The Family Law A to Z

Originally posted on ExInjuria:

Cover final 2014

This is a very exciting moment for Ruth and myself.

Today we publish our book The Family Law A to Z, a work which has been gestating for a number of years, and which will finally be available on Amazon Kindle for a very modest £7.50.

The book contains around 500 items of English/Welsh family law jargon, and explains their meaning clearly, adding discussion about how they are used, relevant case precedents, etc.

We hope that the book will become an indispensable guide for all litigants, especially those representing themselves, for their advisors and McKenzies and for law students.

We recognise that there has been a huge increase in litigants representing themselves (to 62% by June this year), that negotiating the family courts on one’s own is a nightmare, and that there are very few books and resources available.  We hope that this guide will prove a worthy addition to the…

View original 73 more words

Leave a comment

Filed under Uncategorized

Simple Simon and the Lord Chancellor’s New Clothes


As usual, you comment with a clarity and intelligence that is much needed in this vile snake-pit of a political situation. Thank you

Originally posted on ExInjuria:

Earlier in the week Glen Poole very kindly gave me space on his Inside-MAN site to give my views on the commencement of Section 11 of the Children and Families Act 2014.  For those who aren’t aware (and there seem to be many of those) this section inserts into Section 1 of the Children Act 1989 what for brevity we can call the presumption of parental involvement.  Judges are now advised that a parent’s “involvement” is likely to further their child’s welfare.

Unfortunately Glen had allowed me only 500 words (I went slightly over) so I had intended in my own blog to expand at rather greater length on what I had then written.  Fortuitously the Government has just announced further developments, so I shall include those as well in this post.

Before we start, please note that the Children Act only covers the English and Welsh jurisdiction, contrary to…

View original 2,200 more words

Leave a comment

Filed under Uncategorized

More support for separating couples and parents – it’s only window-dressing

The initiatives  announced yesterday by Simon Hughes and the MoJ have already been met with an outcry among some of the top legal bloggers, the silence from the father’s groups is however deafening. Fathers4Justice are too busy looking inward at each other to have noticed what is happening in the world outside their window – absolutely no comment whatsoever on Clause 11, or on the new reforms announced yesterday.  None.  Too busy asking for donations I guess….FnF have posted a few links on social media sites, but again no comment from them. I admire the work they do at local branch level, but as a national organisation, the need to be outspoken is greater than ever.  The only voices’ I’ve heard recently are the legal profession and legal bloggers, Michael Robinson from the Custody Minefield, the author Nick Langford and Nick Woodall. Where is everyone else??

The helpline pilot that will run for just six months from November will be run by CAFCASS, who routinely let down children, mothers and fathers, who are not trusted by parents, who are not independent and have an agenda to work from (and it’s not a child-focused agenda) – the Government seriously think parents will trust this helpline, that this helpline will help parents from start to conclusion? What will happen to parents whose situation is still on-going when the pilot ends? Where they turn to for the support and advice they so desperately need?  These are real people with complicated situations that centre around children – not lab rats with which to experiment upon.

While the expansion of in-house support for Litigants while at Court has potential, the fact it will most likely be staffed by local advice centres (read CAB) who are already facing funding issues and over-stretched resources as it is – and most volunteers are not legally qualified or well-versed in family law (there are a few, such as the volunteers on the Wikivorce advice line); or students is deeply concerning. Marilyn Stowe says in her blog :

What skills or experience do young graduates have in law, negotiation, practice and procedure?

Students are in no position to give legal advice. This is especially true in divorce cases. What kind of reassurance will they be able to offer sometimes much more mature adults who are going through one of the most traumatic periods in their life? Are they really equipped to deal with the kinds of emotional outbursts that are common in these kinds of cases?

To expect students to replace proper legal advice and support is wrong – the Government now realise that they fucked up in an unimaginable way by the way Legal Aid has been withdrawn, and the effects that this has had on those caught up in the travesty that is now the Family Justice system. They are now busily trying to rectify this almighty fuck-up by throwing a few  “initiatives” into the wind when really all they are doing is pissing in the snow (never eat yellow snow).

While the Norgrove Report was not a success, and fell short of what was expected; most of the recommendations have either been ignored or watered down into such a diluted state that the original recommendations are almost unrecognisable – and yet again, these new proposed reforms ignore the Norgrove Report completely.

