Amongst the many family law changes coming into effect after Easter, section 41 of the Matrimonial Causes Act 1973 is to be repealed. Section 41 required the court to consider in any divorce proceedings whether it should exercise any of its powers under the Children Act 1989, in regard to any arrangements which have been made, or are proposed to be made, for the upbringing and welfare of ‘relevant’ children.
‘Relevant children’ meant any children under 16 or any children under 18 who were at school or college or were training for a trade, profession or vocation.
As a consequence of this change it will no longer be necessary, where there are any such children, to file a statement of arrangements for children form with every divorce petition.
The statement of arrangements form has been around for my entire career as a family lawyer, and for some years before I began practising. Originally, it was quite simple but over the years, like everything, it became more complex, requiring more and more information about the children. It seems rather ironic that now the court can manage without any of that information at all, but I suppose that is progress.
The information contained in the form included all sorts of details about the arrangements for any relevant children. These included where and with whom the children were living, any contact arrangements agreed with the other parent, what schools they go to, details of their health and details of any court proceedings relating to them. If the respondent agreed with the arrangements set out in the form, they could sign the form to confirm this.
As mentioned above, the statement had to be filed with the court by the petitioner, along with their divorce petition. A copy would then be served upon the respondent, who could state in their acknowledgement form whether they agreed with the contents of the statement (if they didn’t agree, the respondent could file a statement of their own).
When the petitioner applied for the divorce to proceed, the court would have to consider whether there were any relevant children and, if so, whether it should exercise any of its powers under the Children Act, having regard to the arrangements set out in the form. If the court was not satisfied with the arrangements for the children it could prevent the divorce from being finalised until satisfactory arrangements had been made. However, this was rare, and in most cases dealing with section 41 was little more than a box-ticking exercise.
And I presume that that is really the reason why section 41 has been done away with – to free-up court time for more important things. It is also, of course, an acknowledgement that in most cases the parents can be trusted to make satisfactory arrangements for their children.
So, what will happen in the future?
Well, if there is no dispute between the parents as to the arrangements for their children, then nothing will happen. The court will not be involved and the divorce will proceed with no consideration as to the arrangements.
On the other hand, if there is a dispute between the parents about this topic, then one or both of them can make an application for an order under the Children Act. That order will most likely be one of the new child arrangements orders, that I discussed in this post.
There we have it. Section 41 and the statement of arrangements form – something else that will pass into history on the 22nd of April.
Photo by DaveCrosby via Flickr under a Creative Commons licence