THE CODIFICATION OF FAMILY LAW*

AuthorS. M. Cretney
DOIhttp://doi.org/10.1111/j.1468-2230.1981.tb01621.x
Publication Date01 Jan 1981
THE
MOBIEWN
LAW
REVIEW
-
Volume
44
January
1981
No.
1
THE
CODIFICATION OF FAMILY LAW
*
LORD
CHORLEY in an article in the
Modern Law Review
greeting
the formation of the Law Commission gave eloquent expression to
the high expectations held in 1965 for its influence on
the
develop-
ment of our law
:
The Law Commissions Act 1965, may well prove a landmark
in the history of English law. It provides machinery which,
if
effectively used, should enable rules of law, as well those of
common law, equity and of the Statute Book, devised to meet
the requirements of earlier ages in which needs were different,
to be changed or moulded
so
as to provide a flexible and suitable
system for our own day, and, indeed, for periods to come.”
that the function of the Commission was
very wide indeed,” no less than
to take and keep under review
the whole
of
English law, with a view to its systematic development
and reform.” The codification of
the
law was included amongst the
Commission’s specific objectives:’; and the Commission soon
embarked on a
comprehensive examination
of Family Law
with
a view to its systematic reform and eventual codification.”5 My task
today
is
not to examine the substance
of
the extensive changes of
the past 15 years in Family Law, but rather to ask the more limited
question of how near those reforms have brought us to that
even-
tual codification” of family law to which the Law Commission
is
committed; and to discuss some of the difficulties which to my mind
stand in the way of the attainment
of
that objective.
He also pointed out
GRADUAL
CODIFICATION
The Commission’s fundamental assumption has been that reform of
the substance of the law must necessarily precede codification; the
*
The Ninth
Chorley Lecture
delivered at the London School
of
Economics on
June
11,
1980.
It states the Lecturer’s personal views, and must not
be
taken to
state the policy of the Law Commission.
1
Written jointly with Gerald Dworkin.
2
The
Law Commissions Act
1965
(1965) 28
M.L.R.
675.
4
Law Commissions Act
1965,
s.
3
(1).
6
Second Programme
of
Law Reform (Law Com.
No.
14) (1967),
Item
XIX.
At
p.
675.
VOL.
44
(1)
1
I
2
THE
MODERN LAW REVIEW
[Vol.
44
reformed statutory provisions are then brought together by the legis-
lative process of consolidation. Our codification process is gradual;
but this does not mean that it lacks the systematic approach which is
one of the main characteristics of the codification process.6 Thus the
systematic review starts with the legal implications of engagement.
This topic was dealt with in the Report on Breach of Promise of
Marriage,? the recommendations in which were implemented by the
Law Reform (Miscellaneous Provisions) Act 1970. The review then
turns to the creation of the status of marriage. Proposals for reform
of the rules governing capacity to marry were made in the Report
on Nullity of Marriage,8 and implemented by the Nullity of Marriage
Act 1971. The Marriage Ceremony itself was dealt with in the Com-
mission’s Report
on
Solemnisation
of
Marriage ‘-not, it is true, yet
implemented.1° The consequences of marriage were extensively con-
sidered in the Commission’s Reports on Financial Provision
in
Matrimonial Proceedings,l’ on Matrimonial Proceedings in Magis-
trates Courts,l* and on Family Provision on Death13 (the recom-
mendations in which duly led to legislation) and by the Commission’s
three reports on Property matters, culminating in the Third Report
on
the Matrimonial Home and Household G0ods.l“ The divorce law is
it
is
true in a special category. Here the Commission’s initial role was
limited to considering the field
of
choice for reform
Is;
the present
law represents a compromise
l6
between the Law Commission and
the Archbishop’s group whose report,
Putting
Asunder,
had advocated
irretrievable breakdown found by judicial inquest as the basis of the
law.
In addition to all this, the Commission has dealt with a consider-
able volume of work on the highly technical international aspects of
family law-such as the Report
l7
leading to the Recognition of
Divorces and Legal Separation Act 1970 and the Report on Polyga-
mous Marriages.18 The Commission has been instrumental in clearing
the statute book of outmoded procedures and causes of action (such
0
See Dennis Tallon, Codification and Consolidation
of
the Law at the present
time
(1979) 14
Israel L.R.
1.
7 Law Com. No.
26, 1969.
8 Law Com. No.
33, 1970.
9
Law Corn. No.
52, 1973.
11
Law Com.
No.
25, 1969.
12
Law Com.
77, 1976,
implemented by the Domestic Proceedings and Magistrates’
Courts Act
1978.
13 Law Com.
No.
61, 1974,
implemented by the Inheritance (Provision for Family
and Dependants) Act
1975.
14
Law Corn. No.
86, 1978.
The
earlier reports were the “First Report
:
A
New
Approach” Law Corn.
No.
52,
and the Report on Family Provision on Death,
Law Corn. No.
61, 1974.
The
Matrimonial Homes (Co-Ownership) Bill received
a
second reading in the
House
of
Lords on February
12, 1980,
[see H.L.Deb., Vol.
405,
cols.
112-1541:
but the prospects for its enactment are at the moment still unclear.
15
Reform
of
the
Grounds
of
Divorce. The Field
of
Choice
(1966)
Law Com.
No.
6,
Cmnd.
3123.
16
The
terms
of
the compromise are recorded in Appendix
3
to
the Law Com-
mission’s 3rd Annual Report
1967-68 (1968)
Law Com. No.
15.
17
Law Com. No.
34, 1970.
18
Law Com. No.
42, 1971,
implemented by the Matrimonial Proceedings
(Polygamous Marriages) Act
1972.
1”
See
irifra
p.
9.

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