Reflections on 2013 (part two)
December 31, 2013 16 comments
In the second of a two part feature, professionals from Stowe Family Law LLP reflect on significant developments in family law during 2013.
The Children and Families Bill 2013 has been a key element of family law this year. The Bill seeks to put in place many of the recommendations made in 2011 in the Family Justice Review.
The Bill, currently at the report stage in the House of Lords, will amend areas of private law , including changing the current concept of contact orders into ‘child arrangement orders’. This will in turn have an effect on the ability yof parents with ‘residence’ being able to take their child out of the country without the permission of the other parent (holding ‘parental responsibility’).
A second key is parental Involvement. This issue had originally been called ‘shared parenting’ but following much debate amongst professionals, the clause was renamed ‘parental involvement’. This clause was introduced to ensure that the courts’ starting position in private law cases was that the child should maintain a relationship with both parents when it is safe and in the child’s best interests.
The clause was worded carefully to avoid the belief that it would entitle both parents to equal time with the child or a starting point of joint residence (50/50). The court is “to presume, unless the contrary is shown, that the involvement of that parent in the life of the child concerned will further the child’s welfare .” Although the law had always sought to ensure that parents and children are able to maintain a relationship following divorce or separation, this clause made consideration of maintained relationships an explicit requirement and in doing so, it has hopefully banished the notion of courts being biased towards one parent, usually the mother.
Such a clause has also called in to debate the issue surrounding enforcement of court orders in such cases as contact arrangements. The public consultation on the parental involvement clause asked those taking part to provide answers to questions on how the family courts could seek to enforce orders which were breached. Such penalties as removing the driving licence from the offending parent, fines and imprisonment were suggested but the discussions on enforcement continue.
The Children and Families Bill has fuelled debate amongst professionals in 2013. Its implementation in 2014 will, no doubt, continue to provide commentators with much to talk about.
This year new legislation came into force which enables an individual to make an application to the court for the other party to pay their legal fees. Such orders are known as ‘legal services’ orders. Provisions were added to the Matrimonial Causes Act 1973, under sections 22ZA and 22ZB.
The person applying – the ‘applicant’ – needs to prove that they have exhausted every alternative avenue in trying to obtain funding, and also show that the person who may have to pay – the ‘respondent’ – has the means to do so. Such an order could be of great assistance in some circumstances– imagine, for example, a housewife married to a wealthy businessman.
However legal services orders are limited. There are high hurdles to meet and very often the amount awarded is nowhere near enough to covet the costs being incurred.
What needs to happen is for costs rules to change in order to incentivise the powerful, richer party to settle.
Solicitor Kelly Parks specialises in all areas of family law, including divorce, relationship breakdown, and the resolution of financial issues. She has significant experience of high net worth cases. She also deals with children’s issues, including contact and residence disputes.
For me the single most interesting thing to have happened in Family Law in 2013 has been the passing of the Marriage (Same Sex) Act. In 2004 the Civil Partnership Act gave same sex couples most (but not all) of the rights and responsibilities of a civil marriage. Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner’s children, as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. However from 29th March 2014 same sex couples will be able to marry (or convert their Civil Partnership into a marriage) and will have all the same rights and responsibilities as opposite sex married couples.
Apart from being a huge and important step for equality it has also challenged the definition of one of our most important institutions – marriage. As recently as 2004 (when the Civil Partnership Act was passed) the Government was at pains to make it clear that although Civil Partnerships provided the Partners with the same rights as Spouses it was not the same as a marriage which needed a man and a woman to be legitimate. It is incredible that within the space of 10 years public opinion has been able to sway the Government into changing a law so fundamentally.
The passing of the Marriage (Same Sex) Act gives me hope that other aspects of Family Law which have struggled to be approved may well come to be in the next 10 years. I would very much want to see a cohabitation law as cohabiting couples currently have no protection and are often left homeless and moneyless after separation Or enforceable nuptial agreements which would allow couples to agree the terms of their marriage or civil partnership before they tie the know as it were. And no fault divorces. It would be nice if couples were given the option to divorce quickly without having to blame each other. Yes, I am very hopeful for the future.
French speaking Solicitor Melanie Bataillard-Samuel’s areas of work include a broad range of divorce financial remedy cases and matters concerning financial provision for children and all aspects of financial provision arising out of the breakdown of marriage or of cohabitation, such as maintenance pending suit and “TLATA 1996” applications.