The President of the Supreme Court: the case for much needed family law reform

At the recent National Resolution conference, Weightmans’ family team had the pleasure of listening to Lady Hale, President of the Supreme Court,…

At the recent National Resolution conference, Weightmans’ family team had the pleasure of listening to Lady Hale, President of the Supreme Court, deliver her eagerly anticipated keynote speech.  She addressed a 5 point plan for reform advanced by the Times’ Family Matters campaign, acknowledging the need for change within family law and stated such reforms should be welcomed as they would strengthen family responsibilities.

No fault divorce

The Times campaign in November 2017 set out 5 points for change including the much talked about topic of ‘no fault divorce’. In her speech Lady Hale supported the need for no fault divorce and stated that “Ireland was fortunate that it had no fault divorce ever since it had divorce” and that the current English law “exacerbates family conflict entirely unnecessarily”.

She went onto discuss Scottish law which has a simpler, less acrimonious, divorce procedure by allowing for one year separation with both parties’ consent and two years without. As such very few Scottish petitions are issued on behavior or adultery.

Whilst The anticipated case of Owens v Owens is being heard before the Supreme Court in the coming term, Lady Hale stated changes to the law fell to Parliament. It is not for the Supreme Court to propose law reform but rather to “interpret the law that Parliament has given us”. She of course did not discuss this case any further.

Civil Partnerships

The Times campaign proposed change to laws relating to civil partnership and the rights of heterosexual couples. The upcoming Supreme Court case of Stenfield and Keidan v Secretary of State for Education considers the issue of extending civil partnerships to opposite sex couples.

At the Court of Appeal it was noted that there was to some extent a violation of the appellants’ human rights, however they held that this was currently justified by the Secretary of State’s policy of ‘wait and evaluate’ Whilst stating that she had “rather hoped” that Parliament would resolve this argument for them, Lady Hale went on to question the extension of civil partnerships, “shouldn’t we actually welcome couples who want to enter into a legal commitment to one another, whatever it is?” she asked. Lady Hale and the Supreme Court now have the task of deciding whether the current restrictions on civil partnerships are compatible with the European Convention of Human Rights.

Maintenance claims

Referring to the commonly used term ’meal ticket for life’ Lady Hale conveyed that this was “patronising” and that sometimes it was vital to allow long term spousal maintenance, to give parties an equal footing into independent living. She spoke about research which has “clearly shown that a person who gives up work, even for a few years, in order to concentrate on child care or other family responsibilities will never make up what they have lost”.

She explored the idea of introducing a further factor for consideration within the s25 factors, currently used by the courts when dealing with financial remedy matters, mirroring section 20(2)(g) of the Family Law (Divorce) Act 2006 in Ireland. This requires the court to take into account the effect and impact on earning capacity which may be impaired as a result of giving up work to care for the home and children. This idea goes to the heart of the recent High Court decision in Waggott v Waggott and may go someway in restoring equality for the stay at home spouse who loses out on building up his/her own earning capacity and who, as per Waggott, cannot claim that earning capacity is product of the marriage to which the sharing principle should apply.

Mills v Mills, due to be heard at the Supreme Court shortly, further explores the notion of maintenance and the concept of ‘meal ticket for life’. It is to be seen how the matter is resolved when it comes before Lady Hale and the Supreme Court.

Unmarried couples – reform of the law for cohabitants

Further mention of Scottish laws came in relation to remedies for unmarried couples. It was put to us by Lady Hale that whilst Scottish law recognised that a cohabitation partnership was not the same as marriage, it had bought about remedies and compensation for economic disadvantage/gain which had come about as a result of the relationship.

A change within the law, consistent with Scottish law, is surely something to consider.

Pre Nuptial Agreements

Lady Hale mentioned that these always provided for a “recipient spouse to receive less than he or she could otherwise expect, so as to preserve more for the better -off spouse”.

She expressed the need to formalise such agreements, stating that we are currently in the “worst of all worlds” as we are without the necessary safeguards but in a place where theoretically pre-nuptial agreements can be relied upon by the courts.

For recent observations by Weightmans’ Family Law Team on pre nuptial agreements, see:

Pre and post-nuptial agreements – the trends identified

Prenuptial agreements: Royal and International

Summary – a one stop shop?

Lady Hale’s keynote speech concluded with a proposal for a “one stop shop” for all family matters.

She advocated the idea of having a single application for all family matters including divorce, children and financial remedy, where the “separating party could file one form telling one story and asking for whichever relief they wanted”.

We believe that such an idea would be positively received by the legal profession, going some way in making family law more accessible for separating parties; allowing for an all round quicker and more efficient process.

Lady Hale’s speech, together with the Times Family Matters campaign, promote the need for reform within family law, something which Resolution (www. Resolution.org.uk) and family lawyers have been lobbying for, for many years.

Will the ideas identified by Lady Hale’s speech bring about much needed change or will they fall upon deaf ears within Parliament?

As Lady Hale clearly stated “what the current law is and what it ought to be are quite separate matters”.

It is hoped that such a push from the President of the Supreme Court, will prompt Parliament to consider that now really is a time for change.

Meera Shinh is a Solicitor in the Family Law Team
Meera.shinh@weightmans.com

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