A government report reveals reform opportunities may be slipping away

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Having witnessed what people are talking about in the ‘family law debate’ for more years now than I care to mention, I think I have at least gathered expertise on one point: the topic that is at the top of the discussion.

Whether it be irate litigants aggrieved at their experience of the system, highly experienced and respected lawyers, or the President of the Family Division himself, the number one topic can be summarised in one word: reform. Sometimes it seems that every family law commentator is seeking reform of the system, in one way or another.

The other day I received an email from GOV.UK informing me that the seventh annual report on the implementation of Law Commission recommendations had been published. In the area of family law, it probably contains little that has not been mentioned on this blog previously, including by me. Nevertheless, I thought it might be useful to remind ourselves what we may be missing.

The report covers the implementation status of Law Commission reports since January 2017. The report is divided into three sections: recommendations that have been implemented during that period, recommendations that have not yet been implemented, and decisions taken not to implement recommendations. The recommendations that relate directly to family law all fall within the second section: recommendations that have not yet been implemented. That section is itself divided into two categories: recommendations in the process of implementation, and recommendations awaiting a Government decision on implementation. Sadly, the family law-related recommendations are all in the latter category.

There are three recommendations relating directly to family law, and I will deal with each of them in turn.

The first family law-related recommendation in the report, though not the first in time, was contained in the Commission’s report on Matrimonial Property, Needs and Agreements in February 2014. The report recommended clarification of the law of financial needs on divorce to ensure that the law is applied consistently by the courts, investigated whether an aid to the calculation of spousal support could be devised, and recommended the introduction of enforceable nuptial agreements. Guidance on needs has been published (you can find it here), and we are told that: “The Government is considering the Law Commission’s recommendations on a financial tool for separating couples and on qualifying nuptial agreements as part of a wider consideration of family law and will respond in due course.” Otherwise, nothing has been done, although hopefully, the new specialist financial remedy courts will have the effect of ensuring that the law is applied consistently across the country.

The second family law-related recommendation in the report was actually contained in two Law Commission reports, on financial remedies for cohabitants and on inheritance rights for cohabitants, published in 2007 and 2011 respectively. Both have been kicked into the long grass by the Government, which announced in 2011 that it did not intend to take forward the recommendations in the Law Commission’s 2007 report in that current Parliament, and in 2013 made a similar announcement regarding the cohabitation related recommendations in the 2011 report. The only ray of hope is contained in the statement that: “The Government will be considering the Commission’s recommendations as part of a wider consideration of family law.” Hmm.

The final family law-related recommendation in the report was contained in the Commission’s report on enforcement of family financial orders, which was published in 2016. The report made various recommendations to simplify and improve the enforcement of financial orders, particularly useful for the many litigants in person who are now having to navigate this complex area. Many who have orders against them are avoiding their responsibilities by taking advantage of this complexity – and after all, if you can’t enforce an order, there is no point in having it in the first place. Again, the recommendations have not been implemented. The Government provided an interim response to the recommendations in August 2017, and a full response is promised: “in the context of the Government’s broader thinking on the family justice system.” Hmm again.

As I’m sure most readers will agree, there is some excellent stuff in these recommendations, which could go a long way towards seriously improving the family justice system. Obviously, the longer they ‘sit on the shelf’, the more likely that they will never be implemented. The excellent recommendations relating to rights for cohabitants, in particular, have now gathered a thick layer of dust.

Let us hope that these reform opportunities are not allowed to slip away.

You can read the full report here.

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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