26 October 2018

Calls for reform in family law


Thomas Kurland
Associate | UK

There have been growing calls for reform of family law in England & Wales, as critics suggest it is failing to keep pace with the modern reality of family life.

Cohabiting couples

The Office of National Statistics suggested there were approximately 3.3m cohabiting couples in 2016 and they are the fastest growing family type in the UK. However, cohabiting couples are not afforded the same protection as married couples if they separate and have no guaranteed rights to ownership of each other’s property on relationship breakdown.

Surveys demonstrate there is still a misconception that ‘common law marriage’ exists in England and Wales. As a result cohabiting couples are often vulnerable as they fail to take any steps to protect their respective positions (eg by entering into a cohabitation agreement).

Baroness Hale (the President of the Supreme Court) has been a particularly keen advocate of reform in this area and has pointed to the success of the introduction of laws to protect cohabitants in Scotland as a means to help compensate cohabitants for any ‘…economic disadvantage suffered by one, or economic advantage gained by the other, as a result of the relationship…’.

Sir James Munby, who recently stepped down as the most senior family judge in England and Wales, described the law relating to unmarried couples as “intellectually dishonest”. He went on to suggest that “Reform is desperately needed. The Law Commission has recommended reform. Thus far governments have failed to act. Reform is inevitable. It is inconceivable that society will not in due course have righted this injustice.”

Civil partnerships

Related to this is the call to extend civil partnerships to heterosexual couples which has been the subject of litigation in Steinfield and Keidan v Secretary of State for Education. In that case, a heterosexual couple argued that the limiting of a heterosexual couple’s choice to marriage, while affording same-sex couples a choice between marriage and civil partnerships, was discriminatory and contravened their right to a family life under article 8 of the European Convention on Human Rights. The Supreme Court made a declaration of incompatibility, and reform of this law is now being considered by Parliament.

‘No fault’ Divorce

Perhaps the area that has seen the most publicity over the last year has been that of ‘no-fault’ divorce. In England and Wales parties can divorce by consent without blame only after two years’ continuous separation. If a spouse wished to divorce before that time they have to rely on fault; demonstrating that their marriage has irretrievably broken down and that their spouse has either behaved unreasonably or had an affair. In 2014 60.7% of divorce petitions in England and Wales relied on either adultery or unreasonable behaviour.

Having to rely on one of these facts promotes a blame culture and introduces a degree of discord and unpleasantness into divorce proceedings from the beginning. In many cases, the divorce is just the catalyst for proceedings regarding the home, finances and children and the current focus on fault runs the risk of making it harder for parties to reach agreements on these important matters.

As a result, there have been widespread calls for the introduction of ‘no fault’ divorce in England & Wales. Those calls have been amplified by the recent Supreme Court decision in Owens v Owens, which is discussed in more detail in a recent article by Jennifer Dickson, and the Government’s recent announcement of a consultation on this topic, which shall close in December 2018.

Thomas Kurland Associate | London

Category: Article