I noted with interest the news last week that a detailed review of family law in Scotland has been suggested. I have no expertise in Scottish law so I can’t comment upon the suggestion and I’m not even certain I understand what exactly is being proposed in terms of what is to be covered. However, it did make me wonder whether the time has come for a full review of family law south of the border.
Now, it may seem rather odd that I should have this thought, only a few weeks after I posted here complaining about the fact that our family justice system faces an almost permanent state of change. However, what I have in mind is to look at the system as a whole, rather than just tinker with it in a piecemeal fashion, as has been the case of late. In any event, I am not saying that everything should be changed – far from it. Much of what is required is simply a case of consolidating existing law into one place where it can be more easily found – something that is particularly important in these days of the litigant in person.
The problem with piecemeal reform is partly that the essential elements of family law are inextricably linked. It is not at all unusual, for example, for a divorce case to also involve a dispute over arrangements for children and allegations of domestic violence, and yet the law relating to those three things is set out in three separate statutes. This is despite the fact that the outcome on one issue can have a direct bearing upon the other issues, for example the making of an occupation order on a domestic violence application can obviously have an impact on arrangements for children.
I would suggest that any review should at least include the following areas of family law:
- Divorce and nullity, including dissolution of civil partnerships. Our divorce law was framed in the 1960s, a very different era. There has been so much social change since then that many of the ideas behind the law are simply no longer applicable. In particular, of course, the whole concept of fault-based divorce is archaic. As I have said here many times previously, we are in desperate need of bringing divorce into the modern age, by the introduction of a no-fault system.
- Finances on divorce/dissolution of civil partnership. Again, the basics of the system date back more than forty years. Yes, there have been a number of changes since, but they have just made things more complicated – how a litigant in person is supposed to navigate his or her way through the amendments to Part II of the Matrimonial Causes Act, I don’t know. There have been a lot of calls for the financial remedies system to be reformed, perhaps with the introduction of some sort of formula to work out who gets what and therefore create more certainty. I’m not going to get into that debate here, but even if there are to be no changes there should surely be some clarification of the existing system.
- Children law, both private and public. The essential law here may be somewhat more recent than that in relation to divorce, but even this is more than twenty-five years old. Now, I realise that age of itself does not make a good law bad, but the passage of such a period of time is surely a good enough reason for a review. Such a review will once again be an opportunity for clarification and consolidation, in any event.
- Rights for cohabitees. What law we have here is spread across various statutes and, worst still, comprised in case law. I’m sorry, but couples that choose not to marry are families too, and should be included in the same family justice system as couples that do marry. I’m not saying that they should necessarily be given the same property rights as married couples (no one is saying that), but the time has clearly come for them to be given clear rights, set out in statute.
- Domestic violence – I don’t know whether there is any great need for change here, but I have always thought the system set out in Part IV of the Family Law Act is far too complicated, with its different rules relating to the status of the applicant for an order. Surely this can be simplified?
I guess what I am suggesting is simply that there be some joined-up thinking on family law reform. Let’s get it up to date, all in one place and in a form that is intelligible for all those who now have to navigate the system without legal assistance.
Well, one can but hope.
As for point 4, cohabitee should be given the right to what has their name on it and to half of what has both names on it – unless there is a written instrument which provides otherwise in which case that instrument should prevail – and the duty to expect nothing from what has not got their name on it. Sale to be postponed if necessary until it will not cause undue hardship to children of both parties if – but only if – the party asking for the postponement can keep down the mortgage. That’s simplification for you. And justice.
100% agree with all of this except I would also as in Scotland properly identify what is and what isn’t matrimonial property as it’s causing chaos. First priority is the children and obviously housing and making sure they are taken care of but beyond that what you enter into the marriage with unless you make it matrimonial by some mechanism it should be ring fenced as your own.