Law Commission seeks ideas for law reform

Family Law|July 18th 2016

I’m sure most people with an interest in the law would like to see the law reformed in some way or another. Well, here’s your chance to have a say: the Law Commission is asking for ideas for areas of the law that need to be reformed.

First a little background.

The Law Commission is a statutory independent body set up with three aims:

  1. To ensure that the law is as fair, modern, simple and as cost-effective as possible;
  2. To conduct research and consultations in order to make systematic recommendations for consideration by Parliament; and
  3. To codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.

The Commission is required to submit to the Lord Chancellor “programmes for the examination of different branches of the law with a view to reform”. Accordingly, every three or four years it asks for suggestions for appropriate projects to include in its next programme. Projects that go ahead will be investigated by the Commission, which will then prepare a report, usually with proposals for reform, for consideration by the government.

The Commission is now asking for suggestions to include in its 13th Programme of Law Reform. The Law Commissioners have identified some areas of law that may require reform, and which could be potential projects for the Programme. Three of these are related to family law:

Reviewing children’s social care – The provision of social care for children and families in England is governed by Part 3 of the Children Act 1989, which places responsibilities on local authorities to provide support to those who need it. The Commission asks whether the time may be right to review the operation of Part 3.

Surrogacy – The Commission says that the law on surrogacy “has struggled to adapt to changes in attitudes, a growing demand for surrogacy arrangements, and an increasing number of overseas surrogacy arrangements.” It identifies a number of issues in the law that may be in need of reform, including making parental orders in favour of a single parent.

Weddings – Providing greater choice for couples, in particular as to where a marriage can take place.

I have some ideas of my own, with two in particular coming at the top of my list (these will come as no surprise to regular readers of my posts):

No-fault divorce – The attribution of fault for marriage breakdown serves no useful purpose, and potentially makes the entire process of divorce and sorting out its consequent issues far more difficult. Making divorce harder does not make the institution of marriage stronger. On the other hand, having to attribute blame can jeopardise the chances of the parties resolving issues, particularly relating to children and finances, in an amicable fashion. This is long overdue for reform.

Property rights for cohabitants – Can it be right that a person who devotes many years of their life to looking after a home and a family can be left with nothing at the end of the relationship? No one is saying that they should have the same rights as married couples, just that there is a basic fairness (and clarity) in the law. OK, I admit that there is a slight problem with this one. It has already been done.

Law reform is, of course, all about making things better. I don’t therefore like to end on a pessimistic note, but no matter how good the Commission’s proposals for reform, there is no guarantee that the government will take up those proposals. Such was the case with the Commission’s proposals for the reform of the law relating to cohabitants’ rights. Those proposals were contained in a report published by the Commission back in 2007. Sadly, the government initially put the proposals on hold and then kicked them into the long grass, where they remain to this day. Somehow, I don’t think they will be anywhere near the top of Theresa May’s agenda…

Still, don’t be put off: if you have any ideas for projects to include in the Programme, then send them to programme@lawcommission.gsi.gov.uk, by 31 October.

Photo by James Cridland via Flickr under a Creative Commons licence

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comment(1)

  1. Andrew says:

    If they want to do something radical and admit they got it wrong last time, how about the law of intestacy?
    .
    The law of 1925 was based on a survey of what people who died testate were doing – a very good basis for writing the law of intestate succession. Unfortunately the recent changes are informed by the heresy that “needs trumps all” – so that if there is a surviving spouse and the issue of an earlier marriage or relationship in many cases the surviving spouse (“relict” as the Scots so helpfully say) will take all to the exclusion of the issue, often the children of the spouse with whom the estate was built up.
    .
    The divide should in such cases depend on the length of the second marriage; nothing for the spouse if the marriage lasted less than a year, up to the full statutory legacy if lasted more than ten years. If the marriage was short (less than five years) their should be no appropriation of the home and no duty to avoid selling it – unless, perhaps, the deceased and the second spouse bought it together.
    .
    In short, the issue should not be kept out of their fair share because of the “needs” of the second spouse.
    .
    Incidentally and for the avoidance of doubt: my views are not derived from anything which happened to me.

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