The government will be introducing measures to allow court-based legal advisers to process uncontested divorce applications, rather than requiring a judge to consider each and every one. This is intended to have the effect of freeing up judges’ time (we suspect they will need it, to deal with the influx of self-represented litigants flooding the courts when legal aid is removed next April); it will also finally convert divorce into a purely administrative process (and if you’re interested in the history of how it got to this point, have a look at our previous post here). In our view this is an entirely sensible development, although as we’ve said before we’d quite like the government to go a little bit further and move to a system where everyone can obtain a divorce or civil partnership dissolution without having to make allegations of fault.

Unsurprisingly, despite all the noise made by David Cameron about same-sex marriage a couple of months ago, there will be nothing in the next Parliament to progress those aspirations. It’s true that the consultation doesn’t close until the middle of June (find it here), but it’s clear that the whole area has slipped down the priority list, possibly due to pressure from the right of the party. Cabinet minister Phil Hammond said on Sunday that rather than focusing on gay marriage, the government has to concentrate instead on “things that matter”. What an unfortunate turn of phrase that is for those of us who believe in equality! We will wait with slightly subdued interest to see the results of the consultation and the government’s subsequent response.

Back to the Bill: in disputes between parents about children where there are no significant concerns requiring the local authority to intervene (what we call “private law”), the government will be making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings. At present, the requirement on a prospective court applicant to attend such a meeting to investigate the use of mediation is not universally enforced by court staff or judges. The government clearly considers that it needs to strengthen the requirement and make it statutory to give it more force. It is also part of their drive to put mediation at the heart of the family justice system and make mediators the gatekeepers for it, something that has been met by near-universal trepidation among the mediation profession.

Most interestingly, the government has confirmed that it intends “to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child’s best interests.” It believes that this change will encourage separated parents to sort things out without involving the courts, and to make agreements “that fully involve both parents” (see the Department for Education’s press release).

We have noted practitioners’ concerns about a change of terminology previously. In our view, the law already supports involving both parents in the care of the child as a best option wherever it is safe to do so, and this is the approach already taken by the courts and by mediators. The paramount principle that guides the court, when making a decision about the future arrangements for children, is what is in the best interests of that particular child or those children. Some consider that any principle inserted into the Children Act requiring there to be a presumption of anything will dilute the paramouncy principle, create expectations on the part of separated parents that are not wholly compatible with children’s needs, and make it more difficult for those who have serious concerns about another parent’s safe parenting to establish a case for restricting their contact with the children. Others believe that a reinforcement of a two-parent principle for children will redress what they consider to be a post-separation gender bias about the care of children, or simply make explicit a principle which is already ingrained in the law.

The Government clearly understands that there are reservations. Indeed, David Norgrove was not himself in favour of this change in his report on Family Justice which the government commissioned. It has announced its intention to consult shortly about how the legislation can be framed to ensure that a meaningful relationship is not about an equal division of time but the quality of time that a child spends with each parent. We wish them luck with untangling this, which seems like a game of second-guessing how parents in the midst of emotional turmoil will be persuaded that what the law seems to imply does not actually mean that after all, even though they changed the law specifically to imply it.

For regular readers, it is unlikely to have escaped your attention that the introduction of this Bill is likely to coincide with the removal of legal aid in private family cases, meaning that it is likely to be up to mediators as the first line of defence for the courts in the new system to tell newly separated parents that the law does not mean what they think it means, without actually being able to give them any legal advice, and then to suggest that they negotiate from that position. A perfect storm indeed.

We’ll let you have details of the consultation when it is announced, so you can have your say. In the meantime, you could always tell us what you think.

For those who aren’t aware, collaborative family law is a different way of working towards family solutions when adult relationships break down. It involves a series of “round table” meetings where both parties and their respective solicitors meet in the same room to investigate finding a fair way forward in the family’s particular unique circumstances. Financial, property and children matters can be approached holistically, and third (or rather, fifth) parties can be brought in to assist where necessary with financial advice, valuations or parenting matters. The key difference with negotiations in the shadow of the court is that in collaborative law, both clients and their solicitors sign an agreement at the beginning of the process which commits them to keeping the discussions confidential – enabling everyone to put their cards on the table in the interests of finding a fair solution – and to settling the dispute without going to court. If the collaborative process is not successful, the parties must instruct new lawyers to litigate the outstanding issues, meaning that there is huge buy-in from the collaborative lawyers towards making the process work, as they do not want to lose a client. You can find more detailed information about collaborative law as we do it at CFLP here.

