Finding fault, family law reform and more

family law

A week in family law

Following swiftly on from the Court of Appeal’s judgment in the Owens case, interim findings from research exploring how the current divorce law works in practice have been published. Key findings of the research include that the majority of divorces are based on ‘fault’, i.e. blaming one spouse for the marriage breakdown, that divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage, and that fault can create or exacerbate conflict, which can affect negotiations about children or finances where the law expects parties to work together.

The report concludes:

“In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.”

Quite. Now can we please have this long-overdue reform?

Guidance given to judges in January 2014 to routinely publish their judgments is not being consistently followed, leaving the public with a patchy understanding of the family justice system in England and Wales, new research from Cardiff University’s School of Law and Politics suggests. The research found that judges were struggling to find the time to publish judgments safely, without identifying the children and families involved.

Dr Julie Doughty, who led the research, said:

“The judgments now published provide more information about the role of the family courts than was available prior to the guidance, but there are inconsistences in the way courts have responded which can present a confusing and not necessarily representative picture of the system as a whole.”

Interesting. I run an online case digest, which publishes links to all (or almost all) family law judgments I come across. The figures for the number of judgments I link to each year clearly show the increase in published judgments since the guidance, and also a drop-off in the last year: 2013 – 476; 2014 – 734; 2015 – 773; and 2016 – 575. Is the initial enthusiasm for the guidance diminishing?

I’m not sure that it’s really news, but a report by the National Audit Office has found that at least £3 billion in child maintenance payments ordered by the Child Support Agency (CSA) may never be collected. According to the report three-quarters of the £4 billion in payments owed by absent parents, some dating back more than 20 years, are considered “uncollectable” by the Department for Work and Pensions, a further £527 million of arrears is described as “potentially collectable”,  and just £366 million is assessed as being “likely to be collected”. The CSA was replaced by the Child Maintenance Service (CMS) in 2012, and CSA cases are being transferred to the CMS.

I agree entirely with the assessment by Janet Allbeson, senior policy adviser for single-parent charity Gingerbread, who said:

“The government’s approach to winding down the CSA is a smokescreen for a desire to turn the page on the past. Too little was done in the past by the CSA, and now too little is being done by the new Child Maintenance Service to collect outstanding debts.”

Suella Fernandes MP has introduced a new Private Member’s Bill, aimed at reforming family justice. The Family Justice Bill 2016-17 has not yet been published, but it is described as:

“A Bill to make provision for the enforcement of Child Arrangement Orders, including times within which enforcement action must take place; to establish a presumption in favour of shared parenting under Child Arrangement Orders; and to make provision for a commission to review and make recommendations on the operation of family justice; and for connected purposes.”

Hmm, enforcement of child arrangements orders, a shared parenting presumption and a commission to review family justice. Haven’t we been here before? The Bill is expected to have its second reading debate on 12 May.

And finally, a lesson on the grounds for a maintenance variation application. If you want an upward variation of a maintenance order, then it’s probably best to come up with some reason or reasons why the maintenance should be increased, such as that your outgoings have gone up, or the income of the person paying the maintenance has increased, making them able to pay more. It would also help if you give a good reason why you are sitting idly at home, rather than using your ample qualifications to earn a living yourself. Having said all of that, I wonder how many judges in this country would call you a ‘parasite’…

Have a good weekend.

Photo by Clare Black via Flickr under a Creative Commons licence.

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

1 comment

Mary Argyraki - April 9, 2017 at 8:44am

Where are we in terms of applying the principles of “contributive capacity” in English Family courts whilst this is applied, for example in Belgium. As modern couples share child care, they are both earners and homemakers. They also make choices for work, even without agreement, as their finance are separate only contributing to common expenses, so the idea of “mingling assets” is really not appropriate. What happens in divorce, when one spouse chooses to work less to pursue for example art activities or hobbies? Is it fair when the lower earning through choice spouse -when arts/hobbies not brought much money-claims the 50/50 share of all assets, which disadvantages the higher earner?

Leave a comment