“It’s going to be an important week for family law in England and Wales this week.”
Graham Coy, Partner at the London Stowe Family Law office, starts the week with his thoughts on two landmark cases at the Supreme Court and reflects on Baroness Deech’s proposed Bill.
“Today, Rebecca Steinfeld and her partner, Charles Keidan will argue that a Civil Partnership should be available to heterosexual couples along with same-sex.
Having suffered defeat at the Court of Appeal in February last year, they are now taking this fight to the UK’s highest court.
Rebecca and Charles do not want to get married, meaning along with 3.2 million other same-sex cohabiting couples they have practically no legal rights if their relationship comes to an end.
Neither can they enter into a Civil Partnership which would give them the same rights as married opposite-sex couples and same-sex if the relationship broke down.
But is this a breach of their human rights? Today, the Supreme Court will listen to their case and announce their decision later this year.
In the meantime, the uptake in registered Civil Partnerships has declined after the introduction of same-sex marriage; dropping from 6,305 in 2007 to just 890 in 2016. This has prompted the Equalities Office to begin a consultation on the future of civil partnerships. Whatever the outcome civil partnerships will change.
Locked-in a marriage
Secondly, on Thursday Mrs Tini Owens will try to persuade The Supreme Court that previous judges have been wrong in refusing to allow her to divorce her husband on the basis that he has behaved unreasonably.
Now a locked-in wife, she cannot get divorced unless her husband changes his mind and agrees or she waits five years.
This leaves the court to decide what the law means when one party in a marriage is said to have behaved unreasonably. What is reasonable behaviour and what is unreasonable?
One size does not fit all
Last week we saw another attempt by Baroness Deech to radically reform the way in which financial matters are dealt with when a marriage or civil partnership breaks down.
The Bill, given its first Reading last Friday in the House of Lords, calls for maintenance to be limited to a fixed period of five years. This apparently will make mediation easier, reduce legal costs and recognize that a marriage is a partnership of equals.
The term ‘meal ticket for life’ has been banded around a lot in the coverage of this story but there is no ‘meal ticket for life’. In 1984, the law was amended to ask Judges to consider when maintenance should end. There is no reform required.
For me, a strict cut off is unfair. There is no ‘one size fits all’. Every family is different, every case is different. This is the real world that as family lawyers, we see every day of our working lives.
Change always comes with consequences. In this case, the weaker financial party will seek more of the capital up-front and /or a greater share of the pension.
What we need is far greater consistency between judges and greater clarity from them as to how the current law should be interpreted and applied.
Of course, there are those high-profile cases where legal costs get out of proportion but they are few and far between and do not justify such a sweeping level of reform.
And I do not believe that mediation will be more widespread as a result. What will make mediation more mainstream is greater government support and more support from the legal profession.
For me, I am hoping that Baroness Deech’s Bill will fail and that The Supreme Court will make decisions that provide clarity and take the law forward for the benefit for all.
Family law needs to change to improve so what I would like to see is a thorough public debate about changes, reforms, consistency and greater clarity from the sector and the main political parties.
Sadly, I am not optimistic but let’s see what the next few months bring”.