Cambridge was one of the first places in England to take up the ideas of the collaborative law movement from its origins in the USA, and CFLP lawyers were some of the first to use its principles. We’re some of the most experienced collaborative practitioners around, but even we are finding collaborative law difficult to make attractive to clients in these tricky economic times. We sense that this is partly the time involved in collaborative law: it is quite a time commitment to attend a series of half-day conferences, and when employment or business circumstances are precarious and childcare is expensive, this may not be a commitment everyone can make. There may also be a cost issue: although collaborative law is generally much less expensive than a contested court case about financial matters, the cost of each meeting can seem like a large amount because of the solicitor’s time involved. However, because solicitors’ correspondence is kept to a minimum and there are no court costs, fees are much more certain and predictable in collaborative law. Decisions about how to cover the costs of the process tend to be made together at an early stage so there are no surprises later. In terms of time, some people find that collaborative law makes it easier to compartmentalise their divorce and stop it from infiltrating their thoughts each day, as they know when meetings are going to be and can prepare for them when they wish, without the fear of too many letters arriving on the doormat in between: collaborative law works for people who would prefer to deal with things in chunks of time, rather than little-by-little over a period of weeks or months.

As many relationships are coming under huge pressure because of money worries, we are seeing more high-conflict clients and wonder if the idea of a non-adversarial process may be less attractive to those who feel they need a lawyer “in their corner”. It’s a tricky concept to explain, but being non-positional doesn’t mean that the lawyer is not “on your side”, it simply works in a different way when everyone is pushing as a team to find the solution that best fulfills everyone’s needs. Collaborative lawyers are trained in balancing power and creating a level playing field, meaning clients feel less exposed than they might otherwise. It is true that collaborative law requires give and take on both sides, and the idea of compromise can be a difficult one to come to terms with when the end of a relationship brings with it so much fear. The idea of a court case where there is a “winner” and a “loser” is comfortingly familiar, so it can understandably take a lot to open frightened minds to the opportunities of a different approach, even where the creativity that collaborative working makes possible can lead to a more flexible, suitable outcome than the strict constraints of the court process.

We’ve written before about how useful we think collaborative law can be in cases where there is a family business, but collaborative law offers the chance for better solutions for a wide range of people, even where the two clients involved are finding it difficult to communicate without anger. Trained and experienced collaborative practitioners like those at CFLP are used to and unafraid of conflict, and know how to work with prevailing circumstances to encourage clients to reach solutions that will enable them to face the future with dignity, and without fear of what tomorrow will bring. Most importantly, children facing change in their family unit can benefit massively from the improved communication that usually comes from working collaboratively, in ways that clients rarely expect at the beginning of the process. We still strongly believe in collaborative law in the right circumstances. Give us a call if you’d like to know more – you could also have a look at the Cambridge Collaborative Family Law Group site.

Sir Paul Coleridge is the man with the plan. He has been a High Court Judge for 12 years now and previously practised as a barrister in the field of family law. In his interview with the Today programme on 30 April 2012, he claimed that nobody has more experience of the effects that family breakdown is having on society than family law judges. Other family law judges clearly feel the same: the list of those publicly supporting the project is full of members of the judiciary, together with other high-profile participants in the law reform and family justice arena. There is a call for further supporters to make themselves known to the team by contacting Sir Paul on his own Marriage Foundation email address, highlighting the “stand up and be counted” vibe about the website. There’s also a “donate” button next to the “sign up for news” button, in case you feel sufficiently allied to the cause to open your wallet.

The Marriage Foundation’s fundamental purpose is to promote support for marriage, make the public case for marriage, and educate people – particularly the young and the poor, it seems – about marriage as the best structure within which to live a life. The reason for doing so, it says, is because marriage leads to better outcomes for everybody – the foundation is building a resource library that will go on to the website when it is done to shore up its reasoning on the matter. In the meantime, the case is put as follows:

“Governments cannot legislate stronger relationships into existence. Ultimately, more and stronger marriages will be a product of our individual choices, behaviour and culture. The Marriage Foundation will seek to influence the way we think about those choices, as individuals, couples and as a society.

“Our case for marriage is based on pragmatic evaluation of the advantages for children, families, and the local and national community. The richness and diversity of relationships precludes simplistic claims of cause and effect, but there is a significant difference in outcomes and the distinctive features of marriage are an important part of the reason.”

The upshot is, according to the Foundation, that marriage makes people wealthier, healthier, happier, and provides a better start for children. There are economic arguments for marriage based on the costs occasioned to the family justice system, and wider society, from single-parent or cohabiting families as opposed to those from married people; there are notes about people “sliding into parental responsibilities” without making a decision to commit to each other, and statistics about the breakdown of cohabitations. The Marriage Foundation puts these observations forward as a compelling case for promoting marriage, and it is clear that many people agree.

Sir Paul Coleridge’s foundation denies that it is simply trying to turn back the clock; people still want to get married, it says, perhaps not quite getting the point of the question. Some people might think that the site reads like it was written in another world, by a member of a generation far removed from those struggling with the pressures of family life in today’s society. It is difficult to avoid the sense that the project’s overall aim – “marriage as the golden standard” – is harking back to a different time.

