A week in family law: Divorce, marriage, surrogacy and child support

Family Law|December 7th 2018

As I reported here, a husband has been criticised by a Family Court judge for contesting a divorce issued by his wife on the basis of his adultery, despite the fact that he admitted to having committed adultery for some twenty-two years of the marriage. Unsurprisingly Her Honour Judge Lynn Roberts granted the wife her decree nisi, saying that the husband’s whole case had “been completely futile, a huge waste of money, a tragic destruction of family relationships, and all, in my opinion, to satisfy [his] own vanity and need to be in control and for the other reasons.” All he had to do, she said, “was to not contest the divorce, a divorce he wanted, as virtually everybody else in the country does, and this couple would have had their decree nisi last year, the various relationships would, in all likelihood, have been well on the way to healing by now and the money saved for the family.” As I said in my post, the case is not just a demonstration of the futility of defending a divorce, it is also a perfect advertisement for removing from parties the option of defending a divorce, or even asserting who is to blame for the marriage breakdown, by the introduction of no-fault divorce.

A major new study has recommended that couples marrying in civil ceremonies should be allowed to have religious vows, rituals, readings, and music as part of their ceremony for the first time. The study, carried out by Dr Stephanie Pywell, from The Open University Law School, and Professor Rebecca Probert, from the University of Exeter Law School, is the first investigation into the words and rituals that are requested by couples and permitted or vetoed by registrars. It concluded that most registrars take their role very seriously and are keen to accommodate couples’ wishes wherever possible. However, the researchers said that confusion and inconsistencies arise because official guidance requires registrars to exclude anything they understand to be “religious in nature”. Dr Pywell said: “The current ban on content that is ‘religious in nature’ is hard to justify. Relaxing this restriction would allow couples to create marriage covenants using words that are most meaningful to them. Allowing them to include sacred, as well as secular, elements at such an important moment in their lives would enhance the dignity and solemnity of the occasion.”

The ban on paying surrogate mothers should be lifted, according to the former President of the Family Division Sir James Munby. Currently women are banned from advertising themselves as surrogates, or from receiving payment other than to cover “reasonable expenses”. In an interview with the Mail on Sunday Sir James said: “How is a judge supposed to assess whether the £10,000 paid, for example, is a genuine expense? By and large even in the cases the court says it’s not a proper expense, the judge waves it through because otherwise what do you do? It’s probably better to face up to reality and move to a proper system of regulation rather than prohibition.” Sounds like a sensible move to me, and Bethan Cleal of the Surrogacy Team at Stowe Family Law, who I’m sure knows a lot more about the subject than I do, agrees.

And finally, the various changes to the child support maintenance system that I mentioned in my post here back in August are to be brought in later this month. One of the main changes, and a most welcome one, is provision for specified assets belonging to the non-resident parent (‘NRP’) to be calculated as having a weekly value which is taken into account in order to vary a maintenance calculation, the weekly value of the asset being treated as additional income of the NRP. Other changes include extending deduction orders (i.e. where the maintenance has not been paid) to joint accounts, and adding disqualification for holding or obtaining a United Kingdom passport to the methods of enforcing non-payment. Hopefully these changes will mean that more children have the benefit of child support.

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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