One recommendation in the Report was to have Hubs, to provide an actual meeting place for parents to get the support, information and advice they would require while going through separation and post-separation; what we got instead was the completely useless and unused Sorting Out Separation App with it’s clunky and unfriendly interfacing – not to mention the often inappropriate signposting suggestions that the App would make.

Imagine having physical Hubs in every town – proper, warm, welcoming, safe meeting places where parents can go, seek help, support, and information, advice on a whole range of issues that can and do arise during and after separation. Proper face to face help from a wide range of local professionals who can support them through-out and ensure that no-one who approaches them falls through the gaps. This is achievable, with co-ordination,  a little bit of effort and not too much funding.    People need to be fully informed, be armed with the greatest peaceful ammunition that there is – facts and correct information, so that they can make intelligent, informed decisions, see through the bullshit from the other side  – pimping up the Sorting Out Separation App and the Gov.UK sites simply isn’t enough.

Hughes is very critical of those who use the Courts for dispute-solving – “ Too many people end up fighting expensive and confrontational court battles and I am determined that more people resolve their problems outside of the courts” Does he think that people just don’t bother with alternative dispute resolutions? Does he not realise that for many, Court is the only option after all else has failed? How on earth does one person come to an agreement with a former spouse or partner who simply will not engage with them? For some, mediation is not suitable due to domestic abuse or when one party has whisked the children off to the other end of the country and refuses to reveal their whereabouts. Mediation has its merits, but it is not the Golden Goose that many seem to think it is.  If Mr Hughes thinks that people don’t try hard enough to resolve their issues outside of court, then I invite him to spend time on the Wikivorce forum, and time answering calls on the helpline – perhaps then he would realise what is actually happening, what people are actually experiencing and the obstacles they face on a daily basis.

Lost in the midst of all this, of these initiatives, proposals,  of furious back-peddling; are the children and families caught up in this mess of a justice system. None of this means better outcomes for children, less waiting time for cases to be heard – to be resolved – their voices being listened to, to me it seems as though it is anything but in the best interests of the children.



Leave a comment

Filed under Cafcass, children, court outcomes, Court Procedure, disgraceful, Divorce, family law, Legal Aid, politics

180 Divorces to be Set Aside?

Rapisarda v Colladon 2014


This is a very interesting and unusual case. It involves the Queen’s Proctor making an application to dismiss 180 divorce petitions,  Decree Nisis and Absolutes.  The opening paragraph in this case from Lord Justice Mumby reads:

  1. I have been hearing applications by the Queen’s Proctor to dismiss a large number of divorce petitions and also, in many of the cases, to set aside decrees of divorce (some nisi, some absolute) obtained in consequence of what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale. At the outset of the final hearing on 9 April 2014 – the hearing was in open court – an important question arose in relation to the possible impact on the reporting of the proceedings of the Judicial Proceedings (Regulation of Reports) Act 1926 (the 1926 Act). Needing time to consider the matter I expressed no view at the time save to remind the journalists who were present in court of the existence of the 1926 Act and to draw to their attention some words of Sir Stephen Brown P in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, 62.

The judgement has been analysed in quite some detail by Suesspicious Minds “The Pages of a Most Fragrant French Novel”  – but with no explanation of WHY the Queen’s Proctor has made this application – mainly because the Judgement doesn’t specifiy the WHY.

I will come to the WHY in a bit, but first, wanted to explain a bit more about the role of the Queen’s Proctor. Allen Hortsman in Victorian Divorce notes  the  Queen’s Proctor “was a fearsome shadow looking over all proceedings“. Suesspicious Minds sums up the role of the Queen’s Proctor as

he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973″

The delay between a Decree Nisi (or Conditional Order) and a Decree Absolute gives the Queen’s Procter an ideal opportunity to intervene in proceedings – such as is the case with these 180 divorces – however, nowadays, such opportunities for intervention are somewhat limited. Gone are the days when divorces where based on the concept of matrimonial offence and where divorce was prohibited on the grounds of collusion  – ie the parties had created a matrimonial offence – the scenario where the man allows himself to be “found” by a private investigator in a hotel  room with another woman, thus meaning the wife could petition on the grounds of adultery.  The Queen’s Proctor would investigate such divorce applications if suspicions were raised that collusion was afoot.  If you want to read more about how these investigations were conducted then read Holy Deadlock written by  A.P. Herbert.