This is one of the problems we see with the Marriage Foundation: the sense that encouraging couples to bond together with an outward sign of their commitment and a properly constituted legal relationship will tackle the root cause factors of family breakdown which really affect children’s life chances – unemployment, lack of education, poverty, addiction, and abuse. Making it harder to get out of relationships cannot surely mean that bad relationships are made better, or that unhappy people are made happier and wealthier and healthier? There is also a feminist question: does making marriage a “golden standard” threaten the economic, educational and societal progress that women have made in recent years? It is surely a short step from promoting marriage as the best way to bring up children, to promoting a particular type of marriage where one party (usually, but not always, mummy) stays at home with the children, as we already see from time to time in some sectors of the media, with its attendant emotional impact on parents trying to juggle childrearing with economic subsistence.

We at CFLP are committed to helping people find the least painful way through their family breakdown, and do not judge people on their choice of family structure (if indeed it can always be considered a choice). It seems surprising for such a significant number of judges, who are traditionally independent, impartial and apolitical, to be taking such a value-laden stance which certainly has political overtones – see our earlier post on the government’s marriage agenda. Further to that, there must be a risk that the list of supporters, overwhelmingly white, late-middle-aged, and middle-to-upper class, makes it look like an edict from the ruling classes to do as they, overwhelmingly, do.

The lack of any mention of civil partnerships seems odd, but the issue is obliquely nodded-to in the FAQs when the subject of marriage for gay couples is mentioned. The Marriage Foundation, it says, has children’s interests at its heart, and “for obvious reasons those children are almost entirely located within heterosexual partnerships”. Court-watchers will be surprised to hear this, as the incidence of court cases where the parents are same-sex has been rising rapidly in recent years; but perhaps the Marriage Foundation’s resources do not extend to these children, or they – perhaps – do not think the stability of the partnerships involved is a relevant issue for these children. The general failure to acknowledge that not everyone, and not every child, conforms to a narrow sector of society that has access to marriage, a willing partner, funds to do it and the balance of resources to make it work until death they do part, does not assist their argument that the promotion of marriage will make a difference to children’s life chances in the future.

To be clear: we at CFLP are all in favour of improving children’s life chances and better allocation of resources in the family justice system, as our previous posts refer. We’re just not sure that this is the best way to achieve those ends. What do you think?

PS you can send The Marriage Foundation 50 words to let them know what you think! Just click here.

Progress in reforming family justice has been slow and a long time coming. We are at a critical point now where the justice system is outdated, overloaded and fraught with delays that are clearly detrimental to the families and children it is tasked with serving and protecting. The government asked David Norgrove, an economist and former civil servant, to undertake a wholesale review of the system and make recommendations for reform. The government response followed, and accepted most of the recommendations made with one particularly controversial exception which we come to below. The judiciary’s response will be published on 31 July.

Mr Justice Ryder set out the timetable for the next fifteen months in the family justice system, which will culminate in the introduction of a new single Family Court in July 2013. Currently there are three tiers of court where family proceedings can be commenced, depending on their complexity: the family proceedings court, heard by magistrates, the county court in which district and circuit judges sit, and the Family Division of the High Court which takes the most difficult and high-profile cases. From July next year, all family cases will be started in the same place and it will be up to the court, rather than the applicant, to make the decision about which tribunal hears the case. This administrative system will be put in place by April 2013 with new legislation.

In cases where the dispute is between the parents or other relatives of children after family breakdown (what we call “private children law”), or is financial and arising from a family separation, divorce or civil partnership dissolution, clients will have to access the family justice system through a new internet and/or telephone ‘hub’ that will refer most cases to a mediator in the first instance. This means that mediators will be on the absolute frontline of the new private family justice arrangements, and there are proposals that they should effectively act as case managers for the system. It is fair to say that mediators are unsure whether they are best suited to take on these new responsibilities, and that there is a lack of sufficiently qualified and experienced mediators who can take up the baton, should they be amenable to doing so. CAFCASS – the Children and Family Court Advisory and Support Service – raised the concern that child protection issues might be missed if more cases are dealt with outside the court framework.

The Norgrove Review was primarily motivated by concerns that the system was failing vulnerable children because of excessive delays in the courts’ care system, and so discussions about the process for taking children into local authority care did take precedence on the day. The government’s aim is to arrange for all children to be placed within 26 weeks of the local authority making an application to the court, but the judges were clear that this was not a judicial timetable but a political edict. Judicial timetables will continue to be dictated by the judges after considering the paramouncy of the children’s best interests. That said, everyone shares the desire to speed up the process, and to that aim Mr Justice Ryder will be encouraging a less expansive approach to obtaining expert evidence in care proceedings where there might instead be a greater reliance on general research findings, and more inquisitorial involvement of the judge (or magistrates) in each case. Training will be given to ensure that those leading the system are confident in making the more proactive decisions they will need to make. As the judge said, “this is the end of the old way of doing things”.

