British Conservatism and the Legal Regulation of Intimate Relationships

Family Law

British Conservatism and the Legal Regulation of Intimate Relationships

By Andrew Gilbert
Hart Publishing August 2018

Specifications

ISBN-13
9781509915880
Publisher
Hart Publishing
Publication
August 2018
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

What does conservatism, as a body of political thought, say about the legal regulation of intimate relationships, and to what extent has this thought influenced the Conservative Party’s approach to family law? With this question as its focus, this book explores the relationship between family law, conservatism and the Conservative Party over the last generation.

Taking a politico- and socio-legal perspective, the discussion draws on an expansive reading of Hansard as well as recently released archival material. The study first sets out the political tradition of conservatism relying largely on the work of Edmund Burke, before going on to analyse the discourse around the development of four crucial statutes in the field, namely: the Matrimonial and Family Proceedings Act 1984; the Family Law Act 1996; the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013.

This work offers the first extended synthesis of family law, conservative political thought and Conservative Party politics, and as such provides significant new insight into how family law is made.

Table of Contents

1. Introduction
Justifications
Boundaries and Questions
Theoretical Framework
Chapter Outline
A Final Note

2. Conservatism and Family Law
Introduction
What is Conservatism?
The Knowledge Principle
The Change Principle
Conservatism and the Family
To What Extent Should the Law Support Marriage and Facilitate Divorce?
The Clean Break on Divorce
Should the State Legally Recognise Same-Sex Relationships?
The Objection to Same-Sex Marriage from Natural Law Theory
The Conservative/Libertarian View
The Conservative Assimilationist Argument
Going Further: A Classical Conservative Argument
Concluding Remarks

3. Marriage and Divorce in Transition: The Matrimonial and Family Proceedings Act 1984
Introduction
The Political Context: The New Right
Thatcherism
The New Right, Thatcherism and the Conservative Tradition
The Conservative Party and Family Policy Prior to the MFPA 1984
The Family Policy Groups
Lessons from a Letter to a Child
The Matrimonial and Family Proceedings Act 1984
Genesis of the Act
The Divorce Time Bar: Previous Law and Criticisms
The Divorce Time Bar: Law Commission Proposals
The Financial Consequences of Divorce: Previous Law and Criticisms
The Financial Consequences of Divorce: Law Commission Proposals
Analysis of the Bill in Parliament
The Conservative Preoccupation with the Expressive, or Symbolic, Function of Law
Conservatives Mostly Disregarded the Impact of the Clean Break
Conservative Distrust of Experts and Evidence
Conclusion

4. Major Change?: Family Law and Policy in the Decade Following the Matrimonial and Family Proceedings Act 1984
Introduction
The Major Premiership: Thatcherism After Thatcher?
Family Law and Policy Prior to the Family Law Act 1996
Surrogacy Arrangements Act 1985
Children Act 1989
Human Fertilisation and Embryology Act 1990
The Gillick Case
Major Change?: Some Concluding Thoughts

5. Divorcing Rhetoric from Reality: The Family Law Act 1996
Introduction
The Genesis of the Family Law Act 1996
The Law Commission Reports
The Government's Responses
Main Provisions of the Bill
Analysis of the Bill in Parliament
Pessimistic versus Realistic Assessments of the Human Condition
Legislators' Views of Experts: A Tension between Trust and Distrust
Message-Sending and the Agency of Law Generally (Again)
Reece and a Post-Liberal Interpretation of the FLA 1996
Concluding Thoughts

6. 'Commitment Rewarded': The Civil Partnership Act 2004
Introduction
The Conservative Party and Homosexual Law Reform
The Civil Partnership Act 2004: Marriage-Like, Not Marriage-Lite
The Genesis of the Act
The Bill in Parliament
Official Conservative Position: Conservative, Liberal and Libertarian Strands
The Conservative Dissent
Sex in the Shadows
Class
Concluding Remarks

7. An Unnatural Union?: British Conservatism and the Marriage (Same Sex Couples) Act 2013
Introduction
From Civil Partnership to Same-Sex Marriage: A Short History
The Background to the Bill
The Main Features of the Marriage (Same Sex Couples) Bill
Analysis of the Debates
An Overview
The Diminishing of Difference and the Assimilation of the Gay 'Other'
Sex in the Shadows (Again)
The Centrality of Religion in the Debates
Conservatives and Conservatism in the Commons Second Reading
Conservative MPs in Favour of the Bill
Conservative MPs Against the Bill
Concluding Remarks
8. Conclusion
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