Family Law: Looking to the future
Flick through the papers and you’ll read sweeping statements about the state of the British family unit. There are shock statistics on the increase in divorces, and journalists speculating as to the reasons.
However, if you count yourself among any of these statistics, you’ll know that a matter as personal and difficult as divorce or separation can’t simply be labelled and contained within a headline.
Get past these hyperboles and reader-grabbing rhetoric and read further into the subject. It does become clear there is a shift taking place in the world of family law.
If you find yourself facing a family matter requiring legal advice, it may be useful to get a clear, unembellished summary of what changes you might see over the next few years.
Keeping separation out of the courts
This might sound like an obvious goal, and certainly something that most couples will pledge when embarking on a separation.
However the realities of divorce, and the emotions involved can lead to long and drawn out disputes and expensive, unpleasant court hearings.
So what is the alternative?
At Wallace Robinson & Morgan, we have two specially trained and accredited Collaborative Lawyers who are registered with Resolution. They are an organisation seeking to bring communication and discussion to the forefront of separations instead of acrimony.
If children are involved, Resolution puts children first during a relationship breakdown. Through effective co-parenting agreements, or clarifying the responsibilities of each parent and what positive impact each will play in the children’s future.
A move to blame-free Divorce
One of Resolution’s key aims is to encourage divorce without blame, a concept that removes the apportionment of wrong-doing at the beginning of the divorce process.
They propose that one or both parties would file a statement of marital breakdown, without alleging fault or blame.
A waiting period of 6 months would then follow to allow the couple time to consider whether they are making the right decision, after which time the divorce can be finalised.
Under Resolution’s recommendations, the period of waiting could be shortened depending on the circumstances and previous period of separation before the filing of the papers. The hope is to minimise the suffering of either side, and of course, of any children involved.
Read more about Resolution and our Collaboratively trained Lawyers.
Pre-nuptial agreements could become legally binding
Are you a romantic or practical?
Your answer may dictate your feelings on the hot topic or pre-nuptial agreements.
It may come as a surprise to you that pre-nuptial agreements are not yet legally binding, but instead used as guidance by the courts.
Perhaps for this reason they have a reputation for being used only by the very rich with a lot to lose.
However, recommendations and a proposal set out by the Law Commission may change the law so pre-nuptial agreements become legally binding, similar to the current law in the United States.
With these reforms they could become a more commonly used tool to help ring-fence assets and clarify the financial position of each party before a marriage. This is particularly the case with an increasing number of people getting married or re-married later in life, bringing more assets (and for want of a better phrase, ‘baggage’) to the table.
The proposal does stress that each party should seek legal advice before entering into such an agreement. You’ll find more detailed information on the proposed reforms here.
Resolution also suggests that parties entering into a pre-nuptial agreement are made more aware of the approach that a court may take should the agreement be considered in a separation.
Until the law makes pre-nuptial agreements legally binding, this increased clarity should minimise complicated litigation arising from disputes, and manage the expectations of each party.
Better legal protection for co-habiting couples
Presently in England, an unmarried couple would not get treated like a married couple in the event of a separation.
Neither party has the right to make a claim against the other for a share of assets or for any maintenance costs (although claiming on behalf of a child is possible).
A cohabitation agreement is aimed at those wishing to have similar rights to married couples, but without the expense of a wedding!
Resolution recommends a balanced approach to drawing up an agreement, where both parties feel financially protected and catered for. Once again, this forethought and planning can help a couple to work through their financial responsibilities at a key step in their relationship and may prevent dispute and litigation in the future.
In the same way as the pre-nuptial agreements, cohabitation agreements are only enforceable at the discretion of the judge, and can be ruled as unfair or may be overruled by other considerations (such as the needs of any children involved).
In order to ensure the agreement is legally sound, and likely to be upheld, it is advised that both parties seek independent legal advice.
Resolution are lobbying for greater protection for co-habiting couples, particularly as this is a growing social group in the UK.
They hope for an ‘opt out’ system whereby couples automatically gain the right to certain financial orders should they separate after a reasonable period together (or for other evidence of long-term commitment) unless they previously opt out. Once again, children’s needs come first, followed by a strong desire to settle any disputes outside of the courtroom.
Unless you’ve been marooned on a desert island for the last 12 months, you will be aware of the introduction of the Marriage (Same-Sex Couples) Act that comes into force as of the 29th March 2014.
The debate and subsequent passing of this new law has opened up many questions that may have further impacts on the Marriage Laws of the UK.
As a response to this the government have opened up a consultation period to discuss suggestions such as opening up civil partnerships to heterosexual couples so that both same-sex and heterosexual couples have access to Marriage and Civil Partnerships.
An alternative suggestion was to automatically convert all Civil Partnerships to Marriages (effectively phasing out Civil Partnerships altogether) or no longer issuing Civil Partnerships but keeping existing ones as they are.
With the changes introduced in March, this area of family law is clearly still in flux as we move towards a truly equal society. If you would like to be involved in the Consultation, visit the online survey.
These certainly are interesting time in the world of family law.
If you’ve been affected, or expect to be, by the shifting landscape we’d love to hear your comments.