Also at the forefront of practitioners’ thoughts at the moment are the changes being pushed through parliament in the Legal Aid and Sentencing and Punishment of Offenders Bill. As discussed previously, this will see the imminent removal of legal aid from the majority of family proceedings where children are not at risk of harm. Jo Miles of Cambridge University presented a compelling case against these changes, highlighting areas where the proposed changes are especially ill-thought out and could damage children’s prospects. The lack of a coherent system to address the impact of a likely massive increase in self-represented litigants without access to any legal guidance in the family courts is a worry for us all, and Jo Miles got the loudest applause of the day for her exposé.

The panel referred to the one exception to the government’s general agreement with David Norgrove: the government wants to see the introduction of some kind of presumption of shared parenting after family breakdown, despite the fact that this was examined in detail by the Report before being dismissed. David Norgrove and his advisers looked at the experiences of other jurisdictions that have introduced such a presumption and found that it has caused more problems in court because of misunderstandings about what shared parenting means; there is no research to support its introduction here. We will have to wait and see what happens on this – practitioners’ views are polarised, with many feeling that there should be a rebuttable presumption that both parents should remain involved in a child’s life, while others feel that any presumption takes away from the primacy of the child’s best interests. The fact that the government is removing the terms “residence” and “contact” and replacing them with a “child arrangements order” is causing concern in the same context.

The general upshot of the conference was that, on the whole, the law is not changing but the framework surrounding it may be a different shape in fifteen months’ time. Our reaction at CFLP is that the new single Family Court may well be an improvement in the long term, but the big issue for us is the removal of legal aid and the likely increase in self-represented parties in court, which in turn will lead to increased delays in private cases. In the wider system, there are concerns about the adequacy of judicial and magistrate training to handle the new-style inquisitorial system, and the lack of experienced mediators at triage stage. There was an overwhelming sense of the political pressure under which family law judges now operate, and it was clear that this is highly contentious. It feels like a volatile time for family law: there are clearly a few powder kegs ready to blow. The question is what – or who – will strike the match.

Way back in the days of yore, when the church was more powerful than the monarch, marriage was a church institution and so divorce was also the preserve of the church. Marriage was for life and divorce exceedingly rare, although the church would occasionally grant a divorce “a mensa et thoro” which enabled people to live apart if there had been significant cruelty, but not to remarry. (Henry VIII, of course, did whatever he wanted.) In the eighteenth and early nineteenth century, it was possible to get a divorce granted by Act of Parliament, but such an option was only open to the rich. The Matrimonial Causes Act 1857 was the first divorce law of general application.

The 1857 Act introduced divorce through the court. Men were able to “petition the court” for a divorce on the basis of their wife’s adultery, which would have to be proved, as would the absence of any collusion or condonation of that adultery. Women who wanted to divorce their husbands needed also to prove an aggravating factor of the adultery, such as rape or incest. The High Court in London was the only place to get your divorce, and proceedings were held in open court, enabling society to be scandalised by the personal details revealed during the process.

The huge social changes in England during and following the First World War, particularly for the role of women in society, led to divorce law reform as it did to reforms in other areas. The Matrimonial Causes Act 1923 put men and women on an equal footing for the first time, enabling either spouse to petition the court for a divorce on the basis of their spouse’s adultery. The requirement to prove the deed and the absence of collusion remained, as did the procedural requirements. In 1937 another Matrimonial Causes Act introduced three more options for unhappy spouses to take to court, and so it became possible to divorce on the grounds of cruelty, desertion and incurable insanity as well as adultery. These were termed “matrimonial offences”. As before, each allegation needed to be proved by the petitioner’s oral evidence. At this stage, parliament also introduced a bar to divorcing in the first three years of marriage.

The Second World War brought about another period of great social change, and a start to the modern era of life as we know it now. Marriages broke down under the strain of war, or its after-effects, in numbers never before experienced and at all levels of society. The church and the government became increasingly concerned that the divorce laws were no longer fit for purpose – unhappy couples would arrange for one spouse to book into a hotel at the seaside for a weekend to commit the adultery necessary for them to divorce. A Royal Commission in the 1950s could not decide the best way forward, and in the mid-1960’s the Archbishop of Canterbury took up the baton. His office prepared a report demanding reform of the law to ensure that people could obtain a divorce if they could show the breakdown of their marriage, and the government set the Law Commission to research the most appropriate way to modernise the divorce laws. This process gestated the Divorce Reform Act 1969, which although now consolidated in the Matrimonial Causes Act 1973 still contains the divorce law we are subject to today.

