Changing the face of family law: A retrospective on some of the seminal family law decisions of the last 20 years
2020 brings about the anniversaries of many seminal cases which are still at the forefront of every case, we explore a few of them
As many a law student knows, there are reported cases, and reported cases, the latter being those cases which have not only been decided by the highest courts in the land, but which have fundamentally shifted the legal landscape, shaped societal changes and the way in which family law cases are decided.
Coincidentally, 2020 brings about the anniversaries of many of these seminal cases which are still at the forefront of every case. We explore a few of them.
Sharing and Fairness: White v White  UKHL54
20 years ago, the then House of Lords dealt with a farming case following a 30-year marriage, and introduced some fundamental changes to the way family lawyers approach cases.
It is somewhat chastening, looking back, to realise that it took until the year 2000 for the court to introduce a starting point of ‘sharing’ in financial cases arising on divorce, whereby “equality should be departed from only if, and to the extent that, there is good reason for doing so”.
The court also stated what seems self-evident now, that “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”.
The House of Lords urged ‘fairness’ above all else and recognised that an equal division of the assets would not result in fairness in all cases. Each case is determined on its own facts, applying a range of criteria set out in s25 Matrimonial Causes Act 1973.
The existence of inherited wealth or property acquired before the marriage could, the House of Lords said, dictate a move away from equality. In this case, Mrs White received 43% to recognise an inheritance received by her husband shortly before separation.
Prenuptial Agreements and Self-Determination of Outcome: Radmacher v Granatino  UKSC 42
It is 10 years since the Supreme Court gave its landmark decision in the case of Radmacher v Granatino.
It is impossible to accurately gauge the volume of agreements being signed in the UK, as entering into a prenuptial agreement is a highly confidential and personal decision. However, anecdotally, family lawyers across England and Wales have reported a significant increase in the number of people seeking advice and entering into prenups since the Supreme Court heard the case of Radmacher v Granatino in 2010, which found that prenuptial agreements should be given decisive weight in divorce proceedings. This is certainly our experience at Weightmans.
The court shifted the emphasis towards holding a party to account subject to safeguards being adhered to. Prenups are not guaranteed to be binding, as this would require a change in the law/statute, but they are very likely to be upheld as "the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
Prenuptial agreements are typically associated with celebrities and the super wealthy, but the reality is quite different. They are growing in popularity with entrepreneurs, people with shares in a limited company, or those with a stake in a family business. Equally, people who have received an inheritance (be it large or small) may feel that this money should be considered separately to matrimonial assets. Occasionally it is the protection of future shareholdings or a future windfall that is the motivating factor, or ensuring that children from a first marriage do not lose out on their inheritance as a result of a divorce.
Inevitably, with more prenuptial agreements being entered into, more cases are being tested in court. However subject to a number of requirements and formalities being complied with, a prenup may well be upheld. Even if adjusted by the court, a prenup can result in a significantly different, and less generous outcome than if no prenup had been entered into. See our previous article.
Non-disclosure: Sharland and Gohil  UKSC 60
It has been five years since the Supreme Court judgments in Sharland and Gohil.
Before Sharland, in matrimonial cases the Court of Appeal had made it clear that even potentially fraudulent non-disclosure would not necessarily affect a settlement if it could be said that the Court’s knowledge of the true position would not have resulted in a substantially different order.
The decision of the Supreme Court made it very clear that ‘fraud unravels all’.
The general legal rule in commercial law is that misrepresentation (fraudulent, careless or innocent) or non-disclosure (in the cases where a duty of full disclosure exists) makes a resulting contract liable to be set-aside, providing the misrepresentation or non-disclosure is material. The Sharland and Gohil decisions clarified that fraud now has the same effect in matrimonial proceedings as it does in the commercial world.
The Supreme Court made it clear that this rule would only not apply in circumstances where the fraud would not have influenced a reasonable person to agree to the matrimonial settlement. The burden of proving the fraud was not influential on the settlement now lies, quite properly, with the party perpetrating the fraud and not with the party seeking to set-aside the settlement agreement (the victim of the fraud).
Divorce law reform: Owens v Owens  UKSC 41
Finally some fundamental and positive law reform anticipated to benefit thousands of divorcing families, following the Supreme Court decision of Owens two years ago.
For over 20 years family lawyers had been calling for ‘no fault divorce’. 2018 saw a contested divorce case (Owens), in itself a rarity, arrive before the Supreme Court. It hit the headlines, creating a perfect storm for the cry for reform.
Mrs Owens wanted to divorce her husband of 40 years because she believed their marriage had broken down irretrievably. Mrs Owens had petitioned for divorce after leaving the family home in 2015, declaring Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens refused to agree to a divorce, which sparked a series of legal hearings in the Family Court and Court of Appeal, before ending in the Supreme Court. Mrs Owens actually lost her Supreme Court fight in July 2018 and is not able to divorce her husband until this year (2020).
Mrs Owens’ application failed as she did not meet the criteria set by legislation initially introduced in 1969. Since then social norms have changed enormously about what conduct may or may not be seen as ‘reasonable’ to put up with during a marriage. However, Mrs Owens failed to meet the legal test which was the Supreme Court’s concern.
The high profile case was a unique opportunity to raise support for divorce reform.
The Divorce, Dissolution and Separation Act 2020 has now been passed and given Royal Assent. It reforms the law so that no fault divorce will be available once the Act comes into force, currently anticipated to be Autumn 2021.