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Pressing for Law Reform – the key Supreme Court family law cases heard in 2018

A significant number of cases have been heard by the Supreme Court during 2018..

2018 has been a busy year for family lawyers. A significant number of cases have been heard by the Supreme Court during 2018, resulting in calls for social change.

At the start of the year, Weightmans family law team identified 2 cases, Owens v Owens and Steinfeld and Keidan, as important cases to watch.

Both have subsequently provoked a reaction in Government circles following the outcome of their Supreme Court proceedings.

Why does it take so long to reform family law?

Any attempt to reform family law provokes strong reaction – from the profession and from the public. Everyone has an opinion, simply because the issues family law deals with touch all of our lives. The diversity of opinions that are held are often strongly voiced. Governments tend to steer away from stoking the fire of controversy by avoiding debate over these issues.

A reluctance to tackle family law issues head on leaves some aspects of family law lagging behind societal changes and modern day thinking. Some issues, such as those dealt with in the Owens divorce case, serve to unnecessarily stoke familial conflict, as our analysis below shows. A lack of reform in the area of cohabitation, has resulted in many adults finding themselves financially and legally vulnerable in the event of a relationship breakdown.

A Divorce Law fit for the 21st Century

For over 20 years, family lawyers have 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 2020.

Mrs Owens’ application failed as she did not meet 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, but 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, but further action is needed to achieve real change. As Lord Wilson in the Supreme Court stated “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the circumstances”.

The only way to do this is by repealing the relevant section of the Matrimonial Causes Act 1973 – and delivering a new Act of Parliament.

On 15 September 2018, 2 months after the Supreme Court outcome, the Ministry of Justice published a consultation paper entitled: Reducing Family Conflict, reform of the legal requirements for divorce. It followed the tabling of Baroness Butler-Sloss’ private members’ bill, the Divorce (etc) Law Reform Bill, which is awaiting its second reading in the House of Lords. The bill seeks reform in the shape of a less blame-focused approach.

If the bill is implemented as drafted, the proposals would result in a greatly simplified procedure for individuals seeking a divorce, based on a time period of separation, rather than fault.

The consultation itself is progress, as many feel that the current divorce law is out of date with the times in which we live and hampers swift and cost-effective settlements. We do not know whether there will be staunch opposition to these proposals, or whether law reform comes about quickly, or at all, in the light of the results of the consultation.

Until the law is changed, family lawyers will have to continue to find constructive ways of moving cases forward despite of the law rather than with its assistance. Reform to bring the law in line with society and day to day legal practice is long overdue.

But does consultation always lead to reform?

An example of when momentum for law reform seems to have ground to a halt is the area of pre nuptial agreements.

In 2010, the Supreme Court case of Radmacher shifted the balance so that it is extremely likely that a pre nup will be upheld by a court, provided that certain safeguards are met, and unless it can be shown that doing so would be unfair to the other party.

In 2011 the Law Commission opened a consultation on pre nups, leading to a report in 2014 recommending that pre nups should be largely upheld provided that they met the needs of both parties and meet certain criteria.

Despite the recommendations, the law has yet to be amended or timetabled for discussion before Parliament.

Civil Partnerships - Reform of the law for unmarried couples?

In June 2018 a heterosexual couple won their case in the Supreme Court, arguing that the law preventing them from entering into a civil partnership was discriminatory. Rebecca Steinfeld and Charles Keidan campaigned for a legal union through that route but were prevented by the Civil Partnership Act 2004, which made only same-sex couples eligible for civil partnerships.

Mr Keidan and Ms Steinfeld successfully challenged a discriminatory law. Pressure was placed on Parliament to open up civil partnership to heterosexual couples, and on 2 October 2018, Prime Minister Theresa May announced that this would indeed happen.

At a time when Government time and resource is being overshadowed by Brexit, it is perhaps ironic that a Government doing its best to ditch EU ‘control’ over our laws is bending to indirect pressure from EU human rights law as the Supreme Court decision prompting the Government’s announcement was based on a breach of EU human rights.

Extending civil partnerships to all ends the current discrimination against heterosexual couples.

