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A judge said in court, “we all know most divorce settlements don’t happen because of lawyers”. Another who used to practice in this area told my young intern “move to another area of practice: family law feeds on people’s misery.”
“It’s not law, just common sense,” is the oft held belief, which ignores the fact that the intense emotion of this area of law does not allow for common sense: there is no bench mark of the reasonable prudent man.
This misunderstands family law, which is a fine subject of marvelous complexity. A subject that regulates, reflects and has the potential to reform the very base of society.
A subject that is not given the attention it deserves, even though a large volume of litigation arises out of family disputes. Thus while a divorce litigation may be diminished as a “gharelu mamla”, the “gharelu” aspect of the litigation between the Ambani brothers is missed because the economics of it elevates it to ‘serious’ litigation, with legal and corporate jargon disguising its pathos. Similarly a maintenance order in divorce proceeding pales in comparison to a family dispute over real estate the value of which glosses the matter to a ‘fat brief.’
The misconception is that family law is limited to dissolution of marriage even though the ceremony of marriage is only a superficial binding of the relationship. The bones of family law are property, succession, guardianship, inheritance and division of assets. These are the issues that arise when dismantling the socio-economic structure that is formed when a couple set up a home, mostly by marriage and sometimes when they live together “in the nature of marriage”.
Family is a powerful concept as the nucleus in the networks of relationships that create social influence. This is best demonstrated by the guest list of weddings. So and so was there: it is significant that so and so was not: what do you think: is all well between them? and so on. Disruption of this nucleus is bound to be a major change: tighter the family structure, greater is the trauma of breaking away.
Traditional familial equations are being redefined in a new world where women are emerging to form their own worldly connections. Thus is emerging a morality hitherto unexplored. For example, how appropriate is it to be close to a person of the opposite sex outside marriage and at which point does that closeness become inappropriate. While some families have negotiated new equations, others who have not, sometimes reach the Court.
The family court is a living laboratory to study relationships that are defined by stereotypical perceptions of gender. It is here that you will understand the cause and effect of an oppressive patriarchy as also the problems of dismantling it.
Family law is an always contemporary constantly dynamic subject that reflects society as it is even while the courts persuade and nudge towards the constitutional ideal.
In India, while we struggle for gender equality among heterosexual couples, in other parts of the world, the law of marriages is evolving to include same sex couples as well. This is noteworthy to suggest that the dreaded “westernized modernity” does not treat marriage as irrelevant but in fact has broken the tradition of it being only between a man and a woman.
Most of the legal fraternity is embarrassed by the “Emoshun” of this subject and so dismiss it as “soft” and thus not really law. However, what is ignored is that we may be better off as a society if the same empathy, kindness and humility that is required of lawyers and judges in divorcing families (particularly while dealing with children) could be absorbed into other areas of litigation.
Returning to my account of the judge’s remark about lawyers and settlements, to blame lawyers for disputes not settling is an unhappy over simplistic view of the dynamics of settlements. Litigation is more than what happens in court and in fact there is more that happens outside the court. One must view the conflict as a whole.
The fact that a case cannot be settled is often because of deeply entrenched positions of the litigants that can not be diluted by order. A lawyer after all can only counsel but at the end is ethically bound to act on instruction.A client takes an informed decision to proceed with a matter or to settle. Legal advice helps a perspective but often clients need to battle it out to get closer to a semblance of right and entitlement, while you have to inform them that they probably will never get a full right in the manner they had thought or imagined they could or should get.
This subject requires refined sensibilities for empathetic treatments of the suffering litigants; it is a lesson in humility since nothing a family lawyer can do or bring the legal system to do achieves the ideal justice: in a host of hostile circumstances, we try to bring our client as close as possible to their idea of justice: and it is never complete:
My attempt with these posts will be to highlight systemic problems, to crystallize legal issues and frame questions that hopefully will contribute to the continuing legal discourse. It is also a humble attempt to redeem us family lawyers from the low rung in the pecking order and to assert its respectability with pride; to discuss the nuances of family law as being vital to society and core to social progress.
