A week in family law: Two Presidents, Islamic marriage, mobile courts and Skype

Family Law|Industry News|August 3rd 2018

After all the excitements of last week, it has been a somewhat quieter week on the family law news front, but not without a few highlights.

Firstly, as I reported here, Sir James Munby gave what appears to have been an entertaining final press conference as President of the Family Division. During the course of it, he made a number of suggestions as to how access to justice may be improved, including the introduction of mobile courts, courts sitting in pubs, offices, or other conveniently located buildings, and the public speaking to judges via Skype. I’m not sure which, if any, of these ideas, will come to fruition, but one thing is certain: the family justice system of the future is going to be very different to the one of the past. As to whether it will be better, that is another matter.

Secondly, Sir James found time before departing to publish a Circular detailing Phase 2 of the Financial Remedies Court Pilot, as I also mentioned, here. The Circular tells us that under phase 2 the pilot will be extended to cover much more of the country, albeit in a limited form. Hopefully, this will mean more people receiving a better ‘service’ when their financial remedy claims are dealt with. The Circular also detailed a procedure to deal with private Financial Dispute Resolution appointments (‘FDRs’), as I also explained in my post. These are an interesting development, another way to effectively ‘privatise’ the family justice system by getting others to do the work of the court, in a similar way to arbitration. Like arbitration, however, private FDRs cost money, and may not, therefore, be an option for the less well off. A further splitting of family justice into a two-tier system for the haves and the have-nots?

Moving on, in a decision that could have wide-ranging consequences, a judge has ruled that a couple who went through an Islamic marriage ceremony but had not been married in accordance with English law had been in a ‘void’ marriage. In the case, Akhter v Khan, the parties went through an Islamic marriage ceremony in Southall, west London, in 1998. They subsequently had four children and held themselves out to the world at large as husband and wife. The relationship broke down and the ‘wife’ issued divorce proceedings in 2016. The ‘husband’ defended the proceedings, on the basis that the parties had not entered a marriage valid according to English law. If that was so then the ‘wife’ could not make any financial remedy claims against the ‘husband’. Hearing the case, Mr Justice Williams held that there had been a void marriage, meaning that the wife could take nullity proceedings, and make financial remedies claim within those proceedings. There has been some confusion in the media as to what was decided by the case, but Mr Justice Williams explained: “What this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely, whether a Nikah marriage ceremony creates an invalid or void marriage in English law.”

The House of Commons Work and Pensions Committee has published a report on Universal Credit and domestic abuse. The report warns that single household payments of Universal Credit could put claimants living with domestic abuse at risk of harm as they enable perpetrators to take charge of potentially the entire household budget, leaving survivors and their children dependent on the abusive partner for all of their basic needs. The Committee says that the Department must give serious consideration to any policies that might offer some protection to survivors of abuse and deliver fairer payments to households. Frank Field MP, Chair of the Committee, said: “This is not the 1950s. Men and women work independently, pay taxes as individuals, and should each have an independent income. Not only does UC’s single household payment bear no relation to the world of work, it is out of step with modern life and turns back the clock on decades of hard won equality for women. The Government must acknowledge the increased risk of harm to claimants living with domestic abuse it creates by breaching that basic principle, and take the necessary steps to reduce it.” You can read the report here.

And finally, having last week wished Sir James Munby a long and happy retirement, this week I end by wishing his successor Sir Andrew McFarlane, who took office last Saturday, a long (well, six years, until he reaches his 70th birthday) and successful tenure as President of the Family Division.

Have a good weekend.

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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