Like a great deal of social policy legislation, the Divorce Reform Act 1969 was a compromise. It enabled either party to seek a divorce on the basis of the irretrievable breakdown of the marriage, as the Archbishop wanted in the 1960s, but requires that the breakdown be proved by evidence of one of five “facts”: adultery, behaviour, desertion, or separation for 2 years and the other party’s consent to a divorce or separation for five years. You can see that although this Act removed the concept of a matrimonial offence, the old 1937 grounds of cruelty (now termed “unreasonable behaviour”) and desertion in essence remained. However, the big advance in 1969 was that there is no “fault” as such involved in petitions based on 2 or 5 years’ separation. Procedurally there were also changes: it was possible for the first time to get a divorce through the local county court rather than coming to the High Court in London. During the 1970s, courts developed the “special procedure” of divorce-on-paper that still represents the way things are done in the vast majority of divorces.

There are two more quirks of history to note: the first is that it was not until 1984 that the bar on divorcing before 3 years of marriage had elapsed was reduced to 1 year. The second is that major attempts were made in the mid-90s to enact the “no-fault divorce” for which practitioners are now again clamouring. In fact, the Family Law Act 1996 did exactly that: the procedure was that anyone wanting to get a divorce would have to attend an Information Meeting investigating the possibility of reconciliation and discussing mediation if that was not possible. If he or she (or they) still wanted to divorce, a statement of marital breakdown had to be made to court, not less than 3 months after attending the information meeting. No more than 14 days after the filing of the statement, a period of reflection and consideration would commence – this would last 9 months if the couple had no children under 16, or 15 months if they did. After that, the court could finalise the divorce.

Although other parts of the Family Law Act 1996 have been brought into force, the divorce provisions never were and have recently been repealed. The Lord Chancellor’s Department (as it then was) cited a failure of the information meetings as the reason, but the fact was that the Bill suffered so many amendments and compromises to ensure its passage through a Conservative parliament, many of whose members still considered it an attack on the sanctity of marriage and family life, that it was not fit for purpose at the end of the process. The difficult governmental experience with this Bill may be one of the reasons why successive governments since have not been willing to attempt to reform the divorce laws – the current government certainly shows no enthusiasm, although they are all for increasing access to marriage (see previous post here).

As a final historical post-script, it is important to note that the Civil Partnership Act 2004 not only afforded same-sex couples the right to register their civil partnerships, but also to dissolve them. Civil partnership dissolution is available on effectively the same terms as divorce, save that a petition on the basis of adultery is not available due to problems applying the accepted legal definition of the act to same-sex couples. There is something rather jarring about the fact that same-sex couples won their generations-long fight to be afforded the opportunity to have their relationships officially recognised by the state, only to find themselves subjected to effectively the same archaic framework for exit that has existed for nearly a hundred years!

As you can see, divorce law in England in 2012 is mainly a mish-mash of laws from 1923, 1937, and 1969, with recent policy made predominantly by the lawyers and high churchmen of the 1960s. Our adversarial court system, into which divorce was placed in the nineteenth century, still requires one party to obtain a divorce against the other by “petitioning the court” as it did in 1857, even if the divorce is requested on the basis of living apart from each other for two years and with the agreement of both parties. Matrimonial offences may have been removed in name, but the only way of divorcing quickly is still to allege that one spouse has been at fault.

We at CFLP feel that the anachronistic divorce laws of this country encourage allegations to be made by one spouse against the other that increase acrimony and distress for the whole family. This sets people up for a fight. If a marriage has broken down irretrievably and both parties agree that this is the case, to them wait two years to obtain a divorce is nothing more than delay for delay’s sake. As the Archbishop observed in the 1960s, the divorce laws should not be used to keep people in bad marriages against their will. It is time for the law of this country to treat people who have decided that their marriage is over with respect and compassion, in the knowledge that it is not a decision reached lightly and without consideration of the effect on any children. We believe that it is time for a streamlined process without the need for allegations or recriminations, that enables people to move on with dignity and focus on their separate futures without the confines imposed by the laws of yesteryear.

We’d be interested to know whether you agree!

The Parent Connection is a website run by One Plus One, the UK’s leading relationship research organisation. It contains information to support people in making the transition from being partners to being co-parents. There is a focus on learning constructive communication skills and on planning for co-parenting in the long-term. These are elements that we as mediators work hard on with parents, to help them resolve the issues between them about the children.

There is plenty of information to help parents understand what their children might be thinking and feeling, and the site also looks at practical steps that parents can take to help children through the situation. The videos it includes are rather powerful, and might be particularly helpful for people who are struggling to assess how older children are reacting to new family circumstances or make sense of their own complicated feelings.

There is a forum available where people can get support from others with experience of their situations, and share stories. The site says that the forum is moderated by mediators who ensure that the tone of discussion remains constructive and positive. The site also provides a “listening room” instant-chat service which is open on Saturdays at 4pm and Mondays and Thursdays at 8pm. This provides access to someone with a counselling background, which can be useful as a first port of call for people who perhaps are not quite at the stage where they feel able to seek counselling but want to investigate more about it.

