Lady Hale gives her thoughts on family law reform

Family Law|April 26th 2018

I had been waiting for the speech given by Lady Hale, the President of the Supreme Court, to the Manchester Family Law Conference in March to be published. Now, in a way, it has, as by her own admission the speech she gave at the weekend to the Resolution conference, now published on the Supreme Court website, is essentially the same. The theme of the speech was future reforms of private family law. She looks at five proposed reforms.

The first of the reforms she considers is the introduction of no-fault divorce. She does not put forward any new ideas, but merely goes through the recent history of proposed or attempted reform, beginning with her own Law Commission report in 1990. She does make a tantalising mention of the Owens appeal, due before the Supreme Court next month, but quite rightly says that it is for Parliament, not the Supreme Court, to change the law.

The second reform she mentions is extending civil partnerships to opposite-sex couples, another issue shortly to be considered by the Supreme Court. Interestingly, she says:

“It is all very puzzling. Why do people have conscientious objections to marriage these days, when its patriarchal features have virtually disappeared from the law? It is a perfectly serviceable method of giving legal status, rights and responsibilities to couples.”

She then looks at possible solutions to the problem of same-sex and opposite-sex couples having different rights, and points out that this can be solved in two ways: not just by extending civil partnerships to opposite-sex couples, but also by abolishing civil partnerships altogether. Personally, I have no particular preference one way or the other.

The third reform she considers is the introduction of financial remedies for unmarried couples (or, perhaps more accurately, ‘cohabiting couples’). Clearly in favour, she says: “there should be compensation for economic disadvantage suffered by one, or economic advantage gained by the other, as a result of the relationship.” She says that, like no-fault divorce and civil partnerships for opposite-sex couples, “these proposals are clearly about strengthening family responsibility – giving something akin to restitutionary remedies to those who suffer as a result of unmarried cohabitation.”

On the other hand, she says: “The other two proposals … are, at least on their face, pulling in the opposite direction – reducing the family responsibilities undertaken on marriage.”

The first of these proposals is marital agreements, i.e. giving pre- and post-nuptial contracts the “backing and force of statute”. Lady Hale rightly says that it is arguable that the present position of such agreements in this country gives us the worst of all worlds, with the parties not being able to easily predict whether an agreement they enter into will be upheld, or even taken into account, by the divorce court. However, as she points out, efforts at reform, as also suggested by the Law Commission, have once again stalled.

The last proposal is to end “the outdated and patronising ‘meal ticket for life’ (the term I discussed here on Monday) that can result from present laws on splitting assets and awarding maintenance after divorce, except where hardship would be caused”. In other words, spousal maintenance should only be for a short period, to allow the recipient spouse time to regain their financial independence, except in cases of grave hardship. Lady Hale set out her position on the subject:

“My own view is that the goal of divorce settlements should be … ‘to give each party an equal start on the road to independent living’. But that equal start is bound to involve, for most couples, an element of compensation for the disadvantage, often the permanent disadvantage, resulting from the choices made by both parties during the marriage. Sometimes, but not always, the only way to do this is by open-ended periodical payments. To refer to this as a ‘meal ticket for life’ is indeed patronising and demeaning, but making an award for those reasons is not.”

She wondered whether an answer might be to add to the factors that the court has to consider when deciding a financial remedies claim one used in Ireland, which requires the court “to take into account ‘the effect on the earning capacity of each of the spouses of marital responsibilities assumed by each during the period when they lived with one another and in particular the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family’.”

In conclusion, Lady Hale said (if I read it correctly) that she agreed with the proposals for no-fault divorce, civil partnerships for opposite-sex couples and remedies for unmarried couples, but only marital agreements “on Law Commission terms”. As to the ‘meal ticket for life’, she “would probably refer [this] to the Law Commission for a much more in-depth study than they have yet done.” Otherwise, she has a proposal of her own: “to introduce a one stop shop in family cases – where instead of having to navigate possibly five different processes, a separating party could file one form telling one story and asking for whichever relief they wanted at the time – and preferably available on-line.” Those five possible processes are: (i) applications for short term arrangements about the matrimonial home or domestic abuse; (ii) the divorce petition; (iii) financial remedies proceedings; (iv) proceedings about the arrangements for the children; and (v) child support ‘proceedings’. I agree entirely – that these matters are dealt with separately is completely absurd.

Resolution described the speech as “amazing”. I wouldn’t quite put it in those terms (although I did not of course have the advantage of hearing the speech delivered), but it certainly contained some interesting thoughts, if not that many new ideas.

