Family Life is of paramount importance
By Christina Hislop Rowlandson MSc DIC
Accredited Civil-Commercial Mediator
7 August 2020
Royal Assent if given to
a ‘substitute Marriage Bill’, as I personally refer to it, would have
drastically changed the state of legal unions for the purposes of
having children and other matters. The Bill was debated and voted down
in two days amid little public fanfare. Six of seven official Members
of the Opposition in the Legislature resolutely voted ‘no’ along with a
Government Backbencher Member from West Bay and two prominent Cabinet
Ministers with responsibilities for social affairs - the Minister for
Health and the Minister for Education. George Town seems to have been
the weakest link with five out of seven MLAs voting for the Bill.
Credit is due to all those who stood up to be counted on the Cayman
Islands value system and to members of the community who participated
in raising awareness.
The Constitution of the Cayman
Islands and its Marriage Law provide a very clear definition of
marriage. In Ladore v Bennett [1939] it was said that “Parliament
cannot evade a constitutional restriction by a colourable device” i.e.
by calling it something else. Former President of the Court of the
Appeal of the Bahamas and retired Privy Councillor Dame Joan Sawyer DBE
shared her view of the Bill: “by its very words it clearly intended to
confer on persons entering into such ‘partnerships’ the ‘security and
benefits’ of a marriage while not actually calling it a marriage. In
other words, it intends to accord to persons of the same sex, all the
rights and privileges accorded to married persons under the Marriage
Laws of the Cayman Islands”.
There is a need to consider the
purpose of marriage legislation. Marriage law supports stability of
family life, the integrity of marriage, imitation of nature, and the
protection of children. The Marriage Foundation based in the UK
champions marriage for the good of society especially children.
Research by the Foundation revealed in 2017 that 72% of parents were
married in the previous Prime Minister’s seat of Maidenhead and that 25
out of 26 of her Cabinet MPs’ constituencies backed marriage as the
best family structure to raise children. The Foundation’s research also
reveals that a stable relationship of the parents is the single most
important factor in a child’s healthy development. Half of all UK teens
are not living with both parents and family breakdown is the #1
predictor of teenage mental health problems. The main causes of
breakdown are relative poverty, lack of parental resources, father
absence and instability. The Foundation’s Chairman witnessed the
catastrophe of family breakdown over forty-four years in the family
courts and says, “We owe it to the next generation of children to get
serious about marriage as a crucial public health issue”.
Perhaps the Romans had this in mind
when they developed Family Law. Known for its profound legacy in
English law including the Cayman Islands system of laws and Continental
legal systems, Roman law has been referred to as the “genius for good
order and organised common sense”. For Romans marriage was a social
fact with certain legal consequences. Matrimony, a word derived from
mother, was the joining together of a man and a woman, implying a
united lifestyle, a partnership for the whole life involving divine as
well as human law. Romans had a highly developed sense of what
constituted a desirable and lawful union. There was a plethora of
rules, bars and impediments in an attempt to prevent undesirable
marriages. For example, marriage between a guardian and their ward or
the guardian’s child and their ward was prohibited as was marriage
between an adopted child and the adoptive parent and with a sister or
brother-in-law. Prohibitions were a highly developed area of family
law.
Considering our own foundational
moral heritage and the fact that this Bill goes to the heart of society
with its impact on family life, school and church life, and public
health and medicine, invariably raises the following questions. Would
passing the Bill be in the best interests of the people? Would it
conflict with natural and domestic laws and erase barriers that prevent
undesirable unions? Are the MLAs best qualified to determine what is
desirable and what is not? Were scientific arguments raised? According
to the European Convention (Convention) of Human Rights national
authorities are categorically best placed to assess and respond to the
needs of society. These authorities base decisions on science, ethics,
research and domestic law and policy. The Cayman Islands Legislature
exercised that role and did so against the backdrop of a Convention
that supports the special rights afforded to a couple in a traditional
marriage.
The ‘no’ vote therefore respected
family law, the laws of the Cayman Islands, the rule of law and the
separation of powers. The outcome was also a massive win for women by
supporting their privacy, dignity, proper place, personal identity and
honour to marry and found a family at the same time as accessing
education and economic life. The ‘no’ vote also pleased the Crown’s
subjects because it honoured biblical precepts and the islands’
Christian principles. Voting ‘yes’ for this Bill would have been a
brutal assault on marriage, a solemn union with important consequences,
and our nation’s intricate system of values and responsibilities.
Unfortunately, the Governor is now
acting on his own desire to pass the Bill. The effect of this on the
fundamentals of our democracy has not gone unnoticed and momentum is
naturally building to reclaim this matter and defend the Cayman Islands
way of life. It is being led by lawmakers and the Christian Association
for Civic and Political Education and a great many other stewards here
and in the region. Only last year environmental stewards said ‘no’ to
further destruction and led a successful legal battle against a Bill
catering to special interests. Together we now need to stand up for
social as well as environmental good governance.
It should be noted that for the
purposes of the conflict of laws a ‘country’ is any territorial unit
having its own separate system of laws whether or not it constitutes an
independent state politically. The UK cannot therefore be the relevant
country for the purposes of those branches of private law. There is no
such thing as the law of the UK.
May God save the Queen, the Prime
Minister Boris Johnson and us. Ultimately If we ‘honour our fathers and
mothers’ all will be well.