Another busy week in family law with the Mills v Mills case having its day in the Supreme Court, the possibility of civil partnerships opening up to sibling couples and digital divorce plans by the HMCTS. John Bolch shares his views in this week’s family law update.
As I mentioned here, the Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill, which aims to extend civil partnerships to sibling couples, is to have its second reading in the House of Lords today. If passed in its present form, the Bill will mean that two people who are considered to be siblings (brother, sister, half-brother or half-sister) would be able to enter into a civil partnership, provided they are both over the age of thirty years and have lived together for a continuous period of twelve years. The idea behind the Bill is to give sibling couples similar rights to civil partners, for example in relation to an inheritance of joint tenancies and pension rights, and of property free from tax. It’s an interesting idea and one that could quite clearly rectify the considerable financial hardship that many siblings suffer at the end of a sibling relationship.
HM Courts and Tribunals Service (‘HMCTS’) has published its Business Plan for 2018-19. The Plan sets out the new services and digital processes that users of the courts and tribunals can expect, as part of the court modernisation programme. One of these will be that HMCTS will: “Deliver a digital end to end service for applications to legally end a marriage or civil partnership and resolve financial issues, probate services, and for social security and child support appeal applications – replacing the current paper-based process”. Sounds good, although I’m not sure just how much of the procedure to obtain a financial remedy can be digitised – certainly contested hearings are likely to continue to take place in real courtrooms, at least for the foreseeable future. Not so good news is that the Plan also tells us that in the longer term HMCTS will have fewer court buildings. It does promise to optimise hearing capacity through closures and amalgamations of buildings, to allow it to better focus funding on those buildings it needs, although I’m sure that that will be scant consolation for those who in future will have to travel far further to seek justice. I also note that MPs on the public accounts committee have said that they have “little confidence” that the court modernisation programme can be delivered. Ouch.
The Supreme Court has handed down its decision in the case of Mills v Mills. Mr Mills had been granted permission to appeal to the court on the limited ground of whether, when it increased the amount of maintenance he should pay to Mrs Mills, it should have taken into account her housing costs, those costs having previously been provided for in the capital settlement. The Supreme Court unanimously allowed the appeal, saying that the judge at the original hearing (in the court below the Court of Appeal) was entitled to decline to vary the maintenance so as to require Mr Mills to pay all of Mrs Mill’s housing costs. A small victory for Mr Mills, but not the much bigger one that he had hoped for at the outset, when he sought to have the maintenance, which he has been paying since 2002, stopped entirely. The case has raised again the whole debate of whether one spouse, usually the husband, should be liable to pay maintenance to the other spouse possibly for the whole of the other spouse’s life. Clearly, that debate will have to wait for another day.
And finally, another debate has been taking place, this time in Parliament, regarding the issue of the cross-examination of domestic abuse victims by their alleged abusers in the family courts. The government previously promised legislation to deal with this, but that was interrupted by the General Election last year and hasn’t been heard of since. Resolution, the association of family lawyers, and The Law Society have joined the domestic abuse charity Women’s Aid in calling for the government to urgently bring forward that legislation. They point out that research by Women’s Aid and Queen Mary University of London found that one quarter of victims surveyed reported that they had been cross-examined by their abusive ex-partner during child contact hearings in the family courts, and said that: “This practice has a traumatic impact on victims, diminishing their ability to give evidence and preventing them from effectively advocating for their child’s best interests and safety.” Let us hope that the government finds time in its admitted busy schedule to introduce this important legislation, made necessary in particular by the fact that many alleged abusers are no longer represented, due to the government’s legal aid cuts.
Have a good weekend.
Your last paragraph cannot pass without comment. You qualify “abusers” with “alleged” but you leave the word “victims” unadorned. Try “complainants”, which is the word I insist that prosecutors must use when I chair in the Magistrates’ Court.
As for the legislation – unless the money is found to pay a lawyer to cross-examine the alleged abuser he, usually he, must be allowed to do it in person, and given the leeway which litigants in person need; and if that causes distress to the complainant that is not his fault. The right to cross-examine exists at common law and can only be abolished by statute. That is established by the fact that it required an Act to abolish the right to cross-examine in person in rape and criminal d.v. cases.
When a man is at risk of losing his home, his children, his pension, everything he has in the world, his right to defend himself must not be compromised to avoid causing “distress”.
Well said Andrew.
Draft legislation designed to encourage the Government to make the first major changes to divorce legislation for nearly 50 years was published on Wednesday, 18 July, when it received its first reading in the House of Lords.
https://services.parliament.uk/Bills/2017-19/divorceetclawreview.html
The current divorce laws make it harder to reduce conflict and confrontation. We need a better way for separating couples to move forward with their lives. We need to end the blame game