Law, Law Reform, and the Family

Law, Law Reform, and the Family

Law, Law Reform, and the Family

Law, Law Reform, and the Family

Synopsis

This collection of essays examine the process and problems of law reform with special reference to the development of family law. The author, Stephen Cretney, who is one of the UK's most distinguished family lawyers, demonstrates the different pressures and influences that affect the development of the law, including the views of judges, the advice of civil servants and the requirements of Parliamentary drafting to an extent which has not previously been appreciated. Topics covered include the involvement of the Church in the 1969 divorce reforms; the struggle for power within the family from 1925 to 1975; approaches to the reform of intestacy; the Children Act of 1948; and the early days of marriage conciliation, amongst others.

Excerpt

The history of law reform is the history of strong differences of opinion between those who wanted a change and those who did not, and on the whole progress has been made by these means.

(Sir John Simon, then Home Secretary, to the Chief Magistrate,
Sir Rollo Graham Campbell, 13 July 1936.)

The importance of studying the law in its social and historical context has been part of the conventional wisdom for many years; but surprisingly little detailed work by lawyers on the background to legislation has been published. For the past five years the matchless research environment provided by All Souls College has enabled me to work on the development of English family law, and to draw on the rich deposits preserved in the Public Record Office as well as other sources, official and unofficial. I intend to publish a comprehensive study of Law, Lawmakers and the Family in 20th Century Britain in due course which the present collection of research papers and essays to some extent anticipates.

There is always a danger that such collections will lack any common or unifying theme; but I hope this is not true of the contents of this volume. Chapter 1, 'The Law Commission: True Dawns and False Dawns', exposes the difficulties of reconciling traditional principles of ministerial responsibility for legislation with the Labour Party's 1964 commitment to create--as part of the skilled professionalism intended to supplant decades of dilettante amateurism--an independent body to have full charge of the machinery for law reform. This Chapter also demonstrates the difficulty which a non-governmental body such as the Law Commission has in securing the legitimacy necessary in any democratic law-making process.

Chapter 2 ('Putting Asunder and Coming Together: Church, State and the 1969 Divorce Reforms') has (unlike the others in this Collection) not previously been published. It describes the circumstances in which Archbishop Ramsey set up a small group to consider whether a new kind of divorce law, 'free from the most unsatisfactory features of the matrimonial offence based law but not weakening the status of marriage in the community', might be devised; and describes the part subsequently played by the Law Commission in securing the apparent consensus on which the 1969 Divorce Reform Act was founded. the 'concordat' between the Archbishop's Group and the Law Commission is a matter of published record; but it is now apparent that the two sides had very different notions of what it was they had agreed. the Archbishop's Group's papers (preserved at Lambeth Palace) and the surviving Law Commission internal records (in the Public Record Office) throw some light on how two inconsistent views of the divorce . . .

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