FAMILY/MATRIMONIAL: An Introduction

Divorce law is finally changing. Following the high-profile Supreme Court case of Owens v Owens last year, the government introduced the Divorce, Dissolution and Separation Bill to parliament. The primary aim of the legislation was to remove the requirement for one spouse to be named at fault for the breakdown of the marriage.

The Bill has received widespread support both among professionals and society at large, with groups such as Relate, Resolution and the Law Society welcoming the removal of blame and a shorter timeframe for the divorce process. The Nuffield Foundation also published research in support of the proposals, showing that no fault divorce is consistent with international trends. The Bill had its second reading in June 2019, at which the Lord Chancellor commented that the proposed legislation would remove "unnecessary conflict flashpoints" from the legal process and minimise the "destructive effects" of divorce. He noted that "children's best interests are served by minimising conflict" between their divorcing parents.

The Prime Minister's proroguing of Parliament last month temporarily brought the progress of the Bill to a screeching halt. Nonetheless, it seems inevitable that, with Parliament back up and running and the widespread consensus regarding the need to update our divorce laws, the Bill will soon be enshrined in English legislation. What does the momentum behind the Bill say about our society's approach to marriage in the 21st Century? The view of the Christian Institute charity is that we are experiencing a "deeply worrying shift in young people's attitudes" away from the lifelong commitment of marriage. Only time will tell whether a shift away from blame corresponds with a rise in divorce rates.

Divorce is not the only family law matter taking up Parliamentary time. The Civil Partnerships, Marriages and Deaths (Registration etc) Bill, if made into law, will extend civil partnerships to opposite-sex couples by the end of the year. This could produce a welcome alternative for cohabiting couples, who have limited legal rights under our current laws.

For the time being though, our government is waylaid in Brexit purgatory. As this goes to press, we know little more than we did three years ago about what Brexit will mean for family law in England and Wales. In June, the Children's Commissioner expressed concerns about the protection of children in light of Brexit uncertainty. The Secretary of State responded by confirming that, in the event of a no deal Brexit, our current mechanisms for cooperation with EU Member States on issues of legal justice would cease to be available to us. Little comfort then, as we hurtle towards October 31.

During the transition period at least, to the end of 2020, European law will apply and so the ECJ will remain our ultimate court. Thereafter, in the absence of a deal, Parliament would repeal relevant EU rules such as Brussels II bis, and we will have to make use of alternative routes, such as Hague Conventions and other bilateral channels. Whilst such mechanisms are already used for cooperating with many non-EU countries, they are not like-for-like replacements; whilst Hague has its place in relation to enforcement it will not really help on jurisdiction disputes.

In the money courts, the prevailing wind seems to continue to blow in favour of financially stronger parties. Such is clear from C v C [2018] EWHC 3186 (Fam) where Roberts J concluded that post-separation accruals will only be pooled with other assets (and thus subject to the sharing principle) in situations where there is a legitimate needs or compensation claim on the table. She found that (a) £6.5m of H's asset base was non-matrimonial property by virtue of it being a product of H’s post-separation endeavour; and, (b) having considered the s25 factors, the invasion of H's non-matrimonial property was unnecessary to achieve fairness. The resulting judgment left H with around 62.4% of the assets.

That said, the courts have made it clear that insufficient disclosure will not be tolerated such that it will not shy away from attributing a value to the financially stronger party’s undisclosed wealth. In Moher v Moher [2019] EWCA Civ 1482, Moylan LJ concluded that the judge at first instance "undertook a sufficient determination of the extent of the husband's resources having regard to the deficiencies in the evidence caused by the husband." He was therefore entitled to conclude that H had sufficient means to meet both his needs and those of W.

Does the prevailing wind extend towards upholding nuptial agreements designed to protect assets? Not really: "needs" continues to be a trump card (see Ipekci v McConnell [2019] EWFC 19). And in Brack v Brack [2018] EWCA Civ 2862, the Court of Appeal went a step further to conclude that judges are not precluded from making something more than a needs-based order where a prenuptial is fundamentally unfair. Indeed, King LJ said that the court should not feel constrained by the "straitjacket" of past case law; making an award that achieves fairness, not just the satisfaction of needs, is the court's underlying duty. What can we take from this? First, probably to expect an increase in awards to the financially weaker party that go above and beyond Schedule 1 type provision in the upcoming years. Second (the Bracks being a Swedish couple), that prenuptial jurisprudence will continue to be developed by foreign nationals. Third, that it is better to have one comprehensive agreement: different documents in different jurisdictions (as in Brack) seem only to cause problems.

Outdated laws continue to clash with societal developments. TT and YY [2019] EWHC 2384 (Fam) presented the court with a question it had never before had to consider: how to define the term 'mother'? The President found that the terms mother and father are not gender specific, but instead relate to a biological process. Hence the claimant was, by virtue of having conceived, carried and given birth to a child, that child's mother, despite being a man.

In relation to the welfare of children, a welcome endorsement of the "don’t ask them to choose" principle came in the form of Re: L [2019] EWHC 867 (Fam), an appeal on the basis that there had been a failure to properly ascertain the child’s wishes and feelings in respect of whom he was to live with and in which country. The case concerned an 8-year-old boy living with his mother and grandmother, whom the court noted was "exquisitely torn" between the presentation of his father in the maternal home and the reality of his relationship with his father. The court at first instance had ordered a change of residence from the maternal to the paternal home, which meant a move from London to Northern Ireland. The father and Guardian opposed the appeal, with the latter pointing out that she had made a conscious decision not to ask the child where he wanted to live: putting him on the spot would in itself be emotionally harmful and his response unlikely to represent his true wishes and feelings. The court found that there had been no error in the approach of the Guardian and refused the appeal. McFarlane LJ distanced himself from the language of Re: A (Residence Order) [2009] EWCA Civ 1141, in which change of residence is described as a "judicial weapon of last resort." Describing such orders as "weapons" risks focusing on the adults involved as opposed to the welfare of the child, which, as is well established, must be the court's paramount consideration.