A personal view of the year in family law, part two

family law

As I explained in my last post, this is a very personal view of the last year in family law. I have been through all of the news stories that I have recorded over the year, and picked out the ones that were of most interest to me. This has usually meant one or two stories per month, but that changed as I moved into the second half of the year, when I only found a couple of stories that piqued my interest between July and October. However, that was made up for by the stories I found in November and December…

In July Courts Minister Shailesh Vara announced a consultation on the closure of 91 courts and tribunals in England and Wales. Somewhat incongruously (not to mention disingenuously) we were told that: “Reform will bring quicker and fairer access to justice and create a justice system that reflects the way people use services today.” Now, I know that times are hard and that financial savings need to be made, but this is a disaster for all those whose local courts are closing, effectively meaning the end of local justice.

Skipping on three months, October brought us another Supreme Court decision, this time in the joined cases Sharland and Gohil. These were two appeals by wives which concerned the impact of fraud or non-disclosure upon financial orders following divorce. In both cases the wives sought to re-open financial orders because of non-disclosure by the husbands. The Supreme Court unanimously allowed both of the appeals, so that the cases will now be re-heard. The decisions were welcomed by many family lawyers, including Marilyn Stowe, who said that: “Justice is about having a fair hearing in every respect, and if fraud is proved then it should be immediately pounced upon and set aside. The Supreme Court has today demonstrated that justice comes first and all credit to them for it.”

In contrast to the previous four months there were a number of stories that caught my attention in November, which I will quickly summarise as follows:

  1. Figures published by the Office for National Statistics (‘ONS’) showed that the cohabiting couple family continued to be the fastest growing family type in the UK in 2015. Cohabiting couple families in the UK reached 3.2 million in 2015, representing an increase of 29.7 per cent between 2005 and 2015. All the more reason, surely, to bring in property rights for cohabitees, as suggested by Resolution.
  2. The Child Maintenance Service published new figures that revealed that £35 million of arrears owed to children had accumulated, less than two years after the Child Maintenance Service opened its doors to all new applicants. Single parent charity Gingerbread responded to the news by claiming that the Service was not taking the collection of arrears seriously. The news on child support arrears was to get even worse in December, when the National Audit Office reported that in total absent parents owe nearly £4 billion in arrears.
  3. The Court of Appeal ruled that solicitors instructed on a limited retainer do not have a broader duty of care to their clients. The ruling in Minkin v Lesley Landsberg came as good news to solicitors who offer limited or ‘unbundled’ services, something that has become more common since legal aid was abolished for most private law family matters.
  4. In a bold move aimed at greater transparency the Courts and Tribunals Judiciary announced that the public and media will gain greater access to Court of Protection hearings after a pilot scheme starting next year.
  5. Further figures published by the ONS showed that the number of people divorcing in England and Wales decreased by 2.9 per cent in 2013. Suggested reasons for the drop included the lack of legal aid discouraging people from commencing proceedings, and the increase in the number of cohabiting couples, as demonstrated by the ONS figures mentioned in paragraph 1 above.
  6. The President of the Family Division issued Guidance on Arbitration in the Family Court. As I said at the time, I was particularly glad to note that the guidance specifically states that it does not apply to, or sanction, any arbitral process based on a different system of law other than the law of England and Wales and not, in particular, “one where there is reason to believe that, whatever system of law is purportedly being applied, there may have been gender-based discrimination.” More of which in a moment…
  7. Lastly, in J (A Child) the Supreme Court allowed the appeal by a Moroccan father whose son was brought to the UK by his mother against the father’s wishes. For further details of this case, see the penultimate paragraph of this post.

And so to December, during which two stories caught my eye:

Firstly, a Dutch academic who had gained unprecedented access to Sharia courts in this country reported that the courts are locking women into “marital captivity” and doing nothing to officially report domestic violence. Shocking (although not entirely unexpected) stuff. Clearly, something needs to be done about these courts, and it was therefore pleasing to hear that the Government has ordered an independent review of the courts. Home Secretary Theresa May told MPs at a House of Commons Home Affairs Committee meeting that there should be one rule of law in the UK – the rule of law set by parliament. Quite.

And finally, we were informed that thousands of divorce settlements could be compromised due to a software error on the Ministry of Justice’s online Form E financial statement. Wonderful. As I said here, this is very suggestive of the MoJ getting the job done ‘on the cheap’.

Not a happy way to end the year. Let us hope for better in 2016…

Image by Victoria Pickering via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Luke - December 27, 2015 at 4:06pm

“Figures published by the Office for National Statistics (‘ONS’) showed that the cohabiting couple family continued to be the fastest growing family type in the UK in 2015. Cohabiting couple families in the UK reached 3.2 million in 2015, representing an increase of 29.7 per cent between 2005 and 2015. All the more reason, surely, to bring in property rights for cohabitees, as suggested by Resolution.”
No, again, people make a choice – we don’t need to bring in property rights AND LIABILITIES for cohabitees – if they want that then they know what to do- they can get married !
I think what is really happening is that many people are choosing to avoid marriage because the Family Court makes it so difficult to get out of unscathed.
Now you may come back with the hoary old chestnut that some people are a bit thick and still believe common law marriage exists – well that could be solved very easily with an advertising campaign ( e.g. during X-Factor 🙂 ) and education in schools – but of course John your mates can’t make any money out of that …

JamesB - December 28, 2015 at 3:21pm

If you bring in co-habitation law then less will co-habit. Better would be to have better ancillary relief law then more would marry. Its that elephant in the room again.

Looking at the mess lawyers have made of their relatives and close relatives marriages and divorces is encouraging more to try and dodge that bullet by co-habiting or if you make that involving lawyers then living apart together. Better is to make the marriage and ancillary relief laws fair such as they are in Scotland rather than the dodgy anti male anti person who works anti the person who doesn’t stay at home with the children, laws we have, which need changing to be more fair and then more could marry and the cost of property would be fairer and reduced which would be a good thing too.

JamesB - December 29, 2015 at 12:21am

Marrying people against their wishes as John suggests (by enforcing co-habitee rights making cohabiting marriage) is not the way to go on this matter.

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