FAMILY/MATRIMONIAL: An Introduction to London (Firms)

Family Law Overview from Alexiou Fisher Philipps LLP

STOP PRESS! Supreme Court case on 20 October 2022: financial claims on divorce, after the death of a party

Divorce cases only rarely make it to the Supreme Court. On Thursday 20 October, the Supreme Court will hear the appeal brought by relatives of a wife Ms Hasan* following the refusal of the High Court judge to allow her financial divorce-related proceedings to proceed after the death of her husband. He died midway through the court case. The judge granted her permission to seek a leapfrog appeal, bypassing the Court of Appeal, on important public policy grounds.

Divorce financial claims that are ongoing do not survive the death of the respondent spouse if they are not adjudicated upon by the date of death. This law dates to a 1950’s case (Sugden). The judge said the law is outdated and unsatisfactory. Widowed spouses in the position of Ms Hasan currently must fall back on 1975 legislation for claims for partners of deceased people – not full divorce claims. This contains complex eligibility rules which restrict whether claims can be made, and it is not specifically tailored to divorce.

There is a good chance that the top court’s decision will reverse the current case law, and that divorce financial claims once started will be allowed to conclude against the deceased’s estate. If the Supreme Court decides this, the death of a respondent party mid-way through financial proceedings will no longer act as a barring event.

*the full case title is Unger and Another (in substitution for Hasan) v Ul Hasan (deceased) and Another

Problems with court listing 

Family lawyers are acutely aware of the very significant backlog in the family court system, and the immense pressure which it is under. The coronavirus pandemic has worsened this, but the delays pre-date it. Delays create a stressful and traumatic environment for those in real need whether in financial or children matters. HM Courts & Tribunals Service (HMCTS) previously estimated that it could take three years to return to pre-pandemic levels of service. The causes are well known: budget cuts, a long-standing programme of court closures and the ending of legal aid.

Judicial availability is a big problem, too. This impacts upon court listings and creates the backlog and delay. Hearings are delayed, adjourned, or not listed for many, many months. Commenting on the problems, The Law Society President (until October 2022) Stephanie Boyce has said that the government must “ensure, so far as possible, that there are sufficient fee-paid and full-time judges to deal with existing and new caseloads” and “maximise existing court capacity, boosting it through Nightingale courts to allow more in-person hearings to take place safely”. She also noted that “restoring early legal advice for family law cases would … mean fewer cases would go to court. Instead, solicitors could assist negotiated settlements, refer clients to mediation and better manage client expectations.”

Despite this, without the resources to tackle the problem adequately, or the appetite for government funding and policy change, the issues persist, particularly with respect to judicial availability and court listing.

What is the message for our clients? If you are ready for delay and uncertainty of outcome (and some clients see this as a tactic): go to court. If you are not, then try and stay out of court and look at all the alternatives of mediation, arbitration and the rest of the lawyer-led negotiation options.

Privatised justice 

As a result of the problems, the drive to privatised justice continues. Something that would be unacceptable in the health sphere is happening by stealth in our corner of civil justice.

In financial cases and private law children cases, the shift towards private FDRs (financial dispute resolution where a senior barrister gives a neutral evaluation which is non-binding) and arbitration continues. Such private hearings are becoming more popular even for cases further down the asset and income scale. Private FDRs/arbitrations can be convened within a couple of months. Parties can also choose their own specialist FDR/arbitration judge, rather than take potluck as to whether their judge is experienced and respected in their field.

The private judge will be a well remunerated, well read-in specialist in their field. They will focus on the one case on the day (rather than several in an overburdened court list). Anecdotal evidence suggests settlement rates are higher than court-led FDRs.

Brexit fallout. Forum conveniens – how is it decided and the lack of case law at present.

International couples often have a choice of where to start divorce proceedings – here or abroad. Since 31 December 2020 a key piece of EU regulation ceased to apply to the UK. This had provided for race to court rules so that the first in time seized their jurisdiction of choice. We have returned to the pre-EU rules. Under the old doctrine of forum conveniens it is no longer strictly relevant who issued the divorce application first. The decisive factor is the closest connection the dispute has with that jurisdiction. But the concept is woolly and hard to pin down.

The UK courts will consider several factors in determining closest connection to this jurisdiction or the foreign one, such as: the nationalities involved, residence and domicile of the spouses, the location of their assets; where they work; where any children live and go to school.

A lengthy and costly battle to win the forum argument can take place to work this out. But a few factors, we suggest, have lessened the chances of this argument ending up in court. First, the person who issues first may well win an unofficial divorce race. The foreign EU jurisdiction, if it is first, may plough on regardless of there being a second in time petition in England (applying the current EU rules Brussels II ter (Regulation (EU) 2019/1111) as if we were still EU members); alternatively it will allow the English jurisdiction to proceed, if first in time, again as if the UK were still in the EU and subject to EU divorce rules; alternatively the party who is first in time in England may achieve a deterrent effect over their spouse who then chooses not to proceed.

Alternatively, and finally, both parties may step back from the brink and decide not to risk the uncertainty of outcome of a court deciding “closest connection”.

As of the date of writing there is no English-reported decision on a post 31.12.20 forum conveniens decision. The predicted glut of expensive forum arguments has not materialised yet. Parties seem to be pausing for thought and negotiation first.

Divorce law reform and online divorce 

On 6 April 2022, the most significant change to our divorce laws came into effect. Indeed, this was the first major change to our divorce laws for some 50 years – when the Matrimonial Causes Act 1973 was enacted. We now have the Divorce, Dissolution and Separation Act 2020 which is a complete overhaul of the legal requirements and process for divorce, introducing no-fault divorce to England and Wales. Parliament had a go at this in 1996 in the Family Law Act of that year, but famously the provisions were never put into effect.

No longer will a spouse be required, or indeed permitted, to make allegations about the conduct of their spouse in order to obtain a divorce.

It is not just this element of our divorce laws which have been reformed. The 2020 Act overhauls the archaic language, replacing Latin and legalese with simpler, layman-friendly terms. A petition has become a divorce application, decree nisi is now a conditional order, and the decree absolute if the final order.

Divorce petitions can now be served by email if we ask the court to do this instead of post. We have had responses from the other spouse to email service, via the court portal, within two hours even in international cases.

Self-help divorce (as opposed to the financial and children issues which ensue) without solicitor involvement is easier as almost the entire divorce process is on-line through HMCTS. There remain a few glitches in the online system but, all in all, the new system is much more suited to modern life. If one party or both parties want a divorce they should be able to get it simply and cheaply.