01 February 2013
Family Law Solicitor Cara Nuttall on the tensions between different models of Family Law
Two important legal decisions are featured in the press today which highlight the tensions between existing Family Law in England, based on a traditional, British model of a heterosexual nuclear family, and modern society, in which there is a multitude of family compositions.
The first case considered the rights of 2 sperm donors (whose sperm was used to conceive a child for a Lesbian Couple) to be involved in the life of the Child, whom it had always intended would be raised in a nuclear family by the 2 women. In reaching a decision that as a matter of principle, it may be appropriate for a sperm donor to be involved (to varying degrees) in the child's life, the court had to consider the competing interests of the child, the biological father and the psychological parents. The need for the child to have an understanding of his or her origin and roots also had to be balanced against the potentially detrimental effect of the disruption caused to the primary family unit, by the unwelcomed involvement of the donor.
In the second case, the court addressed the conflict between existing Matrimonial Law and religious laws governing Marriage Breakdown. It is of course well-known, that there are many ways in which the current law in England does not sit well with religious practices and custom under religions such as Orthodox Judaism and Islam, and that this can create difficulties for couples when separating. Traditionally, it has been made very clear that the jurisdiction of the courts cannot be ousted in favour of religious tribunals and that English Law will take precedence when there is a conflict. In this case however, the Judge allowed a young couple in their 20s to use the Beth Din in New York to resolve the issues arising from their separation, in order to allow them to Divorce in terms which were aligned to the practices by which they had lived and married. The case therefore throws open the question as to what extent people who have lived their lives according to different rules and practices should be allowed to determine such matters in line with those rules, rather than having a potentially incompatible solution imposed upon them.
Both cases highlight the complexities which are raised when a specific case raises consideration of issues which are outside of the traditional model, and the way in which the Law is evolving in order to keep up with the realities of modern British society. As a Family Solicitor, it suggests interesting times are ahead.
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