On the subject of collusion, one unnamed Justice in 1890 expressed the need for total honesty in divorce cases:

“Now what is this special provision with regard to collusion? I think its object is to compel the parties to come into the Court of Divorce with clean hands. It is to oblige them to bring all material and pertinent facts to the notice of the  Court.,m to prevent their blinding the eyes of the Court in any respect; to oblige them so to act as to enable the Court to do justice between the parties”


It is the issue of collusion that is evident in the 180 divorce cases in which the Queen’s Proctor has intervened and requested they be set aside. Here is the WHY ;

They all involve Italian couples – in 179 of the petitions submitted, the postal address of a post box on the High Street of Maidenhead was used to establish residence in the UK.  In the 180th case, the petitioner claimed to be living at an address in Epsom, Surrey  – all the spouses lived in Italy, none of them were actually resident in England, and therefore did not meet the residence criteria.  It is illegal to use a false address or to falsely claim residence for the purposes of a divorce.  The Italian couples were alledegdly promised a “quick” divorce in England – the divorces were allegedly organised divorce agency charging up to €4,000 for a quick divorce.  The courts in England/Wales have no jurisdiction to consider divorce applications where both parties do not meet the residence criteria and live outside the jurisdiction. This is indeed an attempt to pervert the course of justice on an almost industrial scale.

When the application was first made, last year, and the initial hearing was held in October 2013, there were representatives from both Thames Valley Police and the Italian Government to observe proceedings.

Divorce in Italy is complex – it was only  introduced in Italy in 1970 and Italian couples face a mandatory three-year period of legal judicial separation before being able to apply for divorce. In most cases, the entire divorce process could take up to 5 years as a result of the complexity of Italian bureaucracy and renowned slowness of the Italian judicial system.  Gabriele Giambrone, Senior Partner of Giambrone Law has commented:

“As a result of Italian archaic legislation on the dissolution of matrimonial affairs over the recent years more and more Italians have recently embarked in forum shopping around EU member states, mainly England and Rumania, by circumventing these Italian mandatory rules and using European Union legislation which recognizes divorces granted in any EU member state. The consequences for the individuals implicated in this fraudulent scheme may be far reaching: – adds Giambrone- Divorces obtained illegally or fraudulently overseas will not be recognised in Italy and, if any of the 180 couples has remarried in Italy in the meantime, they are at risk of being deemed bigamist in law, which is considered to be an additional criminal offence so they are also at risk of criminal prosecution in Italy”

I’m astonished that there has been no press coverage of this at all – after all the column inches devoted to the “sham marriage” scandals of recent years, I would have thought that “sham divorces” would have at least warranted some sort of coverage – if only to show that the Queen’s Proctor is doing his job properly, and to send out a clear message to others that England/Wales is not the place to lodge a fraudulent divorce petition with a bogus address.



Filed under court outcomes, Court Procedure, Divorce, family law, marriage

Ending the Disadvantage of Unmarried Fathers?

There has been some interesting news filtering out from Scotland over the past few days. On Tuesday this week (6th May 2014),  The Public Petitions Committee heard evidence on a petition calling for equal rights for unmarried fathers. The petition has been raised by Ron Park, an unmarried father of a young son  whom he does not see because the child’s mother does not allow it. “There is no protection issue, no order to remove me, she simply felt like she wanted rid of me,” writes Mr Park on his blog.

I have previously blogged about the issues faced by unmarried fathers who do not have Parental Rights and Responsibilities – The continuing disadvantage of unmarried fathers – without PRR; which an unmarried father can only acquire by virtue of the relationship with the mother, in that the mother has to agree to have the father’s name on the birth certificate – or via a lengthy, time-consuming and expensive legal process.  The case of Principal Reporter v K [2010] highlights this lengthy procedure. 

Parental Rights and Responsibilities afford parents not just responsibilities in the upbringing of their child, but certain rights, most notably the right to have the child live with them, or the right to maintain contact with the child. (Children Act (Scotland) 1995 (s)2). Those that gain automatic PRR are:

  • the child’s mother;
  • the child’s father where he is married to the mother at the time of the child’s conception or subsequently;
  • the child’s father where he is registered as the father of a child on or after 4 May 2006.

