Landmark Cases in Family Law

Stephen Gilmore, Jonathan Herring, Rebecca Probert, Stephen Gilmore, Jonathan Herring, Rebecca Probert

• Éditeur: Hart Publishing
• Année: 2011
• ISBN:
  9781847317872
• Édition: 1
• Sujet: Jura
• Sous-sujet: Familienrecht

There are a number of important (landmark) cases in the development of Family Law in England and Wales that deserve detailed examination and lend themselves particularly well to historical examination. Family law cases tend to raise highly controversial issues, often on striking facts, frequently provoking wider social debate and/or extensive publicity. Consequently, the landmark cases chosen for this collection provide considerable scope, not only for doctrinal analysis and explanation of the importance and impact of the decisions, but also for in-depth examination of the social or policy developments that influenced them. The stories behind the cases provide a fascinating insight into the complexities of family life and the drama that can be found in the family courts. In recent years, Family Law has seen enormous changes in law's engagement with the notion of 'family', with the enactment, for example, of the Civil Partnership Act 2004, the Gender Recognition Act 2004 and, more recently, the Human Fertilisation and Embryology Act 2008. As we begin to move forward into the new millennium, this is an excellent time to engage in detailed analyses and 'stock-taking' of the landmark decisions, many of which were decided in the 1970s, and which have shaped modern Family Law. This book provides a series of in-depth studies of the key leading cases, and will be of interest to students and lecturers alike.

1

Introduction: A Journey Through the Landmark Cases of Family Law

STEPHEN GILMORE, JONATHAN HERRING AND REBECCA PROBERT

LANDMARKS AND OUR CHOICE OF CASES

FAMILY LAW HAS been utterly transformed in the past 50 years. In 1960 sexual activity between consenting male adults was still a crime, while transsexualism was barely understood and rarely encountered. Divorce was only available if one spouse could be shown to be at fault, and a ‘guilty’ wife could expect to receive less by way of maintenance than an ‘innocent’ one; moreover, she could expect no share of the family home save what she could establish by way of property law. Considerations of guilt and innocence also affected decisions as to what was still called ‘custody’ of the children, with ‘welfare’ being interpreted through this prism. The contraceptive pill had been developed (just), but was usually prescribed only to the married. Not that there were many unmarried cohabiting couples who might have demanded access to it: few couples lived together outside marriage and fewer still advertised their lack of status.

Today, by contrast, same-sex couples have the option of entering into a civil partnership¹ and at least one major political party is advocating that they should have the right to marry, while the leader of another is happily cohabiting with the mother of his children. Transsexuals can obtain legal recognition of their change of gender.² Divorce is available to all unhappy spouses sooner or later,³ and the courts’ move to a more equal division of assets has apparently made London ‘the divorce capital of the world’.⁴

This is, therefore, an excellent time to engage in some ‘stock-taking’ of the landmark legal cases that have shaped modern family law. The names of most of the cases described in this book will be very familiar to family lawyers; many such readers, glancing down the table of contents, will be able to recite the principle for which each case is now taken to stand. But the very familiarity of these cases may tend to blur just how innovative they were at the time. It is only by returning to the original sources and examining the facts and the context in which they were decided that we can fully understand the decisions and how they were reached. Moreover, as many of the chapters show, it is often only in retrospect that a case becomes a landmark: the afterlife of the case, and its reception and refinement by subsequent judges, is also an important part of the story

The 13 landmark cases discussed in this book are not, as one might expect, all decisions of the House of Lords but were established at various levels of the court system. Some were first-instance decisions which acquired a strong de facto precedent status or were approved in a subsequent appellate decision; others emerged as appellate decisions, sometimes with interesting appellate histories which seem to be material to the decision's impact. This leads on to an important question: what determines whether or not a case should be described as a landmark? As John Mee observes in his chapter, the word ‘landmark’ can be used in several different senses. Perhaps the principal understanding in this context is that of a breakthrough or departure, although, as Mee points out, the term can also be used in the sense of ‘marking a boundary’ or of representing a prominent guiding feature on the landscape. The landmark cases chosen for this book are those ‘breakthroughs’, ‘departures’, ‘boundaries’ or ‘beacons on the landscape’ which we see as having far-reaching implications for family law and policy, whether within the particular area of law under scrutiny or, as in many of the cases, more broadly.

