Family law is based on bias and prejudice

10/10/2008 10:49


Bob Geldof: Family law is based on bias and prejudice


The law as it stands promotes pain, hurt and broken families, in direct contradiction to its purpose

Thursday, 11 September 2003

Family law doesn't work. It is absurd, blunt and outdated. It is time that it was scrapped and replaced by new legislation that is based not on bias, discrimination, prejudice and unfounded assumptions but on the understanding of the way we live today.

Social law, specifically that governing human relationships, will need to evolve ever faster, particularly in an age of unprecedented and confusing change. Deeply cherished nostrums of the ages are as nothing when confronted with a different moral structure to that in which those beliefs took root.

The endless proposed adjustments to family law will not do. They do not eliminate the injustices or aid the intended beneficiaries. And unthinking tinkering becomes unjustified tampering with people's lives. Adjustments imply satisfaction with the core structure, but in the case of family law my view is that this is inappropriate, as this same law promotes pain, hurt and broken families, in direct and unintended contradiction to its purpose. It serves merely to compound the self-inflicted damage done to the individuals who come before it.

I would like to see the enactment of recent Danish-type legislation, which is increasingly finding favour in other jurisdictions, particularly the US. This assumes a 50-50 child custody split between separating couples. The principle of 50 per cent of everything must pertain. We've seen the rise of dual-career couples; now we need dual-carer couples.

The implication now of any order determining a father's allotted time with his children is that he was always of secondary importance within the house. "Reasonable contact" is an oxymoron. The fact that as a father you are forbidden from seeing your children except at state-appointed moments is by definition unreasonable. The fact that you must visit your family as opposed to live with them is unreasonable.

With the incorporation of human rights legislation into British law, there must now be recognition of a father's rights, hitherto denied. Such rights may not be granted by anyone, but are they in fact concomitant with and a corrolary to the obligations and responsibilities that accrue to a father upon his child's birth. These are inalienable and may not be removed, particularly by a court operating under the assumption that femininity is the sine qua non of nurture and masculinity its antithesis.

Economics determine social arrangements. This affects all areas of society, but most profoundly, the relationship between the sexes, and consequently the family. Since the financial and biological independence of women has come about, men have had to change also. There have been other factors contributing to societal shifts, but the effect of women being free to enter the workplace has given rise to consumerism, altered production, home ownership and house building models, and whole areas of law and sentiment.

Very little has been left unchanged by this huge and positive social movement, but most of those changes have strained the old glues that bound the family into the breadwinner/nurturer/children model. Older fathers - the dinosaur dads - are currently the ones in the most senior positions and so have a disproportionate influence. Most continue to see the world through the lens of their own generation's experience (ie a world of breadwinning men and childrearing women). But something like 51 per cent of the workforce are women now. The implication of this figure is staggering, yet it does not appear to be considered in relation to family law.

In addition, men now hold a completely different view of the parenting role than before. Again this is a huge philosophical shift with enormous implications. There are no studies which suggest that a child brought up by a man (as I was) displays any marked psychological or emotional characteristics different to one raised by a woman.

The contention that women are inherently better nurturers is wrong. Rulings appear to be based on the "sugar and spice and all things nice" school of biological determinism, rather than on anything more significant. The law, to its eternal discredit, stands in the way of great and important cultural and social progression. If the later 20th century saw the transformation of women's lives, then the 21st century involves the transformation of men's lives, and by definition the lives of their children.

The cardinal - and excellent - difference between now and the past is that it is no longer clear, until it is determined by the couples in question, who will do the breadwinning and who the nurturing, or whether it will be both simultaneously. And yet while individuals struggle with these difficult new conundrums, the laws governing the, if you will, "intimate" parts of society, the "personal" laws, remain (though some are fairly recently drafted) unaltered in their presumptions, save for the pathetic pretence that they are gender neutral.

I believe it is time for a wholesale review of what marriage means today, the validity of its contract and the consequences of its rupture. Such a review needs to be undertaken in the real world - that which contemporary couples inhabit - not the world fondly imagined by a judiciary notoriously ill-equipped to deal with how we live now.

The world of the family courts is a silent one, a secret and overarching state which has enormous powers over the lives of two people who have fallen out of love and now face intrusion, intervention, imprisonment - penalties and powers that would be unconstitutional if applied to murderers, drug dealers or rapists. Losing control of one's life is a desperate experience; having someone else exert control over it is worse. Count the economic and social cost - serious illness and alcolholism in men arising from divorce, unhappiness on a vast scale, housing and social problems, that are directly related to the inequalities and iniquities of family law.

What more is required to make men the same in the eyes of the law as they are in the eyes of their children? The altered state of women has of course produced the altered state of men. Men cannot be the same because women are not. The law will not acknowledge this, and it must. It appears bewildered, as indeed famously do the men in question. What is their new role? What is expected of them? How do they now define themselves in this more fluid brave new world?

And if the world now flexes, bends and warps like morality itself, why is the law so rigid, so inflexible and fixed that its application to individuals binds them to an overweening and restrictive state of Orwellian proportions --the common experience of those who find themselves victims of the secret world of the Family Courts.

The law must now root itself in reality, not social-work theorising, or emotive or traditional notions of men and women's roles. The notion that the law is gender neutral is a grotesque lie to which all family law professionals have tacitly agreed to be party; this is acknowledged by nearly all the lawyers I have talked to. And regardless of whether the professionals acknowledge this, the vast majority of my correspondents, friends and others regard it to be so. If this is the commonly held view, then the law will change. It is simply a question of when.

The writer's essay 'The Real Love that Dare Not Speak its Name' is published this week in 'Children and their Families; Contact, Rights & Welfare' (University of Cambridge Socio-Legal Group)