But not unmarried fathers where the mother refuses to consent to the father’s name being on the child’s birth certificate. 


I would like to clear one point up, during the Committee meeting, David Stewart MSP and chair of the Public Petitions Committee said ” My understanding, just looking through the brief, is that in England and Wales, there is a rationale in legislation of a presumption of shared parenting”.  Well, no there isn’t.  Section 11 of the Children and Families Act 2014 amends Section 1 of the Children Act 1989 by introducing a clause requiring the court to presume that involvement of a parent in the life of a child will further that child’s welfare. The law makes the presumption “rebuttable” which means that it does not apply if a parent cannot be involved without putting the child at risk of suffering harm, or if evidence is presented to the court which suggests the parent’s involvement would put the child at risk of suffering harm.  The term “involvement” is not defined, but a late amendment to Section 11 specifies that it can be of any kind, either direct or indirect, but does not indicate any particular division of a child’s time – so while involvement could mean shared parenting, it could also mean that sending a child a birthday card once a year is involvement – or simply paying child support is involvement, with no actual contact, either direct or indirect. At the time of writing, there is no commencement order for section 11, the word on the wire is that there “may” be a commencement order in the autumn this year – possibly.  In any case – involvement is not shared parenting – it would be like to trying to compare a scabby donkey with a mythical unicorn….

However, the very fact that MSPs at the meeting mentioned shared parenting in positive terms is very encouraging – I hope the politicians south of the border are taking note.  

So, why does there need to be a change in the current law regarding unmarried fathers gaining Parental Rights and Responsibilities?  Rebecca McQuillan, writing in the Herald on Wednesday this week says:

The law is out of kilter with the times. From next April, couples will be able to share parental leave. No longer will there be an assumption that women care and men work. And yet when it comes to allocating parental rights, the system has an in-built bias where men are regarded more sceptically than women, even with suspicion. There are some drastically unsuitable mothers out there, but the law generally views women as fit parents until proven otherwise, while unmarried men not lucky enough to be named on the birth certificate must shake off the taint of being inherently irresponsible.  The gravest failure of the current system is in depriving children of relationships with their fathers. The importance of strong family relationships in producing secure, confident, optimistic children has become a guiding light in government policy on everything from improving health and boosting employment to reducing offending. A Ben Nevis of PhD theses has been written about the value of strong male role models, especially for boys. Children benefit from having a loving dad as well as a loving mum – who knew?

While  unmarried fathers  are disadvantaged and discriminated against if their name is not on their child’s birth certificate,  the child  is denied official and formal acknowledgement of their paternal bloodline. In his written evidence to the committee, Mr Parks said:

“It’s obvious the laws in place are to protect children, and this core value should not change, but an amendment should be added to ensure that men have a right to prove parentage of a child definitively so as they can then be involved in their child’s life.”


Without Parental Rights and Responsibilities, a  father can not be considered to be a “relevant person” with regard to court hearings involving their child/ren (mothers automatically have PRR, and therefore are automatically classed as a relevant person). It is astounding that a father without PRR has to face a lengthy, costly and wholly unnecessary legal procedure to gain status as a “relevant person” – even if that father has in place a contact order or other (s)11 order, or where the father has a longstanding and close relationship with his child. The onus is on the father to prove that he has an active involvement with his child/ren.  As things stand, unmarried fathers without PRR will continue to have to apply for “relevant person” status – however, should there be a change in legislation, unmarried fathers would not need to endure this drawn-out legal procedure; and would  be legally recognised as parents ,  and therefore end the current discrimination against unmarried fathers. 

Although John Lammond MSP stated at the start of the meeting (after hearing verbal evidence from Mr Park’s mother on his behalf)  that there  are “no plans to amend law currently”,  the very fact that this thorny issue is being discussed by Scottish politicians, and using phrases such as “a very brave petition” and “important” is heartening indeed.  Committee convener David Stewart said it would “pursue this with as much activity as it possibly can”, and  the committee agreed to seek further information from the Scottish government, the Law Society of Scotland, the Family Law Association, Families Need Fathers, Scottish Women’s Aid and the UK minister. 