For those who are going through difficulties in their relationship but who have not made a decision to divorce, The Parent Connection has a helpful sister site, The Couple Connection. This site focuses on adult relationships: how to deal with change, commitment, disagreements or problems, and how to strengthen your connection to avoid problems in the future. It also carries information and insights on dealing with specific challenges to a relationship, for example if one partner has an affair, or if there are major recurring problems arising from housework or money. Again there are forums for discussion and a listening room, which is available every evening.

These resources are free and carry plenty of useful information and ideas, whatever the status of your relationship.  Why not take a look and see if they inspire you to do anything differently?

When it comes to separating out peoples’ money and property after their relationship has broken down, a number of different things have to be taken into account: most important of these things is usually what each family member needs, and first consideration is always for the wellbeing of any children of the family. Other factors include what resources each person has available, including their ability to earn, and their ages, state of health, etc: you can see a full list and explanation on our ‘financial orders: principles’ factsheet here. The length of the marriage is set down in the law as a factor that the law considers important. The aim of the law is to make a fair division of whatever financial resources are available.

Lawyers look at two main sources of law to give you advice on what kind of division of money and property would be fair in your case. There is statute law, which is made by parliament (for divorcing couples, this is the Matrimonial Causes Act 1973), and case law, which is made by senior judges when they are interpreting parliament’s intention in making the law and applying this to the individual cases – people’s lives – that come before them. Case law shows consistently that the longer the marriage, the more chance there is that the economically weaker party will, where circumstances allow, be given a settlement that enables them to be financially secure for the rest of their lives. The division of assets in a long marriage is more likely to be equal, or close to it, whether or not the wealth has all come from one side.

So what makes a long marriage? Case law is not certain. 20 years ago a long marriage might have been considered to start at 20 years’ duration; now it may be a relationship as short as 10-15 years depending on circumstances. However, the most important thing to understand is that a “long marriage” can be just a couple of years, even down to a matter of months. This is because the courts consider pre-marital cohabitation, if it is “seamless” in its transition to marriage, to be sufficient evidence of the requisite commitment to be considered part of the marriage period. So in many circumstances and particularly for younger couples who are more likely to cohabit, the relevant question that your lawyer will wish to know the answer to is not “when did you get married?” but rather, “when did you move in together?”.

When civil partnerships were first introduced in law in 2004, there was much discussion about how the courts would treat civil partners’ financial division on dissolution. Inevitably, among the first couples to register civil partnerships were many couples to whom formalising a relationship in the eyes of the law had previously been impossible, but who had lived together for decades. Would the court amalgamate the periods of cohabitation and civil partnership to catapault them straight into “long marriage” territory? The answer we expected was “yes”, and it came definitively last week from the Court of Appeal when it considered the first financial appeal on a civil partnership dissolution in the case of Lawrence v Gallagher (see here for the judgment). There was no fuss about it, despite the fact that the couple involved had lived together for only a short time after their civil partnership was registered. Their many years of living together before registering their civil partnership meant that they were treated by the court just like any other couple who had been married for a long time.

The moral of the story is this: a short marriage/civil partnership is not a short marriage/civil partnership if you lived together before marriage/civil partnership for a long time; and living together before marriage/civil partnership can have legal consequences further down the line if you do decide to marry/register a civil partnership later.

I first went to Bratislava at the invitation of the Slovaks last year, after some of their family lawyers saw me present at a conference in Brno in the Czech Republic. I’ve been a member of the Czech Mediation Board for a couple of years now and have very much enjoyed the work I have done with them to make mediation more effective as part of the family law system there. At that conference I was introducing the concept of collaborative law. The Slovakian lawyers there felt that it could be a useful addition to their processes so invited me to come and tell them a bit more about it.

Family law in Slovakia is a developing area. The country is still struggling to shake off the cultural handcuffs of the communist era, and it is difficult for family lawyers to make a living there because people are unwilling to pay much for advice about family matters. Fees for family work are remarkably low by western standards. The profession is dominated by longstanding practitioners and family law tends to have a litigious character. However, things are changing and I noticed this time that there were more young people in my audience who are starting to make their way in the field of family law.

Mediation is entrenched in Slovakia, and the rules indicate that when you are in mediation you should go to a notary and register it so that your court proceedings can automatically be stayed for up to three years to let the mediation take its course. This procedure is not universally adhered to, and often people go straight to mediation without notarising it so that court proceedings are not delayed if things don’t get resolved. The family courts in Slovakia are public, and collaborative practice offers people the opportunity of privacy to resolve their dispute, as it does here. This is another reason why collaborative law appeals to Slovakian family lawyers. They particularly see it as a useful tool to employ where there are middle or high-value assets to divide on divorce, and the parties may need more legal support to decide how to do it.

