By Sarah Cornes
Reform is currently the buzz word in family law, and has been proposed, debated and urged upon Parliament in the areas of fault based divorce; cohabitation and also the presumption of shared parenting. But with government focus necessarily being on Brexit, the prospect of reforms have receded, although the social imperative remains.
Surprisingly, perhaps, divorce rate, which is currently 42% (Source: www.ons.gov.uk), is similar to that in the mid 1970s, from when the current Matrimonial Causes Act dates, and lower than its peak in the 1980s and 1990s. This is largely because there are fewer marriages, per head of the population, with more couples choosing to cohabit. 21% of families with dependent children are now unmarried. Whatever form the modern family takes, however, the UK has, unfortunately, the highest rate of family instability in the developed world.
The volume and range of litigation coming before the higher Family Courts highlights the need for new legislative framework. The role of the Courts should be to update and refine the law by decided cases (precedents), but it cannot fulfil the role of Parliament in adapting legislation to rapidly changing social times.
A recent report by the Nuffield Foundation highlighted that there is already a divorce by consent or "on demand" but which has to be dressed up to fit the legal requirement that there should be evidence of adultery or unreasonable behaviour, if not two years’ separation. Indeed, it is often said that the legal "bar" for unreasonable behaviour is set so low that generally it can be found on both sides of most marriages from time to time!
Sir James Munby, President of the Family Division, has called for reforms as a means of introducing "intellectual honesty" to the situation and to absolve the District Judges from "the ritual of considering whether the anaemic allegations contained in the petition drafted…do or do not amount to unreasonable behaviour". There is also support for abolishing the requirement for two years’ separation.
Arguably, such reform would not necessarily weaken the institution of marriage if combined with support for couples in times of difficulties. Research by the Marriage Foundation shows that unhappy couples who stay together are as likely to be happy ten years later as those who separate.
Lack of clarity, and judicial consistency, on the thorny issue of life-time spousal maintenance obligations has led to unnecessary, and often costly, variation and maintenance applications. Thankfully, greater certainty (and some relief for payers) was provided by the Court of Appeal in April 2018 in its decision in the case of Waggott v Waggott.
Family law should be reflective of social values and realities, and not lag behind by decades.
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