While we wait for political furtherance on Mr Park’s petition – all we can do in the meantime is to continue advocating to the wider world the benefits of shared parenting to children, help and support  parents who are trying to  work together for their children and putting their differences to one side and counter the voices that seek to remove fathers from their children’s lives.

Below you will find a link to the recorded video of the Committee meeting which discusses the petition:

Call for Equal Rights For Unmarried Fathers – Committee Meeting 

If you would like to read more about Ron Park’s fight for equality, you can access his blog here – Fighting For Alex 

With thanks to Ron Park – your determination, and your love for your son are a shining beacon of hope.




Filed under children, equal parenting, family law, fathers, politics, Scots Family Law

Oh for Lord’s sake….

The Children and Families Bill was debated again this week by the Grand Committee in the House of Lords; a startling number of amendments were proposed; you can read the Hansard transcribe of that debate here.

It is one amendment – and in particular one comment by the Earl of Listowel that I am picking up on. Amendment 242 would enable the introduction of a pilot scheme,

“to trial the registration of births within children’s centres”.

When he spoke about his proposed amendment, the Earl of Listowel said:” there is a danger of stigma in visiting a children’s centre; people may feel that they can go only if there is something wrong with them. This, however, is a universal service. Everyone would go there to register their child, so there would be no stigma attached to it. Practitioners talk about this as an important step forward in terms of involving fathers. Fathers will go along when the child is going to have the birth registered. I am not quite sure of the technical details as to why it is so important for fathers to be involved in the registration process—perhaps one of your Lordships can tell me in a minute—but there is a strong feeling that more fathers will be involved early in their child’s life this way.

If unmarried fathers are not present at the registration of the birth of their children, then they will not automatically acquire Parental Rights – acquisition of PR would then be dependant on either a PR agreement with the mother, or via a court order. Last year, 47.5% of children were born to unmarried parents; if the trend continues then by 2016 the majority of children will be born to unmarried parents.

It is imperative that fathers are not prevented or discouraged from being present at the birth registration – there are already far too many barriers for fathers in this country, and any new legislation should be inclusive of fathers, rather than attempting to further marginalise them.  While the proposal of a trial of parents being able to register their child’s birth at a children’s centre and at the same time make parents aware of what services are available to them should they be required seems to hold some water, it would surely help a great deal if the Lord proposing this amendment understood the implications of why unmarried fathers need to be present at the registration. And no, he didn’t get a reply to his question to the other Lords as to why it is important for fathers to be present.

1 Comment

Filed under family law, fathers, politics, unmarried fathers

US Supreme Court Bolsters Gay Marriage With Two Major Rulings

(from the New York Times)

 In a pair of major victories for the gay rights movement, the Supreme Court on Wednesday ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.

People celebrated outside the Supreme Court on Wednesday after it struck down the Defense of Marriage Act.

The rulings leave in place laws banning same-sex marriage around the nation, and the court declined to say whether there was a constitutional right to such unions. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow it.

The decisions will only intensify the fast-moving debate over same-sex marriage, and the clash in the Supreme Court reflected the one around the nation. In the hushed courtroom Wednesday morning, Justice Anthony M. Kennedy announced the majority opinion striking down the federal law in a stately tone that indicated he was delivering a civil rights landmark. After he finished, he sat stonily, looking straight ahead, while Justice Antonin Scalia unleashed a cutting dissent.

The vote in the case striking down the federal Defense of Marriage Act was 5 to 4, and Justice Kennedy was joined by the four members of the court’s liberal wing. The ruling will immediately extend many benefits to couples married in the states that allow such unions, and it will allow the Obama administration to broaden other benefits through executive actions.

The case concerning California’s ban on same-sex marriage, enacted in a ballot initiative known as Proposition 8, was decided on technical grounds, with the majority saying that it was not properly before the court. Because officials in California had declined to appeal a trial court’s decision against them, and because the proponents of the ban were not entitled to step into the state’s shoes to appeal the decision, the court said, it was powerless to issue a decision. That left in place a trial court victory for two same-sex couples who had sought to marry.