You can read the full speech here.

Image by marcos fernandez via Flickr

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.

Comments(6)

  1. Spike Robinson says:

    Unless the ability to opt out via a pre-nup is enacted with statutory force, and proof against revision by the courts except in the most egregious cases, these proposals are pure fascism. I don’t use the term lightly. The majority of the proposals are of a piece with Lady Hale’s concern with the rights of women and same sex couples and her complete oblivious disregard for the rights of fathers or their children. She proposes to extend a single mandatory model of marriage which leaves nowhere to hide except immigration or celibacy, for any person – male or female, straight or gay, who disagrees with her personal vision. She also proposes to finalise the destruction of family life by further locking in the sanctions against partners of a stay at home mother or dad. The model of two working parents with equal incomes is to be enforced by even greater penalties on the higher earning parent. Suffer the children. But as ever Lady Hale has never a thought for the children, only for the “poor women”, who she imagines only ever as the victim, never as the aggressor, despite a lifetime of Family Court experience. Clearly her blindness is willful, rather than just from ignorance.

    It is entirely unsurprising that she makes no mention of the gross problems harming children, fathers and non resident parents under the current system. She is either blind or oblivious or simply does not care: she is a life long partisan who sees her mission as being the destruction of “patriarchal” Family Law. She appears to announce “mission accomplished”. Her legacy is the most gender-biased Family system in the developed world, as the epidemic of foreign couples jurisdiction-shopping in the UK amply proves.

  2. spinner says:

    “It is all very puzzling.” – When you have people like this who are clearly by their own admission unable to even start to comprehend what the problem actually is, their solutions as presented here will only compound the problem.
    People are living longer and consequently having multiple marriages or long term relationships in their lives. They don’t want to collect life long responsibilities along the way to each and every ex partner they may have lived with or been married to decades before, this is too much and the figures for marriage are evidence of that and if forced marriage is implemented then fewer people will cohabit.

  3. rum says:

    so what is you co habit. You are starting a family and you give up your higher paid, secure career. You are the stay at home mum . But your partner controls the purse strings. He reeps all the benefits and even has a great big pension hidden that you knew nothing about . You struggle , you fall into a deep pit of depression. You hope things will change . You have already given your home and equity to the relationship. You pay the bills and more than the mortgage costs. But hey 14 years and then you split. You never got round to marrying. Although that was what you thought was always going to happen as that is what was planned. You have 14 years of life , and then you are left with nothing . You don’t get offered a career as you are too old. You have lost all of your assets. You have trusted somebody that turned out to be nothing but a Jekyl and Hyde. Further more you tied to ensuring the children are happy and so you should be. After all his only priority is to make sure he has every luxury on the planet and as many cars as his barn can fit. So when they are adults , you dont even get a golden watch . Not that this is what you want . But hey a small part of the house would be just . Justice, given what you bought to the relationship. But you are not religious and you had other things that just side tracked walking down the aisle. You trusted him, he was the love of your life . Look into the future and see yourself packing your bags , with no chance of a mortgage and no chance of any secure housing. Yes us poor women, we really get biased views from Supreme court don’t we!
    The unmarried laws need to change . Not to give free meal tickets , not because we think women should be equal, because that will never happen in this male dominated country. We deserve to not be thrown in the gutter because of this law. I have anxiety attacks. I lose sleep, but i am a good mother and my children are excelling in everything they do. How about at least being able to return to being a home owner once again. Something that i was in my 20’s but the love of my life stole it all away. It is biased to women who never had a ring. 14 years of my life i gave to have now to face being homeless in 4-6 years. THAT IS NO JUSTICE .

    • spinner says:

      No they don’t need to change. In the scenario you present what needed to happen is before they decided to have children whereby one of them then freely decided to give up their career, they should of got married.

  4. Seriously 007 says:

    To put it plainly : such propositions will leave fewer children with more than resident parent. The reason fewer wish to marry is the high cost emotionally and financially to divorce. If the same rights of marriage are extended to co habiting couples then even less will co habit , more kids will only have a single parent, less adults , especially men will wish to take on someone else’s kids . The children of this country suffer and the generational cycle of bad parenting and dysfunctional families continues. No wonder why mental health problems , especially in the young in this country are hugely increasing.
    If you are considering a family in this country , then don’t, leave and live in a country where family life is important in society.

  5. JamesB says:

    It is entirely unsurprising that she makes no mention of the gross problems harming children, fathers and non resident parents under the current system. I agree with Spike.

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