Then and now – family law's direction of travel

Abstract

In order to convey vividly the difference between the assumptions and culture of family law litigation at the beginning of the 1960s and the present time, a random selection of reported cases at the earlier time are compared with a random selection reported at the later time. The result indicates that contemporary family law appears to be much more closely engaged with people's actual experiences and in seeking to resolve their problems than formerly. The implications of this for the future direction of family law and practice are considered.

Keywords::

• Family litigation
• family history
• legal profession
• family justice

Acknowledgements

This article was written and presented as a lecture in the Oxford Law Faculty before the publication of Munby (2013). Not surprisingly (and happily!) there is consistency in the broad picture presented by the two articles. They do, however, highlight different themes, and hopefully the two together provide a helpful perspective to current developments.

Notes

^1. For the first major study, see Glendon (1989). See also the various contributions to Cherlin (2010); Eekelaar (2006), pp. 22–31; Katz, Eekelaar, and Maclean (2000).

^2. Of which there were 28,000 in 1968: Eekelaar (1978, p. 199).

^3. That was because the courts considered that they had inherent power to protect a litigant before it from undue pressure from another litigant.

^4. This restriction still exists, but the period has been reduced to 1 year. It is an unusual feature of English law.

^5. The Queen's (or King's) Proctor was a government official who could intervene to assist the court in difficult cases, or prevent divorce decrees being given in breach of the strict rules of fault, for example, if the parties were in ‘collusion’. This power is no longer exercised in family cases.

^6. The report does not say what the eventual outcome was: but it is possible that the same facts which were insufficient to get her a divorce for cruelty would have been sufficient to get her a divorce for ‘constructive desertion’.

^7. A marriage is ‘consummated’ by full sexual intercourse between the parties: Baxter v Baxter (1948) AC 274.

^8. References to ‘neurotic’ wives were not uncommon at this time.

^9. See Footnote 8.

^10. Or possibly two if we count tax issues in maintenance payments of a couple who had become wealthy in South Africa: Schlesinger (1960) P 191.

^11. This is also referred to by Sir James Munby (2013, p. 281).

^12. Other examples, dating from the 1960s, are given in Eekelaar (1974). For a detailed account of the havoc wrought by the ‘old’ divorce law, see Eekelaar (1966).

^13. Though this still had to be explained, and defended, in 1990: see Eekelaar and Maclean (1990).

^14. This is also mentioned by Munby (2013, p. 283).