The vote in the California case was also 5 to 4, but with a different and very unusual alignment of justices. Chief Justice John G. Roberts Jr. wrote the majority opinion, and he was joined by Justice Scalia and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. The four dissenters — Justice Kennedy and Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor — said they would have decided whether Proposition 8 was constitutional. But they did not say how they would have voted.

The case on the federal law was the more important one from a legal perspective, setting the terms for challenges to state bans on same-sex marriage. Justice Kennedy’s reasoning, as Justice Scalia noted at length in dissent, could just as easily have applied to state laws as to the federal one.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

He said the law was motivated by a desire to harm gay and lesbian couples and their families, demeaning the “moral and sexual choices” of such couples and humiliating “tens of thousands of children now being raised by same-sex couples.”

The constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process. Justice Kennedy said the law’s basic flaw was in its “deprivation of the  liberty of the person protected by the Fifth Amendment.”

He added that the ruling applied only to marriages from states that allowed gay and lesbian couples to wed.

Dissenting from the bench, Justice Scalia said that that declaration took “real cheek.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” Justice Scalia said, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”


  • Exactly 10 years ago, Justice Scalia issued a similar dissent in Lawrence v. Texas, which struck down laws making gay sex a crime. He predicted that the ruling would lead to the legal recognition of same-sex marriage, and he turned out to be right.

The court’s four more conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — issued three dissents between them in the case on the federal law. They differed in some of their rationales and predictions, but all agreed that the law, which passed with bipartisan support and which President Bill Clinton signed, was constitutional.

Chief Justice Roberts said that he “would not tar the political branches with the brush of bigotry,” and that “interests in uniformity and stability amply justified Congress’s decision” in 1996, which, “at that point, had been adopted by every state in our nation, and every nation in the world.”

Justice Scalia wrote that the majority had simplified a complex question that should be decided democratically and not by judges.

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” he wrote. “The truth is more complicated.”

The decision will raise a series of major questions for the Obama administration about how to overhaul federal programs involving marriage. Justice Scalia noted some of the difficult problems created by the decision in the case,United States v. Windsor, No. 12-307. “Imagine a pair of women who marry in Albany and then move to Alabama,” he wrote. May they file a joint federal income tax return? Does the answer turn on where they were married or where they live?

The case before the justices concerned two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The federal law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000, which a spouse in an opposite-sex marriage would not have had to pay. Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the federal law.

The Obama administration continued to enforce the federal law, but it urged the justices to strike it down as unconstitutional, prompting House Republicans to step in to defend it. The justices differed on whether the case’s odd procedural posture deprived the court of jurisdiction, much as the machinations in the Proposition 8 case had.

Justice Kennedy said that the federal government retained a stake in the case, and that the lawyers for House Republicans had made “a sharp adversarial presentation of the issues.” Because the “rights and privileges of hundreds of thousands of persons” were at stake, Justice Kennedy wrote, it was urgent that the court act.

In the California case, Chief Justice Roberts said that the failure of state officials to appeal the trial court decision against them was the end of the matter. Proponents of Proposition 8 had suffered only a “generalized grievance” when the ballot initiative they had sponsored was struck down, the chief justice wrote, and they were not entitled to represent the state’s interests on appeal. The ruling in the case, Hollingsworth v. Perry, No. 12-144, erased the appeals court’s decision striking down Proposition 8.

As a formal matter, the decision sent the case back to the appeals court, the United States Court of Appeals for the Ninth Circuit, in San Francisco, “with instructions to dismiss the appeal for lack of jurisdiction.” That means the trial court’s decision stands.

Lawyers for the two sides had different interpretations of the legal consequences of the Supreme Court’s ruling. Supporters of Proposition 8 said it remained the law in California because the trial court’s decision applied only to the two couples who had challenged the law. The lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, said the trial court decision was binding in all of California.

As a practical matter, Gov. Jerry Brown, a Democrat, instructed officials to start issuing marriage licenses to same-sex couples as soon as the Ninth Circuit acts.

If California becomes the 13th state to allow same-sex marriage, about 30 percent of Americans will live in jurisdictions where it is legal. Until last year, when four states voted in favor of same-sex marriage at the ballot box, it had failed — or bans on it had succeeded — every time it had appeared on a statewide initiative.

Guide to the Supreme Court Decision on the Defense of Marriage Act


Filed under court outcomes, family law, marriage, politics, same sex marriage