As this will be our last blog of the year – our Yule Blog (sorry!) – we thought we’d look back over the highs and lows and themes in family law from the past twelve months. In some ways it has been a momentous year for family law, and in others we have seen a steady development of themes and practice.
So starting with a momentous moment, the Marriage (Same Sex Couples) Act came into force on 13 March giving equality in the marriage arena to all couples. As well as domestic couples, the legislation provides for English law to recognise same sex marriages validly celebrated overseas. Glitches in the legislation that prevented the conversion of civil partnerships into marriage were eventually ironed out this month, after regulations were approved by Parliament removing the need for a civil partnership to be dissolved before a marriage could be celebrated. Since 10 December, couples have been able to convert a civil partnership into a marriage and their marriage certificate will show the marriage should be treated as existing from the date of the original civil partnership.
We also saw the switch to the Single Family Court in April. This was part of the streamlining and modernising of family justice. The new court brings together the functions of the Magistrates, County and High Courts under one umbrella organisation, and now all locations of the family court can deal with all aspects of family law, with a few limited exceptions which have been reserved to the High Court (mainly to do with mentally incapacitated adults and international child related disputes).
The same month saw new legislation, the Children and Families Act, hit the statute books. This brought in new terminology: out with residence and contact and in with child arrangements orders. We also saw the introduction of the presumption that it is in the best interests of the children of separated parents to have continuing involvement of both parents in their lives. The Act also made it a requirement to attend a family Mediation, Information and Assessment Meeting (MIAM) to find out about and consider mediation before applying for certain types of court order.
Speaking of mediation, there has been growing encouragement of it, along with other forms of alternative dispute resolution from all quarters. However, take-up remains stubbornly low. So the President of the Family Division and other judges have done all they can to encourage couples to use mediation, including imposing costs penalties for unreasonable stances in relation to mediation and adjourning cases to allow for renewed attempts at settling the case through mediation. Agreements reached through arbitration, collaborative law or mediation should now be approved by the court automatically unless something is clearly awry. In addition to the judiciary, the Ministry of Justice recently announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation at a legal aid provider.
This year has seen concerted attempts from the Government and the courts to steer couples towards the quicker, cheaper, and more dignified approaches of alternative dispute resolution. Given the problems under which the family court is operating, caused in no small part by the removal of legal aid for family law, and the benefits to the family concerned of resolving separation outside the court system, we applaud this trend, but note that the removal of legal aid from family court proceedings has effectively led to many parents – and of course their children – being denied access to justice, or justice itself.
We have also seen the courts toughening up enforcing rules about the paperwork presented to them and taking a stricter approach with those who flout orders for disclosure or disobey court orders (Michael Prest’s sentence and Libor Krejci’s being just two examples this year)
So we have seen the courts getting tough on miscreants and doing all they can to keep couples away from their doors, whilst they struggle on with the ever increasing numbers of self-represented litigants. The President is leading the increasing move to make the courts as transparent as possible. We’ve also seen pre-nuptial agreements being upheld by the courts which also goes along with the general trend of courts encouraging and recognising autonomy for couples in sorting out their own financial situations.
Looking forward to 2015, the Cohabitation Bill had its second reading in the Lords recently and will proceed to committee stage next year. The Supreme Court recently heard the appeal in the case of Vince v Wyatt where the wife was seeking a large lump sum many years after divorcing her wind-farm entrepreneur husband). The result should be out early in 2015 and will make interesting reading. Later in the year, the Supreme Court will be getting its teeth into the combined appeals in Sharland and Gohill – cases where the effect of non-disclosure in financial proceedings are in issue. That will be an interesting judgment to look out for.
It’s been a special year for us at CFLP: the brilliant Tricia Ashton is now part of our team, our partners are again rated as leading East Anglian lawyers in the Legal 500, and we’re still top of the tree in the Cambridge family law rankings in the respected Chambers & Partners directory, which uses client feedback to determine how well firms are doing. We’ve got some interesting plans for next year too, so watch this space.
We hope that you all have a peaceful Christmas and New Year. Please note that we’ll be closed to give our hardworking staff a Christmas break from 5pm on Tuesday 23 December until 9am on Friday 2 January, and we’ll also be taking a break from blogging during the festivities. Other than during that period, if you would like to make an appointment to speak to Tricia, Simon, Gail, Adam or Sue, just give us a call on 01223 443333.