My role last week was to present an introduction to collaborative law . This year I was involved in Part 2 of the 3-part course. The enthusiasm of the Slovakian lawyers is palpable and it was an engaging and stimulating environment to train in. I am glad also to have been asked to assist with writing the collaborative law training course for Slovakian lawyers, which will be specifically tailored to Slovakian culture and the legal system there so that it is easy to implement and responds adequately to client needs. I have also been involved in putting together a joint application from the Czech and Slovakian lawyer groups for a grant from the EU to support the introduction of collaborative law into these countries. In contrast to what you might assume, the Czechs and the Slovaks work together well – one might say it is a good collaborative example!

To contact William Hogg, email williamhogg@cflp.co.uk or telephone 01223 443332.

Currently the only option available to same-sex couples who wish to formalise their relationships in legal terms is to enter into a civil partnership. It’s pretty much the same as marriage in all but name, but the government now realises that name is important and says,

“We recognise that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage. We do not think that the ban on same-sex couples getting married should continue. Put simply, it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.”

Hear, hear. The consultation will not, however, be making any recommendations on the availability of religious services for the marriage of same-sex couples, nor will it be considering whether opposite-sex couples should be able to enter into a civil partnership should they so prefer. Interestingly, having made its position clear, the government still goes on to ask questions on these matters – see below at numbers 5 and 8. (Presumably, these questions are there to enable people to have a rant rather than for any more constructive purpose?)

The government obviously understands that marriage as a concept is hugely important to society as a whole, but it is also a divisive issue. Some gay couples want to get married; some are not bothered, and some actively do not want to wear that label. Exactly the same goes for heterosexual couples, many of whom feel that marriage is inappropriate in some way for their situation, and would much prefer to have access to civil partnerships to better reflect who they are. Many couples, whatever their sexual orientation, have no wish legally to regulate their partnerships. The other difficult factor in the consultation is the religious aspect: discrimination by religious bodies about who they will marry will not only be tolerated but legally required as these organisations will not be able to conduct same-sex marriages even if they want to. They will, however, still be able to host civil partnership registrations (this has been the case since 5 December 2011).

We wonder if the government’s focus on marriage may be an attempt to distract from other areas of family law and policy that urgently need a 21st century facelift. Take, for example, the government’s failure to implement the recommendations of the Law Commission for legal consequences on the breakdown of cohabiting relationships. With marriage at a historically low ebb, how relevant is the proposed change in the law to those from Generation Y who tend to cohabit and have their children without the comparative security of a statutory framework for sorting things out if they go wrong, whatever gender partner they choose? The terminology of stable, loving, legally regulated partnerships should obviously be consistent across all sexual and gender orientation, but there is an argument that it isn’t the big issue in family policy. The lack of safeguards for cohabiting couples, for those who find themselves economically disadvantaged by the failure of a non-married or non-civilly partnered relationship, causes poverty and can harm children’s life chances. See here for more on the Resolution campaign for protection for unmarried couples – they suffer from family breakdown too, but you don’t see them in the official statistics so easily.

Also, there is the problem of how the law requires that you get a divorce, should your marriage break down. Archaically, it is still necessary to prove that one spouse has been at fault before it is possible to get a divorce without a 2-year hiatus, and this poisonous state of affairs has naturally been carried through to affect the dissolution of civil partnerships too. Again, the government does not feel able to tackle this issue, which we know well can do huge damage to couples who wish to separate their affairs with a minimum of animosity. Why is it necessary in this day and age to prove that one party has done wrong before the law will accept your contention that your marriage has irretrievably broken down? The political will, it seems, is pro-marriage for everyone, but certainly not currently pro-dignified divorce for anyone.

Then there are the government’s proposals to remove legal aid for almost all family proceedings which we’ve discussed before, see here, and plans to charge for using the child support agency to get child maintenance, to name but two more things we wish the government would do differently in the field of the law as it applies to families.

The government says there is a practical advantage in the proposals for a specific sector of the community: removing the bar on same-sex couples being married will enable for the first time, one partner to change their legal gender without having to formally end their marriage. Equally, couples who are currently in a civil partnership would be able to convert their partnership into a marriage, rather than formally dissolving their civil partnership. We applaud this, and the government’s general desire to enshrine equality regardless of sexual orientation. However, the other issues will not go away – or be obscured by the smokescreen of ‘marriage for everyone!’ – and we would like to see them back on the political agenda sooner rather than later.

The questions are below. Please do get involved: it’s possible that your views could still shape policy. Here’s that link to the consultation again. We’ve told you what we really think – what about you?

Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to have a civil marriage ceremony?

Question 2: Please explain the reasons for your answer. Please respond within 1,225 characters (approx. 200 words).

Question 3: If you identify as being lesbian, gay, bisexual or transsexual would you wish to have a civil marriage ceremony?

Question 4: If you represent a group of individuals who identify as being lesbian, gay, bisexual or transsexual would those you represent wish to have a civil marriage ceremony?

