Happy New Year? My hopes for 2016

family law

As a new year dawns it seems to be traditional to look ahead to what the next twelve months may have in store for us, in terms of change. Well, I may be proved wrong, but I don’t actually foresee any great changes in family law this year. Accordingly, rather than trying to predict what changes may be in store, thought I would make a short list of what changes I would like to see happen this year, along with my assessment of the chances of those changes actually coming to fruition, or at least of there being some progress towards each change, in the next 362 days.

No fault divorce – It is quite absurd that in 2016 most divorces require one of the parties to blame the other for the breakdown of the marriage. This is both a nonsense (it is very rarely the case that one party is entirely to blame) and an entirely unnecessary cause of further animosity, which has no bearing upon the ultimate outcome. All the court needs to know is that the marriage has irretrievably broken down, and that information can be supplied by either or both of the parties, by filing a statement to that effect. Apart, perhaps, from a short period for reflection, the divorce should then be ‘automatic’. There should be no defence – after all, there can be no marriage if one party says it is over. David Bacon MP’s No Fault Divorce Bill is not really what I have in mind, for the reasons I have stated here previously, in particular it does not replace the existing ‘grounds’ for divorce, and it requires both parties to file a statement of irretrievable breakdown.

Chances of progress this year: I suppose that there is a chance that David Bacon’s Bill will be passed, but I would put that chance at less than 10 per cent.

Property rights for cohabitees – Can it be right that a woman lives in a man’s house for twenty years, gives up her job to bring up their children and is then thrown out of her home with nothing? What I and many other family lawyers am asking for is not equal rights for cohabitees and married people, as some would have you believe. All that I am asking for is basic protection for those who suffer serious financial hardship upon cohabitation breakdown. Back in 2007 the Law Commission recommended reform of the law, but in 2011 the Government announced that it would not be taking forward the Commission’s recommendation, at least in the last parliamentary term. What about this parliamentary term?

Chances of progress this year: I don’t want to get party political but this reform is surely unlikely under a marriage-favouring Conservative government, so I will give it a 0 per cent chance.

Legal aid returns – OK, I am not naïve enough to believe that there is any prospect of legal aid being reinstated for all private law family matters in 2016 or, indeed, ever. However, is there some chance that there might be some relaxation on what is effectively a blanket ban? Well, the recent news that more exceptional case funding applications have been granted (as I mentioned here) gives me cause to think that there may be some possibility that at least those in the greatest need might be able to get proper representation, a trend that will hopefully continue.

Chances of progress this year: An optimistic 25 per cent.

Regulation of all fee-charging legal advisors/assistants (including training and insurance) – An inevitable (and entirely foreseeable) consequence of the abolition of legal aid was that litigants would turn to non-lawyers for assistance with their cases, usually in the form of McKenzie friends. Now, I have nothing against that and, indeed, many McKenzie friends do an excellent job, as I have stated here previously. However, if they are not regulated, trained or insured then obviously the public are at risk, and this is especially so when they charge for their services. Surely, it is a nonsense that lawyers require regulation, training and insurance in order to protect the public, but non-lawyers don’t?

Chances of progress this year: I reckon there could be some moves to protect the public against unscrupulous charlatans, so I would put this at a hopeful 50 per cent.

Lower court fees – The Government seems to be determined to increase court fees at every (regular) opportunity. The rationale, we are told, is that those who use the courts should pay for them (even if the new proposed divorce fee is more than the cost to the courts). It shouldn’t need saying, but justice should be for all, not just those who can afford it. Yes, I know that there are fee exemptions for the less well off, but there is an increasingly large section of society that earn too much for a fee exemption but not enough to be able to afford the fees. They are effectively priced out of justice, and this is quite obviously wrong.

Chances of progress this year: I see no reason for optimism. In fact, I can only see the situation getting worse, with more increases. I therefore put the chances at 0 per cent.

Fees for child support abolished – Another money-making scam from the Government: charge those who use the Child Maintenance Service (‘CMS’). As was also entirely foreseeable, this led to a drop in the number of parents seeking help, which inevitably means children suffering. The Government is encouraging parents to agree child maintenance arrangements between themselves, thereby avoiding the need to use the CMS. However, those who agree arrangements were never the problem. The problem is those non-resident parents who refuse to pay. Why should the parent with care have to pay a fee just because the NRP refuses to pay? It is just another ill thought-out money-making measure by the Government.

Chances of progress this year: I’m afraid I can’t see any prospect of the Government backing down, so once again I have to put the chances at 0 per cent.

*    *     *

So, as far as most of my hopes for 2016 are concerned, the chances of them actually happening this year are slim or non-existent. All of which, I’m afraid, paints a rather depressing picture for family law in 2016: more unnecessary arguing over who is to blame for marriage breakdown, more former cohabitees unfairly treated, more people unable to obtain proper legal assistance, and more people unable to afford the legal remedies to which they are entitled.

Happy New Year?

Image by Arizona Department of Transportation 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.

View more from this author

Leave a comment