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.