First Precedents

Perhaps the most obvious type of landmark is a case which addresses an issue for the first time. An example is found in the opening chapter of the book, in which Rebecca Probert explores the Roos case.⁵ Almost two centuries before the establishment of judicial divorce in the Matrimonial Causes Act 1857, the first divorce by Act of Parliament had been granted to Lord Roos, allowing him to enter into a second marriage. This marked the beginning of the law's acceptance that an existing marriage could be brought to an end (rather than, as in the case of three of Henry VIII's marriages, found not to have existed on account of an impediment). The Roos case is thus a highly significant landmark in the development of family law; indeed, given the centrality of divorce to modern family law modules, it can be seen as foundational.

Another example is Corbett v Corbett (orse Ashley),⁶ the first case in England and Wales (and probably in any common-law jurisdiction) to define a person's sex for the purpose of marriage. Ormrod J's reasoning and conclusion that a person's sex is determined at birth according to certain congruent biological factors has been highly influential, yet also widely criticised, and remains controversial. Stephen Gilmore's chapter highlights several ironies in the decision and explores its impact, both domestically and internationally. One often-overlooked fact is that Corbett was not in fact the first UK decision to engage with the issue of a person's sex where there were implications for an existing marriage,⁷ and Gilmore reflects on whether Ormrod J's decision might have been different had his Lordship had sight of earlier authorities.

Cases Setting the Tone for the Developing Law

Sometimes a case becomes a landmark because it interprets the existing law in a way which sets the tone for, and exerts a powerful hold over, the law's development. The decision of Lord Denning MR in Wachtel v Wachtel,⁸ with its influential ‘one-third rule’ and approach to conduct in ancillary relief cases, provides an example. His Lordship's focus on the needs of the parties and assumptions about the roles of spouses played an influential part in the development of the law on ancillary relief. Perhaps even more influential, however, was the court's approach to the conduct of the parties in ancillary relief applications, endorsing Ormrod J's view in the court below that conduct should only be taken into account if ‘obvious and gross’. The case set a tone for the courts’ approach to conduct following the Divorce Reform Act 1969, an approach which was subsequently endorsed (if in different words) by Parliament⁹ and the House of Lords.¹⁰ Gillian Douglas examines the background to the case and analyses exactly why this particular aspect of the case was to have a lasting influence.

The early 1970s also saw a number of important child-law decisions that set the tone for subsequent developments.¹¹ Nigel Lowe examines the decision in J v C,¹² a cornerstone of modern child law. The House of Lords held that the child's welfare should be the court's sole consideration rather than simply first among many, and that that principle applied not only in cases of a dispute between parents, but also as between parents and third parties. It set the tone for the development of the courts’ approach to deciding matters with respect to children's upbringing and remains to this day a leading decision interpreting the paramountcy principle in section 1(1) of the Children Act 1989. The House of Lords’ interpretation of paramountcy has attracted considerable academic criticism, and has become increasingly controversial following the enactment of the Human Rights Act 1998.

A third example is Marckx v Belgium,¹³ which opened up family law to the significance of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). It rejected the view that the ECHR applied only to direct state interference in family life and did not apply to family law as such. As Walter Pintens and Jens Scherpe discuss in their chapter, recognising that the ECHR could be used to challenge the normal operation of family law in an area such as succession exposed family law to a whole new set of potential rights-based challenges. While the significance of that in terms of changes to the substantive law may not have been as great as some expected, it has undoubtedly impacted on the language used to discuss and challenge family law.

Breaking with Past Doctrine

Sometimes the landmark case, while setting the tone for the law's development, will also represent a significant break with past doctrine. Perhaps the most obvious example in this volume is R v R,¹⁴ in which the House of Lords broke with the longstanding rule that a man could not rape his wife. In abolishing this marital rape exemption, the court undertook an examination of the legal rights and obligations of marriage. The case emphasised the need for the legal nature of marriage to keep in line with general social understandings of marriage. However, Jonathan Herring in his chapter argues that, despite its apparent progressiveness, the law is yet fully to protect the sexual autonomy of wives.

A second example is White v White,¹⁵ examined by Lizzie Cooke. This landmark in the law of financial provision and property adjustment ancillary to divorce overruled Court of Appeal authority which had long established a ceiling for quantification of ancillary relief in ‘big-money’ cases based upon a spouse's reasonable requirements. The House undertook a major re-examination of the courts’ principles, establishing a non-discrimination principle in the assessment of the parties’ respective contributions, and a ‘yardstick of equality’ against which provision was to be tested. White plays a central role in the courts’ approach to ancillary relief and has been highly influential in subsequent developments.

