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Reflections on the state of family law

Date:5 OCT 2018
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This year has seen momentum grow towards family law reform following a series of landmark Supreme Court decisions. Until now, this has not prompted the government to change the law, with ministers instead opting to take soundings.

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The Supreme Court comprises the most specialist and experienced family law bench in living memory. The nation’s highest court is routinely adjudicating issues resulting from outdated family laws. This government has no choice but to take heed of three of the court’s most recent findings.

In May, the government was criticised in R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, [2018] All ER (D) 145 (Jun) for being discriminatory in its delay in deciding whether or not civil partnerships should be extended to heterosexual couples.

In July, Lord Wilson expressed ‘uneasy feelings’ and Lady Hale found it ‘very troubling’ that 68-year-old Tini Owens remains in a loveless unhappy marriage due to her failure to prove fault on her husband’s part (Owens v Owens [2018] UKSC 41, [2018] All ER (D) 144 (Jul)).

Finally, last month, Siobhan McLaughlin won her case that the law discriminates unfairly towards bereaved cohabitants. Non-means tested bereavement welfare benefits are being denied for the benefit of the deceased’s children, notwithstanding the deceased’s national insurance payments made during his lifetime which were in all other respects on an equal footing with those made by a deceased spouse (Re an application by Siobhan McLaughlin for Judicial Review [2018] UKSC 48, [2018] All ER (D) 144 (Aug).

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In reply to these decisions, the government is undertaking consultations or reviews with a view to reform but often without any sense of urgency. Following Steinfield, the pre-existing consultation is to be completed by the end of this year while the government has promised a review of welfare benefits law in the wake of McLaughlin.

Moving with the times

The MoJ’s consultation ‘Reducing family conflict’ running from 15 September to 10 December is most welcome in seeking views on how best to change the legal requirements for divorce to reduce family conflict and strengthen responsibility. Legislation won’t however be immediate as the response to the consultation is not due to be published until March 2019, and then there will be the process of parliamentary debate and enactment.

The government’s prior reluctance to act is especially surprising, given the number of people in the UK whose lives are detrimentally affected by family laws drafted in the last century, based on that century’s social norms.

In the 21st century, we recognise that there are numerous legitimate family types —including cohabitation. We also know that the reality of the breakdown of a marriage does not necessitate drawn-out conflict in the courts. It is time for ministers to join the judiciary in recognising the realities of life in 2018. Consultations and sympathetic statements are not enough. New laws are needed. Campaigners and the public at large understandably find it difficult to fathom why the government has delayed for so long. National family justice organisation, Resolution, has long campaigned for divorce law reform and the introduction of basic legal protections for cohabitants.

A modernised family justice system with modern laws for today’s society would help to minimise conflict and reduce acrimony for separating couples, while reducing the damage to relationships between children and their parents.

Removing outdated legal requirements would also improve the capability of out of court dispute processes to reduce reliance on the Family Court, which is already operating under severely constrained budgets.

So, if the land’s most prominent judges have now spoken and campaigners have made a compelling case for reform, why is legislation taking so long?

As we stand, the politics of Brexit and its interrelationship with the destiny of the ruling Conservative party means that very little new law is being made. It’s been a while in any event since this country had a government with a strong enough mandate to reform our domestic laws.

However, while this is a reason for the lack of action seen to date, it is not an excuse. Millions of children and families are affected and so reform must be a priority.

To remedy the situation, ministers must ensure that the soundings they are taking at the moment are genuine exercises in consultation within a reasonable timeframe to get the law right, with a commitment to reform rather than procrastination. They should then look to legislate at the earliest opportunity for no-fault divorce and increased rights for cohabitants. Reforming financial relief on divorce, however, needs longer and more careful consideration, and should be dealt with separate and subsequent to no-fault divorce. It is good news that the Reducing family conflict consultation acknowledges these concerns. This year the Supreme Court has lit beacons for no fault divorce; improving laws for cohabitants and their children; and changing our laws to better reflect modern family types such as civil partnerships.

In the overall landscape, it is probably only a matter of time before these decisions gain the legislative force that is commonplace in many other countries. Our task is to ensure that change happens sooner rather than later.

This article was first published in New Law Journal.