The Development of Family Law in the Twentieth
Century: Informed Reform or Campaigns and
Stephen Cretney,Law, Law Reform and the Family, Oxford: Clarendon Press,
1998, xxviii + 285pp, hb £45.00.
Through key texts such as Principles of Family Law and Elements of Family Law,
Stephen Cretney has become one of the most highly regarded and authoritative
family lawyers in the United Kingdom. In this collection of ten diverse essays
Cretney turns his attention to the historical development of Family Law, with a
view to formulating recommendations about the future direction of the subject.
Cretney marries historical analysis with recommendations particularly well in
the final chapter, ‘Dividing Family Property on Death: Approaches to Reform of
Intestacy.’ He explains that reforms in this area have been bedevilled by lack of
agreement on the principles of inheritance law. These dilemmas are mirrored in
intestacy itself, which oscillates between being a safety net and a comprehensive
system of inheritance. Cretney charts the two main developments of the twentieth
century: first, a trend towards favouring the surviving spouse over the children;
secondly, the disinheritance of remoter blood relations. But partly because of these
developments and partly because of increasingly complex family relations, the
rules of intestacy can occasionally generate considerable hardship. In 1952, the
Intestates’ Estates Act introduced what Cretney sees as the stopgap solution of
extending the power to make reasonable provision for dependants to cases of
intestacy. Although the Inheritance (Provision for Family and Dependants) Act
1975 widened the courts’ powers further, Cretney argues that three contemporary
complications have not been fully addressed. First of all, the rise in divorce and
remarriage leads to cases where the deceased’s wife, who will usually inherit most
of his estate, will not necessarily feel any obligation to his children by previous
marriages. Secondly, the rise in cohabitation leads to the situation where a child
brought up by his mother and her cohabitant will have no right to inherit from his
only father figure. Thirdly, new forms of wealth such as pensions do not fit neatly
into the statutory scheme.
In Cretney’s opinion, the solutions to these complications rest in a greater
measure of judicial flexibility and discretion. He proposes, first of all, that in cases
ßThe Modern Law Review Limited 2000 (MLR 63:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Birkbeck College, London.
I am grateful to John Gillott, Gordon Reece and the MLR’s anonymous referee for helpful comments onan
earlier draft of this article.