20 February 2014

Family law news: Family law… but not as we know it


Firstly, huge procedural changes will be made with the creation of a Single Family Court and reform of court procedures. This is aimed at streamlining the process and ensuring cases are allocated to the right level of judge, but only time will tell if that aim is achieved. Substantive reform may also be on the way with the anticipated arrival of the long-awaited Law Commission Report on Marital Property Agreements, and a review on the law on financial obligations on divorce to meet needs and the treatment of non-matrimonial property, together with an associated draft Bill. Publication of the report has been delayed because the scope of the project was extended to cover a review of needs and non-matrimonial property. Given the wide scope of the report it could result in fundamental changes being introduced.

Further changes to laws relating to separating couples with families will make its way onto the statute books when the Children and Families Bill is enacted, replacing ‘contact' and ‘residence' orders with ‘child arrangements' orders and introducing a legal presumption that the involvement of each parent in his or her life will, in the usual case, further that child's welfare.

We shall also see some of the remaining parts of the Marriage (Same Sex Couples) Act 2013 come into force. The Act is already partially in force, but only in relation to the requirement that a review of civil partnership is to be carried out and a review of same-sex survivor benefits under occupational pension schemes is to take place. From March 2014, marriage will have the same effect for same-sex couples as it does for opposite-sex couples and this will impact upon both existing and future legal instruments, including trust deeds, wills, pre-nuptial agreements and pre-civil partnership agreements.

Reform is also well underway in the child maintenance arena. The Government quietly announced in July 2013 a raft of changes and followed up with a yet quieter announcement in November that the new Gross Income Scheme is now available for all new applications for child support. The new gross income scheme is administered by the Child Maintenance Service (CMS), but the emphasis is on less state involvement and more parental co-operation in the form of family-based arrangements.

The new CMS uses the paying parent's gross annual income, from the latest available tax year, as the starting point to work out child maintenance. In most cases, this information will be provided in tax returns to HM Revenue and Customs and so the CMS will be able to work out an accurate child maintenance figure without waiting for parents to provide income figures. The amount payable will be reviewed by the CMS annually and, perhaps most controversially, where parents share the day-to-day care of their children exactly equally, under the new rules, neither will be required to pay maintenance to each other if they have a CMS case, which would necessitate the financially weaker party (often the mother) having to pursue a potentially costly application through the Court (if possible).

What we await to see is whether the conclusion in the horoscope should read that the transformation in family law will pave the way to a more positive 2015 for clients or whether it is the start of a rocky road to more difficult times.

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