1.1 WHAT IS FAMILY LAW?

Family law is of fairly recent invention, especially as an academic subject, credit for this
achievement usually going to Professor Peter Bromley, who published the first edition of his now
well known textbook in 1957. In the same decade, a practical text on Divorce, as the general
subject of family law was then called, was published by Dmitri Tolstoy. Tolstoy was an ex-patriate
Russian aristocrat practising at the common law end of the English Bar, and the father of the then
equally unknown historian Nikolai Tolstoy, later famously sued by Lord Aldington for defamation
in relation to the Wests alleged post-Second World War betrayal of the Cossacks. At this time,
only 50 years ago, Sir John Mortimer had not elevated to literary fame, nor into the realm of
classic television entertainment, the career of his father, the blind divorce lawyer Clifford
Mortimer, and neither family law in general nor divorce (its best known feature) in particular
featured in serious academic programmes. Indeed, Lord Shawcross (then Sir Hartley Shawcross,
the post-war Labour Attorney General) commented that this was a very simple branch of the law
which required no study or thought at all. Its precise scope has, therefore, over the years been by
no means as settled as the province of other mainstream core or optional subjects of the qualifying
law degree, either in terms of the perceived extent of the subject area for academic or vocational
purposes, or within the undergraduate curriculum, where it is now usually a popular second or
third year optional subject, although specific coverage varies enormously from law school to law
school. It is thus difficult in modern times to define family law. First, one must define the
family, a task hard enough in itself, since contemporary human rights law has accepted that a mere
two persons who have never met but are linked by bloodsuch as the unmarried father and his
child found to be a de facto family in the case of Keegan v Ireland (1994) 18 EHRR 342may
comprise a family sufficient to enable a breach of the right to family life. Moreover, family law
now operates in an international dimension, bringing into the ever widening concept of family law
norms and traditions. Keegan makes clear that the notion of the familyis not confined solely to
marriage based relationships and may encompass other de facto family where the parties are
living together outside of marriage.
Family law is therefore a law of relationships, between adults inter se, between adults and children,
and between both adults and children and the State, as continually influenced by social and
demographic changes. It is a body of rules of different types (some rules being so loose that they

are basically discretions, a distinguishing feature of family law) and it defines and alters status,
provides specific machinery for regulating property, protects both individuals and groups and
attempts in so doing to support the family structure of our society. The current edition of
Bromleys Family Law suggests that the family is almost impossible to define. Cretney, on the other
hand, thinks that the key factor running through family law is parentage, with a consequent focus
on the child. Eekelaar and Maclean approach family law as a socio-legal study, and Barton and
Hibbs examine the various family members (primary, secondary and tertiary) in order to define
whether family law is interested in them or not. Diduck and Kaganas look at the American
feminist perspective, which seems to centre on the mother and child, although it is apparently
accepted that a man could perform the mother parenting role. After a canter along the
philosophy corridor, they conclude sensibly that, as there is no statutory or common law definition
of the family, then a family is what the ordinary man on the street thinks it is, and cite a series of
cases in support, beginning with the housing case of Sefton Holdings and Cairms [1988] 2 FLR
109, per Lloyd LJ, and ending with the more recent Fitzpatrick v Sterling Housing Association Ltd
[1999] 3 WLR 115 (HL); [1998] 1 FLR 6 (CA). The former was a tenancy succession case in
which it was necessary to decide whether two unrelated unmarried women (not apparently in any
form of lesbian relationship) were a family so that the survivor could succeed to the deceaseds
statutory tenancy. The latter was an overt same sex couple case in which in the Court of Appeal
Ward LJ, dissenting, wanted to find that the cohabitants were either the equivalent of persons
living together as husband and wife or alternatively were simply a family, a view which was upheld
in the House of Lords and has subsequently been developed in the case of Mendoza v Gheidon
[2002] EWCA Civil 1533 to accept same sex couples as the equivalent of husband and wife.
1.2 HOW FAMILY LAW DIFFERS FROM OTHER CIVIL LITIGATION
It is now two decades since it was realised by practitioners that family law in general, and
paradoxically divorce law in particular, could not be regarded as just another aspect of civil
litigation, although for the first 130 years since the initial Matrimonial Causes Act was passed in
1857 there were few lawyers who realised this and fewer still who adopted an approach to family
law work which reflected such a view. The Solicitors of UK who formed the SFLA1 are well known
group of specialist practitioners founded in 1982, must be credited with taking the significant step
1

Solicitors family law association

of introducing a constructive and civilized approach to the resolution of legal matters following
matrimonial breakdown. Innovative as this was at the time, it is now universally accepted that the
legal resolution of family problems is not conveniently achieved by a predominantly litigious
approach, even where a firm has no specialist family department. The SFLA was initially
established to take family matters, as far as possible, out of the atmosphere of contentious
litigation, with the aim of achieving agreed solutions which, while not substantially different from
what the court would order if the matter were acrimoniously contested, might with cooperation be
achieved at less cost, emotionally as well as financially. As time has passed, this philosophy has
become much more important since, for example, the passing of the law of Child Act 2009, which
established the relatively innovative concept of parental responsibility and encouraged divorcing
parents to continue good parenting regardless of the end of their marriage. However, whether or
not a solicitor joins the 3,000 strong membership, the Law Society recommends that all solicitors
practising family law observe the SFLAs principles and Code of Practice, adherence to which is
made clear not to be a sign of weakness and not in any way to place the client at a disadvantage. Of
course, there are still solicitors who do not observe the Code, and who still insist on conducting
matters in an aggressive and acrimonious manner, but the SFLA philosophy is now so well
established that the majority do stick firmly to its principles even when encountering an aggressive
opponent of the old fashioned disposition, and do not give in to the obvious temptation to retaliate
in kind.