The Government says that it will provide greater security for unmarried couples and their families, which it will – but only if that couple elects to enter into a civil partnership.

It fails to address one of the most important aspects of our law – or lack of it – for the increasing number of cohabiting couples, whether heterosexual or gay, who choose not to enter into the ties of either marriage or civil partnership.

Unmarried families and relationship breakdown

In 2016, there were 3.3 million cohabiting couples or around 6.6 million cohabiting adults. This is officially the fastest growing family type, more than doubling from 1.5 million couples just 20 years ago.

Yet, a 2017 ComRes survey showed that only one couple in three knew there was no such thing as ‘common law marriage’.

If an unmarried couple breaks up, they would not necessarily be entitled to share in what they thought were joint assets, such as a house, if they aren’t named as an owner on the deeds, or in the other parties’ pensions. They are not entitled to maintenance, save for child support. This is regardless of how long they have been together or whether they have children.

Unless there are children, when the law becomes a little less restrictive, unmarried couples legal rights extend only to claims made in what can become complex property and trust law disputes, with uncertain and unpredictable outcomes.

In line with other legal jurisdictions, family law reformers say that the Government must update legislation to bring our laws in line with modern family types. In the absence of action from Government, cohabiting couples need to know that they are not given rights through ‘common law marriage’, so they can take appropriate actions to protect themselves, for example by signing a cohabitation agreement which can regulate matters on relationship breakdown, or entering into a civil partnership (see our first article in this series – link to be added).

As the number of couples living together increases year after year, more needs to be done to address the lack of financial redress for many cohabiting families on relationship breakdown or death.

Death of a cohabiting partner

Nobody enjoys thinking about their own mortality but the fact is that planning for death is the only way of ensuring that wishes are followed and that loved ones are taken care of.

Without a will, it is undoubtedly more difficult for loved ones to deal with an estate, and may leave them in a difficult financial position which could have been avoided had the deceased made a will. Carefully considered wills can also prevent disputes over the distribution of an estate following a death.

The Intestacy Rules still do not apply to cohabitees. Following the death of a partner, an unmarried partner has no automatic claim against their deceased partner’s estate unless a will has been made making provision for them. 

Cohabitees can provide financial security for their partner by preparing a will and engaging in inheritance tax planning.

Law reform needs to be considered. Not enough co-habiting couples take the necessary steps to guarantee the financial security of their partner in the event of their death.  As well as making a will, other issues including pension death benefit nominations and life insurances should also be addressed.
The Government needs to consider law reform to protect vulnerable cohabitees, not only in the event of relationship breakdown (see Part 1), but on death. The Government also needs to do much more to raise awareness of the issues.

Judicial Review of Widowed Parent’s Allowance

In August 2018, Siobhan McLaughlin’s application for Judicial Review was determined in the Supreme Court, sitting for the first time in Northern Ireland. It highlighted the issues following the death of a cohabiting partner starkly:

The Supreme Court ruled that the denial of bereavement payments to an unmarried mother is illegal in a landmark decision that is likely to have a significant impact on the rights of unmarried couples.
Siobhan McLaughlin lived with her partner for 23 years - they had four children together but never married. After her partner's death, she claimed but was denied 'Widowed Parents Allowance' which her children would have been entitled to if their parents were married.

The Supreme Court determined that this restriction unjustifiably discriminated against an unmarried surviving partner with children, and breached their human rights.
Pressure is mounting for the legislation to be amended to ensure that it captures those bereaved families who are unmarried with children. Until the law is amended, the rules remain as they are.

An amendment to the law would be a much-needed alteration to bring our law in step with modern family life.

People Power

2018 has brought about some significant shifts in Governmental thinking, but only as a result of uncomfortable headlines and a groundswell of popular opinion pressing for reform.

It has largely been the result of a small number of individuals, including Mrs Owens, Ms McLaughlin, Ms Steinfeld and Mr Keidan, feeling sufficiently strongly, and able to pursue, litigation to the Supreme Court that has provoked that response.

Law reform itself has yet to be enacted.

Fiona Turner is a Partner in Weightmans’ family law team

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