this proposal is to drive certain communities to turn in on themselves and opt entirely out of the civil law, this would be far too costly.




Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Designer Families 2 - Now that didn't take long, did it?

Family Law Week has just produced the judgment in the case I mentioned in an earlier blog - the Court of Appeal has decided an appeal by a father against the very limited contact he was permitted with his child who lived with her lesbian mother her mother's long term partner.

You can see the earlier blog here: Designer families - can they ever work

I ended that post by asking the question, do I need to change my advice to clients?  Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings?  Well now we know the answer - it's no!  I can carry on just as before.

The report is now on bailii and is quite short and digestible -  A v. B and another

The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order.  In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life.  The Court of Appeal shared those concerns.

Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded.  Thorpe LJ says of this, "I would not endorse the concept of principal and secondary parents. It has the danger of demeaning the known donor and in some cases they may have an important role. In the present case some would say that the primary carer is the full-time nanny."

Secondly, it highlights the inherent weakness of limiting parenting to function or time spent.  That really is the effect of that last sentence.  It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth?  A good parent may well do all these things, but so, perhaps, does a good nanny!

Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them.  Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different?  "I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created."  In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?

One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it.  Sometimes a judge can make the right decision but for the wrong reasons.  However, that on its own won't be enough of a reason for appealing the decision.  The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child.  That's why the appeal was both heard and successful.





Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Designer families - can they ever work?

Two recent cases have brought before the courts what you might term designer families.  The more recent of these is awaiting a decision of the Court of Appeal, as reported by the Telegraph here:

Lesbian couple and the gay father

and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.

The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.

P and L (1)

P and L (2)

Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children.  Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one.  However interpreted, they are defined by heterosexual relationships of varying permanence or duration.

Doing family differently


These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex,  cannot biologically produce children.  Some external input is needed for this to happen and so a rather more planned approach has to be taken.  In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life.  Where the problems have arisen is that the fathers have a different version of what was agreed or expected.

I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement.  What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.

The worst form of equality?

Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests.  ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult.  Here we have two girls, aged 10 and 6.  A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned.  They intended that person to have involvement in their children's lives.  They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children.  After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.

"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).

Equal inability to prioritise a child's needs is not an equality to strive after!

How to plan the new family structure

The judge describes the adults as being intelligent professional people.  Perhaps the key part of his first judgment is as follows:

"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected." 

In his second judgment, Hedley J describes the family planning process in these terms:  "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."

Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely.  The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."

In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."

And how not to!

You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families.  Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."

The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways.  It involves " highly-paid professionals living in central London."  The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments.  By contrast, the mother's counsel is recorded as saying,

"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."

"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."

"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."

"Their choice of family life for their child should be respected."

A new and exclusive test for alternative families?

So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults? 

So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family?  And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?

For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed.  Do I need to change that advice?

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.