Showing posts with label marriage. Show all posts
Showing posts with label marriage. Show all posts
Friday, 29 June 2012
Same sex marriage and polygamy
In all the contention about same sex marriage, one issue was brought up on what might be termed the religious side of the debate, namely that to legislate for same sex marriage would lead to pressure to legalise polygamy. Now this has been described as a cynical ploy by those in favour of the government's proposal and I wasn't sure at first whether this was a genuine concern or not. Thinking through my earlier conclusions about devising and recognising separate religious and civil marriages, I rather think there may be some substance to what is being said.
Neil Addison published an article recently on the subject which you can see here:
Same sex marriage and polygamy - where's the link?
Now I'm not sure that there will be great pressure to recognise polygamy in English law, but giving religious marriage a separate and recognised status may do that quite unintentionally. Have a look at this:
Polygamy in the UK
Already it seems that there are increasing numbers of Muslims living polygamously and they are able to do this without infringing on their religious obligations because it is expressly provided for. Giving a legal status to the nikka means that polygamy gains a status in law which it does not and cannot have at present. On the other hand, if you choose to protect the present position by forbidding multiple wives either civilly or religiously, do you risk being seen to interfere in matters of religious observance? But, you may say, the practice of nikka in some quarters is already infringing on the legal position and we have chosen to do nothing about it. Why not allow Muslims to do whatever they choose? They are consenting adults, after all.
Is polygamy wrong in principle? As to that, I'm firmly with the British Colombian Chief Justice;
"polygyny contravenes women's rights to equality with the male, harms and impoverishes their children, and .... the practice harms ALL society in that it pits younger, poorer men against older, richer males in the search to collect women as concubines in their harems. (Mother Nature has not even made two women for every one man.) Every man who helps himself to four wives is robbing three other men of the chance to have a wife and family of their own, thus making polygyny an anti-social act. As well, while the man has a choice of sexual partners every night, the women must line up and take their turn, just as if they were cows waiting to be serviced by the bull. Moreover, only the first, legal wife and her children are entitled to share in the man's income, pensions, health, dental and vision coverage, etc. The remaining women and their children are on their own, and face poverty. "
Even to consider altering the consistent monogamous stance of English law for as long as there have been records is, so far as I am concerned, unthinkable. Equally, however, to allow some individuals to circumvent the law is unacceptable. If this is happening, and in the light of the BBC report there is every reason to think that it is, the time has come for it to be confronted. As I mentioned previously, an entirely parallel jurisdiction is being constructed and this must be to the overall detriment not only of individuals who may be pressured into accepting it, but also for society as a whole. To me, this is a far more pressing issue than same sex marriage. I really do wish sometimes that politicians could get their priorities right.
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.
Tuesday, 12 June 2012
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.
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.
Thursday, 17 May 2012
There is such a thing as common law marriage!
I give a Michael Caine "not many people know that" award to James Turner QC, who posted on a recent linkedin discussion I started (you can view it here: cohabitation cases) and confounded me with something I genuinely didn't know - there are actually legally valid marriages which are not compliant with the Marriage Act or are recognised foreign marriages. Nope, I never knew that.
However, don't get too excited about this. It is no help at all for those who simply live together in England and Wales. It's one of those very rare specimens which is designed for exceptional cases.
" It relates to a marriage that has taken place..."
In other words, there is something more than just living together. There has to be some event which signifies that a marriage has taken place.
"that has taken place otherwise than in accordance with the requirements of the lex loci celebrationis..."
But whatever marriage there was doesn't comply with the law relating to marriages in the place where occurred.
" in circumstances where it would offend public policy to require compliance with the relevant local law..."
This isn't clear until you consider the example given - two people getting married in a concentration camp. It would be outrageous to say that if you didn't go the register office, you couldn't be married, in those circumstances!
Now all of this may sound pretty academic here in the UK. In the rest of the world, however, it may be far from esoteric. In some jurisdictions, marriage between people of different religions or ethnic groups are or have been forbidden. If such a couple reaches this country - seeking asylum, for example - it is entirely right that English law should recognise their marriage. So it does. However, where there is nothing to prevent a couple from marrying in their own country or circumstances but they just don't do so, English law treats them as being unmarried, and why not?
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.
However, don't get too excited about this. It is no help at all for those who simply live together in England and Wales. It's one of those very rare specimens which is designed for exceptional cases.
" It relates to a marriage that has taken place..."
In other words, there is something more than just living together. There has to be some event which signifies that a marriage has taken place.
"that has taken place otherwise than in accordance with the requirements of the lex loci celebrationis..."
But whatever marriage there was doesn't comply with the law relating to marriages in the place where occurred.
" in circumstances where it would offend public policy to require compliance with the relevant local law..."
This isn't clear until you consider the example given - two people getting married in a concentration camp. It would be outrageous to say that if you didn't go the register office, you couldn't be married, in those circumstances!
Now all of this may sound pretty academic here in the UK. In the rest of the world, however, it may be far from esoteric. In some jurisdictions, marriage between people of different religions or ethnic groups are or have been forbidden. If such a couple reaches this country - seeking asylum, for example - it is entirely right that English law should recognise their marriage. So it does. However, where there is nothing to prevent a couple from marrying in their own country or circumstances but they just don't do so, English law treats them as being unmarried, and why not?
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.
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!
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.
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!
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.
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