Transparency
Transparency has been a hot topic over the last few years and will continue to be at the front of the agenda as we move into 2024. Following on from the report of the Financial Remedies Court sub-group of the Transparency Implementation Group [“TIG”], the President of the Family Division has announced a transparency reporting pilot scheme. The scheme will commence on the 29 January 2024 in the Central Family Court, Birmingham and Leeds. The Scheme will run for 12 months and will allow accredited journalists and bloggers to report on:-
- Financial remedies on divorce;
- Schedule 1 cases (financial support for children); and
- Part III cases (financial relief following a divorce that has taken place overseas.
All cause lists within the three named courts will now name the parties and state that the hearing is for financial remedies. Financial Dispute Resolution hearings will remain confidential and reporters will not be permitted to attend those hearings. Where a reporter attends court, the judge must consider making a standard Transparency Order which provides that a reporter can report on the case subject to restrictions in the order which are designed to protect confidentiality and anonymity. The standard Transparency Order provides that a reporter should be provided with copies of the parties’ respective position statements and ES1. It is open to the judge to depart from the guidance if the circumstances of the case justify such a departure. The new guidance can be read by following this link.
Part III
On 31 October and 1 November 2023 the Supreme Court heard the case of Potanina v Potanin. The parties were married and divorced in Russia where the wife received a financial award. She subsequently moved to England and applied to the English Court for financial relief under Part III of the Matrimonial and Family Proceedings Act 1973 and was granted permission to bring claims here. The husband successfully appealed against that decision but the Court of Appeal overturned his appeal. The husband appealed against the Court of Appeal ruling and the Supreme Court’s decision is awaited. The decision is likely to be significant in clarifying the court’s approach on the process and substance for the grant/ set aside of permission to apply for financial relief pursuant to Part III of the Matrimonial and Family Proceedings Act 1973.
Matrimonialisation of assets
In the case of Standish v Standish the first instance judge made an award which gave 34% of the assets to the wife and 66% to the husband. The wife appealed that decision and the Court of Appeal is expected to give judgment soon. The case centres around the issue of: (i) when and if assets become “matrimonialised”; and (ii) once an asset is found to be matrimonial what are the bases for departing from the usual position that it should be divided equally.
Resolution
Resolution, the organisation for family lawyers, has recently announced their “Vision for Family Justice.” The recommendations put forward focus upon steps that could be taken to improve the needs of modern family structures. The report can be viewed here. On Resolutions agenda for change are (in brief):-
- Recognising the changing face of families – this includes seeking reform on the law around cohabiting couples, the legislative framework of Schedule 1 (to provide support for the children of unmarried parents) and recognising all kinds of families;
- Helping families to find solutions – by supplying more public funding for early legal advice and information, providing co-parenting programmes and giving people options to broader advice on ways to settle disputes without reference to the courts;
- Protecting the vulnerable – in particular, supporting and protecting victims of domestic abuse;
- Ensuring that the Family Courts meet the needs of families – the court estate should not be permitted to shrink further and online services should be available where appropriate. Smaller financial remedy cases should be fast tracked.
- Making family law fit for purpose – looking at (a) child arrangements on divorce; (b) improving public children law; (c) reforming financial remedies law and (d) looking at the international position – continuing to press the EU to allow the UK to accede to the Lugano Convention to enable reciprocal enforcement in Europe.
This is an important piece of work that will be considered and debated in 2024.
Law Commission review on Financial Remedies
The Law Commission announced a review of financial remedies law back in April 2023. The proposed review will examine the current system under the Matrimonial Causes Act 1973 and will consider whether that 50 year old Act still works in modern times. In the intervening years the Courts have interpreted the statute through case law but there can be wide variations in how judges approach cases. The review aims to be completed by September 2024 and it will be interesting to see what recommendations arise from it.
Nuptial Agreements
As long ago as 2014 the Law Commission reported on introducing “qualifying nuptial agreements” which would be legally binding provided that certain safeguards were met. There has been little progress in the intervening decade. Indeed, the issue of nuptial agreements has been put behind the Law Commission’s current assessment on reform of the law governing finances on divorce (see above). However, the Law Commission is to produce a scoping paper with a targeted deadline of September 2024 which will include consideration of whether there is the need for further work on nuptial agreements. Given the glacial pace of reform there are unlikely to be any substantive developments in 2024.
Economic uncertainty
The rising interest rates and extreme inflation seen in 2022 and 2023 have caused increased pressure on family finances and have made it more difficult for some families to divorce. In times when the cost of living has been so high, it has been hard for families to contemplate funding two separate households following a separation. Whilst these pressures presently remain, they are likely to ease during the latter part of 2024, which may lead to an increase in parties formalising their separations.
Alternatives to Court
A continuing emphasis on guiding parties to seek to resolve their affairs outside of the justice system is likely to continue. At the end of 2023 we have seen the (non-family) case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 which has made it clear that it is possible for a Court to insist that the parties explore mediation. In the family arena there is likely to be an even greater push on directing the parties to non-court based dispute resolution methods. The current MIAM scheme has become something of a box ticking exercise but changes that come into force on 29 April 2024 will remove some of the potential exemptions and MIAM providers will have to provide a greater degree of information about alternatives to going to court.
Children
In private children work a significant development is likely to be the proposed amendment to the Victims and Prisoners Bill to automatically suspend parental responsibility for parents who are convicted of the murder or manslaughter of the other parent.
Surrogacy
A report published in March 2023 by the Law Commission has set out recommendations for the reform of surrogacy law in the UK. At the heart of the proposals is the aim to enable the intended parents to become the child’s legal parents at birth. Presently, the intended parents have to wait until they have received a parental order which can mean waiting several months before they are
