I recently spoke at a family law masterclass for law students at Kings College.
When preparing the talk, I started off by quoting my idol, Lady Hale, “A lot has happened in Family Law since the 21st century has begun, and we are only a quarter of the way through. A good parlour game for family lawyers is trying to figure out what is going to happen in the rest of the century…..”
As with all of Lady Hale’s famous speeches, she wasn’t far wrong. Exactly what is going to happen in the coming years? We are definitely having to think on our feet.
I went on to explain the evolution of family law over time. The law has excluded rather than included but thankfully it is now doing the opposite, although in my view there is still a way to go.
The students were quite rightly shocked when I explained that until the Married Women’s Property Act 1870 and 1882, women were not recognised as a separate legal entity, and they could not own property in their own right. Trying telling a woman that these days!
As we know, the Civil Partnership Act 2004 allows same-sex couples to obtain legal recognition of their relationship by forming a civil partnership and the Married (Same-Sex Couples) Act 2013 legalised same-sex marriage.
And bringing us up to date, we now have the Divorce, Dissolution and Separation Act 2020, which thankfully removed the concept of fault on divorce and allowed the joint application.
But what is next? I spoke about the reform for cohabitants, whether nuptial agreements should be legalised and of course the review of the Matrimonial Causes Act 1973 as we know it.
The Law Commission’s scoping report is due on 18 December – an early Christmas present for us family lawyers. It has been confirmed that no specific recommendations are being made at this stage, but the scoping report is likely to be a significant document that will impact on the future of financial remedies law. If the government concludes there is a case for reform based on this report, a full public consultation will likely follow, and we’ll be invited to respond.
The key areas being reviewed are:
- the discretionary basis of the current system and whether this allows for sufficient certainty of legal outcomes;
- the operation of “conduct” as a factor to which the court must have particular regard when deciding to make financial remedies orders. The Law Commission will be hard pressed to ignore the findings in Resolution’s October 2024 ‘Domestic abuse in financial remedy proceedings’ report; and
- the treatment of pensions and spousal periodical payment orders.
We know from previous Law Commission’s reports, in particular the Matrimonial Property, Needs and Agreements, that whilst recommendations can be given, the Government are not quick to respond to such. We’re 10 years on from the recommendations, but no tangible progress. Will the same happen following the latest scoping report? Will Labour bring about the reform that is needed?
We also have the matter of Mrs Standish’s appeal to the Supreme Court which was recently granted in October. Will the decision bring clarity to our discretionary system on the sharing principle and our new favourite word – matrimonialisation?
We also have the progressive rule change in respect of Non-Court Dispute Resolution and the positives this brings to how we achieve resolution for our clients. We are entering into a new era of holistic approaches to settlement and a refreshing new outlook for our clients.
There is also the issue of transparency, and whether the FRC reporting pilot will be further extended.
I wonder what my presentation to the next generation of family lawyers may look like in 10 years’ time…