Question 5: The Government does not propose to open up religious marriage to same-sex couples. Do you agree or disagree with this proposal?

Question 6: Do you agree or disagree with keeping the option of civil partnerships once civil marriage is available to same-sex couples?

Question 7: If you identify as being lesbian, gay or bisexual and were considering making a legal commitment to your partner would you prefer to have a civil partnership or a civil marriage?

Question 8: The Government is not considering opening up civil partnerships to opposite-sex couples. Do you agree or disagree with this proposal?

Question 9: If you are in a civil partnership would you wish to take advantage of this policy and convert your civil partnership into a marriage?

Question 10: Do you agree or disagree that there should be a time limit on the ability to convert a civil partnership into a marriage?

Question 11: Do you agree or disagree that there should be the choice to have a civil ceremony on conversion of a civil partnership into a marriage?

Question 12: If you are a married transsexual person would you want to take advantage of this policy and remain in your marriage while obtaining a full Gender Recognition Certificate?

Question 13: If you are the spouse of a transsexual person, would you want to take advantage of this policy and remain in your marriage whilst your spouse obtained a full Gender Recognition Certificate?

Question 14. Do you have any comments on the assumptions or issues outlined in this chapter on consequential impacts? Please respond within 1,225 characters (approx 200 words).

Question 15: Are you aware of any costs or benefits that exist to either the public or private sector, or individuals that we have not accounted for in the impact assessment? Please respond within 1,225 characters (approx 200 words).

Question 16: Do you have any other comments on the proposals within this consultation? Please respond within 1,225 characters (approx 200 words).

In 1969, Elisabeth Kubler-Ross wrote an important book called ‘On Death and Dying’ which explained how in conversation with people facing terminal illness she had identified 5 stages of loss. The results of her research have come to be known as “the Loss Cycle”, and at CFLP we find that it sometimes helps our clients to understand a bit about what happens to the mind when it is dealing with a major life change.

The first stage of loss tends to be denial, a sense of “I can’t believe it” which may be bound up with feelings of acute shock. People sometimes just carry on as normal, not showing signs of taking on board that things have changed. Often, people get very practical in the wake of separating from a partner and can busy themselves endlessly with errands and tasks to put off having to deal with the end of the relationship.

The next stage is frequently anger or rage, when people are starting to come out of denial and realise that they have to deal with the situation. A shift from denial to anger is often precipitated by an external event – a gentle challenge from a friend, perhaps, or the requirement to make a decision that will lead to major change. A lot of this anger is born out of fear of the future, and fury about a perceived lack of control or unfairness. Many people in this stage after a separation feel intense envy of other people’s seemingly ‘perfect’ lives and relationships.

The third stage tends to be bargaining, and often involves coming up with a “solution” that will change the way things are. This is a proactive stage where there may be peaks of hope followed by troughs of disillusionment when the hope transpires to be unfounded. It may involve bargaining with a higher power to be a better person if the relationship can be restored; or it can be more direct bargaining with the other party to the relationship to change so that things can go back to the way they were. It may be a particularly traumatic phase because of its erratic character.

Then comes depression. This is where the reality of the relationship breakdown really starts to sink in and there may be a sense of hopelessness and a lack of interest in whatever the future might hold. The person suffering may become silent and show few signs of enjoying company. This is where the analogy between those going through relationship breakdown and those dealing with the death of a loved one is closest, as grief itself is felt in both situations. It may be a dreadful, dark time, but psychologists usually believe it an essential prerequisite for moving forward. Particularly at this stage of the cycle, which may last longer than the preceding ones, it can be useful to seek help from a counsellor.

Finally, people move towards acceptance and realise that there is a different future ahead, and they can start to cope with it. It’s about coming to terms with what has happened and controlling the fear of change, which will come whether we like it or not.

It’s important to understand that the Loss Cycle is not always linear. Some people experience its phases like being a car on the track of a rollercoaster, the momentum carrying them forward; for others, the phases can be jumbled up and or people can jump around between them. Some people get stuck in a particular phase, and we often see this when people are going through financial court proceedings at the end of a relationship. It can be difficult to move forward when there is no certainty about what lies ahead.

Children experience the loss cycle too. We must remember that they are likely to grieve for their intact family even if they still have good contact with both parents and both parents are able to support them.

Another important facet of the application of the Loss Cycle to relationship breakdown is how important it is to understand that different people can be at different stages in the same divorce. We often see this clearly when we assist couples together in mediation or collaborative law, and have noticed that it can be especially difficult for two people to communicate constructively when one is still angry, or in depression, and the other has moved to acceptance.

We at CFLP believe that it takes a fair amount of life experience to be a good relationship breakdown lawyer. Because CFLP is an all-partner firm with over 80 years’ experience of family law between the five partners, you can be sure your journey through divorce will always be handled sensitively and professionally, and with a real understanding that the process you’re going through is more than just a legal one.