John Bolch on the reform of family law (Part 2)

Family Law|May 22nd 2014

Continuing my survey of recent family law reforms from my last post I’ll turn now to what is, after arrangements for children, perhaps the most contentious area of private family law: sorting out financial/property settlements on divorce. Here, there really hasn’t been an awful lot of change to the substantive law over the last forty years, despite the subject being given a nice new name recently (the term ‘financial remedies’ replacing ‘ancillary relief’) – although the procedure has changed considerably. Perhaps the biggest change to the law was the introduction in, I believe, 1999, of pension orders, which enabled the courts for the first time to make orders splitting pension assets between spouses. Otherwise, there has been some tinkering to the law on financial remedies, such as the obligation, introduced in 1984, for courts to consider whether or not a ‘clean break’ was appropriate. Apart from this, I do not recall much else in the way of change.

The area of family law that has received the most attention in recent times must surely be child support/maintenance. The Child Support Act 1991 took away from the courts the power (in most cases) to make child maintenance orders. Like all reform, the child support scheme was supposed to make things better, but it failed so spectacularly that it has since been the subject of seemingly continuous amendment and reform, the latest being the introduction recently of yet another new scheme, whereby parents are encouraged to agree child maintenance arrangements between themselves. If they fail to do so, they will have to pay for the Child Maintenance Service to sort things out for them.

Moving on, I shall draw this survey to a swift conclusion with a very brief look at other areas of family law.

Despite a Law Commission recommendation and many other calls for reform, there has been no change in the law relating to cohabitation breakdown, apart from some case-law such as Stack v Dowden and Jones v Kernott, which I am not considering here.

The law on domestic violence received a make-over from Part 4 of the Family Law Act 1996, which widened the range of people who could apply for domestic violence injunctions and introduced us to ‘occupation orders’.

Last, but by no means least, civil partnerships were introduced by the Civil Partnership Act 2004. Meanwhile, same-sex marriage was brought in by the Marriage (Same Sex Couples) Act 2013 – the latter probably being the biggest actual family law change of recent times.

What lessons can we draw from this quick survey of recent developments in family law? Well, the overriding impression that I get is just how piecemeal the process of reform has been. We’ve had a bit of divorce law here, some children law there and a bit on financial remedies there. But in practice each area of family law is rarely dealt with in a vacuum – someone going though divorce, for example, will utilise divorce law, probably children law, the law on finances and possibly the law on domestic violence as well.

Occasionally we’ve had a whole ‘subject area’ looked at comprehensively, such as with the Children Act 1989, but at no time has there been any real consideration of comprehensive reform. The usual scenario has been for one small area to be identified for reform, without any wider thought. Apart from anything else, this has made it extremely difficult to keep up with just what the present law is – something of increased importance in these days of so many litigants in person. The old ‘consolidating acts’ are a thing of the past, and even looking at the legislation.gov.uk website will not necessarily result in you finding legislation that has been fully updated.

And this process of piecemeal reform is still going on – take, for example, the Law Commission’s recent project where it looked at matrimonial property, needs and agreements, but did not consider reform of other areas relating to finances on divorce.

I know that real (as against procedural) comprehensive reform is expensive, but family law is not like other areas of law that can be discretely compartmentalised. Surely, the only way that we will truly get a system that is better than before is if, rather than piecemeal reform or playing with procedure, we looked at the system as a whole?

Photo of barristers’ wigs by ASC Shakespeare Camp 2013 via Flickr under a Creative Commons licence

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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