A week in family law: Cafcass figures, family justice changes, no-fault divorce, and more

Family Law | 12 Apr 2019 0

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And quite a week it has been too.

Firstly, the trends in new public and private law children cases is continuing, with the former decreasing, and the latter increasing. Cafcass has reported that in March it received 1,117 new care applications. This is 9.9 per cent (123 applications) lower than March 2018. In the last twelve months Cafcass received 13,536 new care applications; this is a fall of 4.8 per cent (685 applications) from the previous twelve months. As to private law demand, Cafcass received 4,166 new cases during March 2019. This is 18.2 per cent (640 cases) higher than March 2018 and the highest March on record. Cafcass has experienced a steep increase in demand in the last two months. The previous month Cafcass saw the highest level of demand in February since 2013. Prior to that new private law cases had been 3.8 per cent higher than the same period previous year.

As I reported here, Mr Justice Mostyn has held that no weight should be given to a pre-nuptial agreement, in a divorce involving the great-granddaughter of the founder of Avon cosmetics. The parties entered into the agreement when they married in 2005. The marriage broke down in 2016. The husband subsequently issued a financial remedies application within divorce proceedings. The wife is the beneficiary of family trusts in the USA, with an overall value of at least $65 million, and the husband earns about £35,000 gross, with no net capital. Hearing the application, Mr Justice Mostyn held that it would be wholly unfair to hold the husband to the agreement, which would have left him with nothing. Instead, he awarded the husband a lump sum of £1,333,500, of which £375,000 was subject to a charge-back to the wife (or her estate), on the death of the husband. A reminder that our courts are not bound by pre-nuptial agreements, and will not uphold them if they think they are unfair.

As I also reported here, the President of the Family Division Sir Andrew McFarlane has provided an update on the changes currently happening in the family justice system, in a keynote address to the annual conference of Resolution, the association of family lawyers. I say ‘currently’, as it seems to me that there are always changes happening these days. Perhaps the biggest headline from his speech was when he informed his listeners that it will soon be possible to deal with all stages of the divorce process online. He said that the remaining parts of the divorce process, namely decree nisi and degree absolute, will be online “in the next few months.” Once the process is fully up and running, solicitors will be able to log on from anywhere, at any time, and see the state of an individual divorce case as it moves forward. They will also be able to file documents and communicate with the court and/or the other parties remotely through the system. By the end of 2019, he said, it is anticipated that the vast majority of divorce proceedings will be conducted online, or, if paper-based, will be scanned and converted to online. It sounds quite wonderful, but there is of course one problem with all of this: the whole system will have to be completely re-done if and when we get no-fault divorce.

Which brings me to my last story, and the biggest family law news of the week, which of course relates to divorce reform. Although whether we can actually call it ‘news’, I’m not so sure. Early on Tuesday the story broke that the Justice Secretary, David Gauke, had pledged that legislation for no-fault divorce will be introduced as soon as parliamentary time becomes available. This was not really news, as back in February it had been reported that Mr Gauke confirmed he would “bring in legislation enacting the reform in the next session of parliament”. A little later, however, there was something more concrete, when the Ministry of Justice published the Government’s response to the consultation on reform of the legal requirements for divorce. I haven’t studied the response, but it seems that the consultation has not changed the minds of those in government about the essential features of reform that they proposed in the original consultation document. Whatever, I suppose we must be grateful that we are hopefully going to get a system of no-fault divorce after all of these years, even if it may not be exactly what some of us had hoped for. I say ‘hopefully’, as there are still some hurdles for any legislation to get over. In particular, the Government does have the small matter of Brexit to deal with, which could derail any reform of divorce, for example if there is a general election. Let us just hope that the legislation stays on track.

Have a good weekend.

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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