Bulwarks

Burns v Burns,¹⁶ by contrast, marked an important ending in the realm of family property, and constitutes a landmark in a rather different sense. In the wake of the retirement of Lord Denning, the Court of Appeal took the opportunity to reassert a restrictive approach to the family home, and to declare that it was for Parliament, rather than the courts, to fashion new remedies in this context. That no such legislation has been forthcoming in the 25 years that have elapsed since this decision testifies to the difficulties of the issues involved, and to the practical impact of Burns upon a whole generation of cohabiting couples. John Mee argues in his chapter that Burns should remain a landmark – in the sense of defining the boundary between property law and family law, as well as the proper limits of judicial activism.

Landmarks by Outcome and/or Reasoning

As a number of the cases in this volume illustrate, the landmark nature of a decision sometimes extends well beyond its strict ratio decidendi, its creation being not so much in the facts and outcome as in the reasoning by which the decision is reached. J v C provides a good example. The importance of the case lies in the House's interpretation of the welfare principle; the outcome of the case, affirming the lower courts’ decisions, was of little impact. This perhaps explains why, as Lowe observes, J v C was rather a slow-burner, taking some time to make an impact. As Rachel Taylor comments in her examination of Poel v Poel, J v C was not cited in that case, although it was decided shortly after J v C. The outcome of Poel, however, would probably have been the same whichever approach the court had taken. Its significance also lies in the impact its reasoning had on subsequent cases with less straightforward facts. It proved to be the starting point for a substantial body of case law on the issue of whether a parent with whom a child resides should be permitted to relocate out of the jurisdiction with consequent reduction of contact between the child and his or her non-resident parent, and is still cited as a leading authority for the importance of child welfare in these decisions, while also acknowledging the importance of respecting the reasonable decisions of the resident parent.

In other cases, however, the result itself has more impact, although the reasoning may also be important. In Gillick v West Norfolk and Wisbech AHA,¹⁷ for example, the abandonment of absolute parental authority and the holding that a child under 16 could give legally effective consent were themselves striking and potentially revolutionary. Yet, as Jane Fortin discusses in her chapter, the landmark nature of Gillick also lies in its reasoning, and the impact that the general principles articulated by the majority in the House of Lords has had on the issue of legal recognition of children's autonomy interests. Whatever Gillick's precise ratio decidendi, it undeniably placed the idea of children's autonomy rights in the legal consciousness in a way which had not previously existed.

HOW AND WHY DO LANDMARKS EMERGE?

How and why did these landmark cases emerge? In many instances, the cases and their outcomes are clearly products of their time: the result of a particular set of facts which would only have occurred at that time or of a specific issue that became particularly pressing at the time. Corbett would seem to be an example of the former – caught in time between the availability of gender reassignment surgery on the one hand and the limited medical knowledge on the other – along with the fact that marriage was still the norm. If the Corbetts had chosen to cohabit the issue would never have arisen.¹⁸ Gillick is perhaps an example of the latter – reflecting the fact that an increasing number of teenagers were having sex under the age of 16. Given that contraceptive advice was only available to the married until 1967, the case would have been inconceivable 20 years earlier. By contrast, in some cases the interesting question is why the developments in the law came so late, for example in R v R and the Roos case. Although the latter is the earliest case in this volume, it is somewhat surprising that divorce had not been accepted earlier, given the developments in the previous 120 years.

Some of the cases are clearly influenced by social change and it is unsurprising, therefore, that the bulk of the cases discussed in this volume were decided after 1970. Reforms enacted in the late 1960s led to profound changes in families and in the rules that applied to them. Key among these reforms was the Divorce Reform Act 1969, which came into force in 1971, and the accompanying changes to the courts’ powers to reallocate assets on divorce. The recognition that a marriage might break down on account of faults on both sides, or even though neither party was at fault – together with a changing view of what constituted fault – led to a different and less moralistic framework operating in the context of the division of assets on divorce and of the care of children post-divorce. Yet, as Douglas's chapter shows, the legislative reforms did not dictate this change in approach: in the very first case on the Matrimonial Proceedings and Property Act 1970, the extent to which each spouse was seen to be at fault was still a relevant factor. Wachtel, however, signalled a new approach.

But the fact that the 1970s saw the passage of measures such as the Equal ...