A week in family law: Pensions, Henry VIII and proposals for reform

Family Law|July 5th 2019

The Pension Advisory Group (‘PAG’) has published a guide to the treatment of pensions on divorce. I haven’t yet had a proper look at it (I will do so in the coming days), but we are told that it “brings guidance to family judges, lawyers and pension experts encouraging fairer settlements and helping to manage liability.” PAG is a multi-disciplinary group of professionals specialising in financial remedies and pensions on divorce. It is jointly chaired by Mr Justice Francis and His Honour Judge Edward Hess, and is supported by the President of the Family Division and the Family Justice Council. The guide was born from the need to address the wide variation of financial settlements nationally which stems from a lack of understanding of how professionals should deal with the valuation, sharing or offsetting of pension fund assets. Mr Justice Nicholas Francis and Judge Hess are quoted as saying: “It is our hope that this document will assist and clarify the often difficult process of incorporating pension considerations into financial remedies cases in a way which is procedurally and substantively fair to the parties. Time will tell whether our hope will be realised.” Sir Andrew McFarlane, President of the Family Division, was perhaps more optimistic. He said: “I am extremely grateful to the Pension Advisory Group who have worked hard to produce guidance which de-mystifies this area and establishes clear ground rules for the proper approach to be taken in every case.”

The Divorce, Dissolution and Separation Bill, which is intended to introduce a system of no-fault divorce, has hit its first bump, in its otherwise serene and rapid progress along the parliamentary road. I’m not sure, however, that the bump is a particularly large one – perhaps just a small pothole. Somewhat unexpectedly, it emanates from the Law Society, which is a firm supporter of no-fault divorce. A report tells us that the Society “is concerned about the Bill’s structure”. Apparently, they seek certain insubstantial amendments that “try and protect the interest particularly of the so-called respondents, the sole petition where the person may not have fully been expecting a petition to come through.” The report does not detail what these amendments are. In particular, though, the Society is concerned that in its present form the Bill gives the Lord Chancellor ‘Henry VIII-type powers’. What, I hear you ask, has this got to do with Henry VIII? No, it’s nothing to do with the two divorces he went through. ‘Henry VIII powers’ is an expression referring to clauses contained in a statute that enable ministers to amend or repeal provisions in that statute (Wikipedia tells us that “an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539”). The concern is that clause 6 of the Bill gives the Lord Chancellor powers to amend ‘crucial’ elements of the Bill. However, despite this issue, I understand that the Bill is expected to complete its Commons committee stage this week, before moving on to its report stage.

And lastly, the big family law news of the week was the launching by the President of a public and private law consultation regarding children cases in the Family Court. The consultation will consider the interim proposals for reform contained in reports by two Working Groups, a Public Law Working Group chaired by Mr Justice Keehan, and a Private Law Working Group chaired by Mr Justice Cobb. The President commissioned the reports because he felt “that there was a need for collaborative endeavour by all those involved in the Family Justice system to consider what might be done either to reduce the volume of cases, or to enhance the ability of the courts to deal with them justly and efficiently, or both.” He said that the focus of the reports was “firmly upon professional processes and procedure across the system”, and that the scope of the two projects did not extend to reform or amendment of the substantive law; rather, they were “aimed at improving the ability of the system, and those who work within it, to apply the existing law as it relates to children.” Again, I expect that I will be looking at the proposals in rather more detail over the coming days.

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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