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FAMILY/MATRIMONIAL: An Introduction

Contributors:
Alexiou Fisher Philipps LLP Logo
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Divorce law is an ass. The Supreme Court has more or less said as much in Owens v Owens [2018] UKSC 41, but will it be reformed? Is any legislation possible at the moment other than the untangling of Brexit? Other key issues upon which reform is considered long overdue include surrogacy and the rights of cohabitees.

Is it more important that family law legislation be freed from the shackles of European regulation? The authors would venture to suggest: not really. EU legislation doesn’t affect our sovereign, domestic family law; what it does is provide international jurisdiction and enforcement rules. It makes private international law clearer and simpler for cross-border citizens, not all of whom are billionaires or the fabled citizens of nowhere. These are issues that confront a growing portion of our diverse population.

The effect of Brexit is something the courts have already considered: for example, in the relocation case of F v L [2017] EWHC 1377 (Fam), Brexit was a relevant factor in a possible relocation to Italy. Yet family law has barely featured in any of the government’s output on Brexit. We can say little with any degree of certainty, but we do know that during the transition period at least, to the end of 2020, European law will apply and therefore the ECJ will remain our final court. So for the time being our beloved Brussels II bis and maintenance regulations will apply, and no doubt European applicants will race to seize London as the preferred jurisdiction whilst the system remains “first past the post”.

One case upon which the government must react is the Supreme Court’s decision in R v Steinfield and Keidan. The Supreme Court unanimously found that the current bar on opposite-sex couples entering into a civil partnership breaches their rights under Articles 8 and 14 of the ECHR. The ramifications of this decision may be underestimated: if opposite sex couples are permitted to enter into civil partnerships, some may well do this rather than live as cohabitees. For those that do not, and cohabiting relationships are the fastest-growing family model, many feel that there is inadequate protection for applicants after long relationships and that the law simply lets them down. The stark reality will often come as a great surprise, on relationship breakdown, to a very significant number of cohabitees who continue to believe in the myth of “common law marriage”.

What about the financial claims of those who do have the benefit of divorce jurisdiction? On spousal maintenance at least, the pendulum appears to have swung back in favour of paying parties. The Court of Appeal has torn up the “meal ticket for life”, see Waggott v Waggott [2018] EWCA Civ 727. Joint lives orders are now as likely as something between hen’s teeth and unicorns for the majority of applicants. (Is this unfair in low asset/high income cases where there is genuine “relationship generated disadvantage”? Has the pendulum swung too far?)

The outcome of Waggott was that the Court of Appeal curtailed the wife’s lifetime spousal maintenance order, substituting a shorter-term order with a bar to extending it. Future earning capacity, says the judgment, is not a matrimonial asset (even though it may have been built up during the marriage) and earnings and earning capacity are not capable of being shared. Mrs Waggott can and must make use of what she received as part of her sharing award to meet her income needs. Compensation was not an argument that could be run where a respondent has been advantaged from a marriage – the applicant must have been disadvantaged.

The Justices of the Supreme Court have also been busy tightening up the Courts’ approach to spousal maintenance. A need, it seems, is not necessarily enough. In Mills v Mills [2018] UKSC 38, the Supreme Court was faced with a wife seeking an uplift in periodical payments in a circumstance where she had generated a need to pay rent as a result of poor investment decisions. Had the judge at trial been entitled to say that Mr Mills should not foot this bill? The resounding and unanimous answer of the Supreme Court was yes, notwithstanding that Mr Mills had the means to pay.

The trend continues toward paying parties being able to protect their wealth through marital agreements; we are now eight years on from Radmacher, and the concepts it enshrined of freedom to contract seem to be bedding in. Versteegh v Versteegh [2018] EWCA Civ 1050 concerned a Swedish marriage and a prenuptial agreement signed the day before the wedding (so some Radmacher features). The wife was held to the terms of a prenuptial agreement despite the late signing. Her arguments that she had had no legal advice on its terms and did not understand it fell upon deaf ears. In KA v MA (Prenuptial Agreement - Needs) [2018] EWHC 499 (Fam), Roberts J made a needs-based award of £2.95 million, more than £1 million above the terms of the prenuptial agreement (£1.6 million), confirming that agreements are likely to have a limiting effect on an award even if they are not upheld because of a failure to meet needs.

A reminder of the agony High Court judges can be put through came in the form of Alfie Evans, a 23 month old toddler who was at the centre of an impossible legal battle between his parents and his medical professionals. He died nearly a week after his life support was withdrawn against his parents’ wishes. The court stuck resolutely to its obligation to consider Alfie’s best interests, as with Charlie Gard, refusing to bow to pressure from the parents and advocates in the media on their behalf, despite no doubt having enormous sympathy for their plight.

The interests of the child were also paramount in the case of Re M [2017] EWCA Civ 214, in which the Court of Appeal reviewed a judgment preventing a father who had left his ultra-orthodox Jewish community to live as a transgender person from having direct contact with his five children. The Court below feared the likelihood of the mother and children being marginalised or excluded from the community. But the Court of Appeal, setting out the legal position under the Equality Act 2010 and Articles 14 and 9 of the ECHR, stressed the positive obligation upon judges to promote contact, this almost always being in a child’s best interest.

Reform having been promised for some time (since Re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73), the Law Commission is undertaking a review of surrogacy law. It has already identified significant problems with parental orders, international surrogacy – including concerns about exploitation of surrogates, and how surrogacy is regulated. It has identified (shock, horror) that the rules governing how surrogacy is undertaken should be brought up to date and has said that it will strive to make sure that the UK has surrogacy laws which work for everyone in the modern world – a laudable aim indeed.

Will family law in general work for everyone in the modern world over the coming years? The Court system is drastically underfunded. There is an acute shortage of applications into the judiciary. The law is in need of root and branch reform. Nobody knows how the international family will be affected post Brexit. Keep calm and carry on!