The forecast for Family Law in 2024

Mediation week

The year starts off with the launch of the Family Mediation week from 22 to 26 January 2024. Throughout the week there will be various online events promoting the use of family mediation to members of the public and other professionals working with separated families.

Extending transparency in the family courts

In 2023, the Family Reporting Pilot (FRP) allowed accredited media representatives and legal bloggers to report on family cases in the courts in Leeds, Cardiff and Carlisle. Applying initially to public law children proceedings, the pilot was extended in May 2023 to allow reporting in private law children disputes provided anonymity and confidentiality of the parties was maintained.

From 29 January 2024, the pilot will be extended further to include all financial remedy proceedings on divorce and proceedings for financial provision for children, (Schedule 1, Children Act 1989 (CA 1989)), and financial relief after an overseas divorce, (Part III, Matrimonial and Family Proceedings Act 1984). It will include all hearings, except Financial Dispute Resolution hearings, in Birmingham, Leeds and the Central Family Court in London. It will, however, be open to the judge to depart from the guidance if the circumstances of the case justify such a departure.

The pilot will run for 12 months and is likely to be extended to include cases at High Court level from 4 November 2024.

In addition, all financial remedy cases when listed will now include the names of all parties in all financial remedy courts.

As before, the default position will be that reporters will be permitted to report about the proceedings and have access to the Case Summary (ES1) and Position Statements provided the anonymity and confidentiality of the parties are maintained. Whether that anonymity should be retained within financial remedy judgments is still to be determined by the Court of Appeal.

Alternatives to court

As the family courts continue to struggle under the weight of applications there is likely to be an even greater push in 2024 towards resolving family disputes out of court.

The first of those measures will be seen in the revision of the Mediation Information and Assessment Meeting (MIAM) scheme which will come into force on 29 April 2024. Certain exemptions for attending a MIAM will be removed or modified, and where a MIAM does take place providers must explain the potential benefits of mediation and provide greater information about other non-court dispute resolution processes.

The Family Mediation Voucher Scheme will also continue throughout 2024, although whether that is replaced with permanent funding is likely to depend upon the outcome of the next government election anticipated later this year.

The current government has, however, been consulting on reasonable ways in which to make mediation mandatory, and the role of cost orders as a means of moving private family law disputes away from the court. The outcome of that consultation is expected to be published later this year.

Financial remedies on divorce

i) Law Commission review

In April 2023 the Law Commission announced its intention to carry out a detailed review of the current laws that determine how finances are divided between couples after divorce and whether reform in England and Wales is needed.

The review follows the 50th anniversary of the Matrimonial Causes Act 1973 and the variations in interpretation of the Act by the courts in the intervening years when determining a couples’ financial claims.

The Law Commission will examine whether the laws are working effectively and delivering fair and consistent outcomes for divorcing couples, and what the options for reform might look like.

The review aims to be completed by September 2024 and it will be interesting to see if and how this significant area of law could be re-shaped.

ii) Fast-track procedure

Plans to introduce a pilot fast-track procedure for small money financial remedy cases have now been approved. The pilot, which aims to operate within specified regions later this year, will apply to all cases where the net assets are less than £250,000. The intention will be to conclude these cases within six months of proceedings being issued.

The cases will be front loaded with the expectation that Financial Statements, (Form E), valuations, mortgage capacity reports, questionnaires, replies and settlement proposals will all be provided before the first hearing which will be treated as a Financial Dispute Resolution appointment.

iii) Part III cases, (financial relief following a divorce that has taken place overseas)

It is anticipated that the Supreme Court will give judgment this year in the case of Potanina v Potanin, giving clarity to the court’s approach on the process and requirements for the grant/set aside of permission to apply for a financial remedy following an overseas divorce.

The headline case concerns a couple who married in Russia in 1983 and lived there throughout their married life before divorcing in 2014. During that time, the husband amassed a fortune estimated at $20 billion. Upon divorce, the wife unsuccessfully sought half of the husband’s beneficial interest in those assets following extensive litigation in Russia, the USA and Cyprus.

In 2019, after the wife’s move to England, she applied to the English court for financial relief under Part III of the Matrimonial and Family Proceedings Act 1973. The High Court initially granted the wife permission to bring her claims at a ‘without notice’ hearing, but subsequently allowed the husband’s application to set that aside on the basis that the court had been misled. The Court of Appeal, however, overturned that decision in favour of the wife prompting the husband’s appeal to the Supreme Court which is currently awaited.

iv) ‘Matrimonialisation’ of assets

The Court of Appeal is currently considering the case of Standish v Standish where the High Court awarded a split of 34% to the wife and 66% to the husband of the parties’ assets which included Moundsmere mansion in Hampshire, reported to be worth £11 million.

The appeal by the wife and cross appeal by the husband centre around when and if assets become ‘matrimonialised’ and what would be the basis for departing from an equal division of those assets.

vi) Pension Advisory Group report

The Pension Advisory Group published its guide to the treatment of pensions on divorce in July 2019. Intended as the go-to-guide to judges and practitioners for all things pensions on divorce, the Group has over the course of the last 12 months been working on updating the report.

The 2nd edition of the Pension Advisory Group report has been published in January 2024, incorporating the latest case law developments as well as changes to terminology and the effects of Brexit and use of the Galbraith tables.

Children law

i) Parental Responsibility

Proposed amendments to the Victims and Prisoners Bill anticipated later this year is likely to lead to the automatic suspension of Parental Responsibility (PR) for parents who are convicted of the murder or manslaughter of the other parent. The suspension of PR will apply on sentencing.

ii) Guidance on responding to allegations of alienating behaviour

Following an increase in references to alienating behaviour within children disputes, the Family Justice Council launched a consultation in 2023 with a view to providing a best practice guide to how those allegations should be dealt in the family justice system. The guidance was expected in Autumn 2023 but is now likely to be published later this year.

iii) The Child Arrangements Programme

In 2018, the president of the Family Division commented that an unprecedented number of children law disputes were being brought before the court and that the court was not always the best place for parents to resolve those disputes. Since that date, work has been ongoing on how best to reform the Child Arrangement Programme in a way that is safety-focused, trauma-aware and takes a more investigative, problem-solving approach.

A pilot scheme was launched in specified courts in Dorset and North Wales adopting, amongst other things, a more investigative approach to proceedings, with earlier gatekeeping and triage decisions with a view to reducing hearings and ensuring that the voice of the child is more clearly heard.

Although the pilot is due to end on 21 February 2024 it is likely to be extended into the following year with further courts being added to the scheme.

iv) Integrated Domestic Abuse Court pilots

It is intended that an Integrated Domestic Abuse Court (IDAC) will consider family and criminal matters in parallel, with the aim of providing more consistent support for victims. The IDAC pilots will explore a "one family, one judge" approach where concurrent family and criminal proceedings involving domestic abuse are dealt with by a suitably trained judge. The approach aims to reduce the need for victims to re-tell their stories and promote a more joined-up approach to the handling of such cases between different jurisdictions.

v) Review of presumption of parental involvement

In 2020 the government confirmed its intention to review the presumption of parental involvement as set out within the Children Act 1989. As part of that review process a number of ‘pathfinder’ courts were tasked with trialling a "safety pathway" that prioritises safety over any presumption of contact or ongoing parental involvement.

The recommendations from this pilot study had been due to be released in 2023 but are now expected to be published later this year, detailing whether the presumption of parental involvement is to be retained in all cases.