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FAMILY/MATRIMONIAL: An Introduction

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Family and matrimonial law continues to be a wholly engrossing and fast-moving area of law for a busy practitioner to be involved in. The challenges faced by clients, in all spheres of the work, require a unique and humane skillset, rarely matched in other fields. The outgoing President of the Family Division, Sir James Munby, a lawyer who continued to demonstrate both clear vision and humanity in all aspects of his work, had a busy end to his term of office. Within the private law sphere, he endorsed the Revised Protocol for referrals of families to Child Contact Centres by Judges and Magistrates, to take account of the differing requirements for supervised, as opposed to supported, contact centres and to reflect the changes in law and practice since the Protocol was first issued back in 2000. He also endorsed the use of new standardised children and other order precedents to provide both a useful starting and, often, finishing point in the drafting of orders in private law proceedings designed to encourage more uniformity of approach. This was, of course, in line with the guidance already issued in relation to the drafting of standard financial and enforcement orders within financial remedy proceedings, and which has done much to assist the busy practitioner cover all essential issues within the framework of each order. The President was also very engaged with his hugely important work in developing the law and practice of surrogacy and has expressed regret that he has not had time to encourage more proactive action and change in other spheres of family law (e.g. cohabitant’s rights, divorce, ancillary relief, transparency and cross-examination).

Sir Andrew McFarlane, the new President of the Family Division, may well take up these challenges but has already demonstrated, even prior to his appointment, an interest in improving matters for children in private law proceedings, by confirming his support for the concept of early intervention in post separation arrangements for children. He has suggested that key to this approach would be the issuing of general guidance by the judiciary on what a court would regard as being a reasonable amount or pattern of contact (in cases where there is no safeguarding risk to the child). He postulated that, if the judiciary lead the way, this approach could potentially improve the courts' ability to assist families to achieve a reasonable and child-focussed solution to private law disputes. He announced an intention to start a consultation process across all levels of judiciary in order to see whether a consensus could be achieved. Given that he has also previously indicated there is a need to recognise and address potentially intractable cases at a very early stage, it would appear that private law disputes between separated parents will be given a new impetus in approach by this President in the year to come. It is of note that, in April 2018, Cafcass reported a 13% increase in new private law cases referred to their service (the highest increase in four years) and so it is clear that this area of law will benefit from a new proactive approach on the part of the judiciary.

Of interest in that regard was the publication of a research review by Cafcass Cymru on the thorny subject of parental alienation. The research review was carried out by a team at the Children's Social Care Research and Development Centre at Cardiff University (‘Cascade’). Despite popular belief that this is a growing problem, the review found little empirical evidence of the prevalence of alienation, its effects, or the basis of any interventions. The team analysed that this is partly because the term itself is controversial. “Parental alienation” has no clearly agreed definition, despite being widely used in North America and parts of Europe as a label for the unwarranted rejection of one parent by the child, influenced by the actions of the other parent. The research by Cascade considered that, if taking the child's standpoint, it was essential to differentiate between situations where the child was justified in feeling estranged from a parent and situations where they might have no independent, rational reasons for taking that position. This research provides an interesting insight into the competing arguments advanced in intractable private law proceedings and is essential reading to practitioners involved in this field. .

Meanwhile, the Supreme Court has given Parliament a clear steer on important issues suitable for law reform. Of note was the decision that it was discriminatory and incompatible with the ECHR for unmarried heterosexual couples to be refused the opportunity of entering into a civil partnership, which is currently only on offer to same sex couples. In circumstances where same sex couples now have the opportunity either to marry or register their union in a civil partnership, the decision is, perhaps, unsurprising. The fact that there has been such little enthusiasm over the years by the legislature to provide any sort of legal protection or remedy for cohabiting couples on separation makes the Supreme Court’s decision all the more significant. It is to be hoped that Parliament will now make rapid changes to provide a non-discriminatory regime. The impact for those not wanting the traditional ceremony of marriage will be significant. Entering into a civil partnership provides important protective rights on any future relationship breakdown, akin to that available to married couples on separation. This will hopefully once and for all quash the mistaken but widely held notion that long-term unmarried partners have “common law” status, which affords them some legal protection on relationship breakdown

In a similar way, the Supreme Court has been considering the case of Mrs Owens and her inability to secure dissolution of her divorce on the grounds of her husband’s behaviour. There has been a groundswell of popular support for the abolition of fault-based divorce. Research published this year has confirmed that defending a divorce is expensive, complicated and unlikely to succeed. Many professionals have called for the introduction of “no fault” divorces and an end to the culture of the “divorce blame game” and the associated rise of tension that inevitably arises on receipt of such claims.

Also on hand is the continuation of the reform of the actual divorce process – a fully online divorce application process is being tested across England and Wales. In the first week of going live 130 online applications were issued. Although this is aimed at introducing a speedier, more streamlined process the reality is that it would probably be more important to separating couples to have the sting of “blame” removed from the process of formal separation.

Surrogacy continues to be an area where urgent reform is required. The Department of Health and Social Care has published guidance for parents, surrogates and health professionals and there has also been on-going consultation on the regulations in order to potentially permit a single person to apply for a parental order following a surrogacy arrangement. The area of surrogacy legislation has however not kept pace with the changes in modern practice and family arrangements, and the Law Commission has made it clear that there are real areas of concern in relation to parental orders, international surrogacy and regulations which need to be addressed urgently. It is consulting on reform of the law in this area and this is most welcome since, currently, the judiciary continues to work flexibly to try and assist in cases where the legislation is simply not fit for purpose. The one upside for family lawyers is that this makes for a fascinating, developing area of law to be involved in.

Meanwhile, in the area of financial remedy proceedings, the helpful standardised financial precedent orders were supplemented by publication of the Guidance on Financial Needs on Divorce (which is now in its second edition) and which has done much to iron out the wide differences in judicial approach that had previously been seen in the application of the discretionary considerations applied within financial remedy proceedings. The Supreme Court decision in the Mills case sends a message to wives who do not manage their finances wisely not to expect their former spouse to make up the shortfall by way of increased spousal maintenance.

In the field of pensions, the Pensions Advisory Group continues to work on its report that will hopefully provide clear and definitive guidance on the often tricky matters that arise in relation to pension sharing on divorce. This will be most welcome in the coming year for it is an area that can be fraught with complexity.

Forced marriage cases have been more widely utilised over the year and more importantly more widely publicised – the first ever case of a teenage boy being offered protection has now been reported. It is clearly vital for information about the protection available to be widely circulated within communities where this might be an issue in order to extend the protective reliefs to those in need of it.

The wide scope and continuing fast-paced developments in the field of family law (even without any current clarity as to post-Brexit rights) make for a fascinating area to be involved in as a practitioner and this looks unlikely to change in the year ahead.