A week in family law: Reform of marriage, divorce and civil partnership

Family Law|July 12th 2019

It’s all been happening on the reform front this week, one way or another.

We start with the Law Commission, which has begun reviewing the laws around how and where people can marry in England and Wales. The Commission aims to propose options for a simple and fair system to give modern couples meaningful choice about their wedding ceremony. The project will do four things: firstly, consider where a wedding should be able to take place; secondly consider how to remove unnecessary red tape which can hamper choice and increase the cost of wedding venues; thirdly aim to ensure that the law works for all couples and all faiths, including those who are not as well served by the current buildings-based system; and fourthly seek to make the law more simple and certain, so that it is clear whether a couple’s marriage is legally valid. The remit for the project includes developing a scheme that would allow non-religious belief groups, such as humanists, and independent celebrants to celebrate weddings, enabling Government to widen the routes to legally binding ceremonies if it chooses to do so. Law Commissioner Nick Hopkins is quoted as saying:

“A couple’s wedding day is one of the most important events in their lives. Our project aims to bring the 19th century law up to date and make it more flexible, giving couples greater choice so they can marry in a way that is meaningful to them. We look forward to continuing our work in this area.”

Sounds good to me.

Moving on, Lady Hale, the President of the Supreme Court, has taken the “constitutionally unusual” step of publicly criticising a bill that is making its way through parliament. In a speech entitled ‘What is a 21st Century Family’, delivered at the International Centre for Family Law, Policy and Practice on the 1st of July (which I suspect I may be looking at in more detail in the coming days) she said that in her view Baroness Deech’s Divorce (Financial Provision) Bill was more threatening to the stability of marriage than the threat some see from the introduction of no-fault divorce. The Bill, which I have discussed here previously, aims to reform the law relating to financial remedies on divorce in three main ways: to make prenuptial agreements binding, to provide that ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally, and to limit the duration of spousal maintenance orders to five years “unless the court is satisfied that there is no other means of making provision for a party to the marriage and that that party would otherwise be likely to suffer serious financial hardship as a result.”

Lady Hale said:

“I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions when the parties cannot be helped to agree something sensible. But I question how one size fits all can possible meet the justice of the case or fulfil the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases. It also sits oddly alongside Lord Marks’ Bill, which aims to give unmarried couples a remedy which will redress the economic advantages and disadvantages suffered by each party in the course of their relationship.”

I suspect that many, if not most, family lawyers would agree. In any event, my understanding is that the Baroness’s Bill has stopped its progress through parliament.

And finally, along with reforms to marriage and divorce, the government has published plans for extending civil partnerships to opposite-sex couples by the end of this year. The government is also launching a consultation on how to ensure couples in England and Wales can access the form of legal union that best suits them. The consultation will seek public opinion on giving opposite-sex couples an opportunity to convert their marriage into a civil partnership, and then bringing all conversion rights to an end. Providing a period for conversion will allow opposite-sex couples the opportunity to access the legal relationship that was not previously available to them.

Minister for Women and Equalities, Penny Mordaunt, said:

“There are all sorts of reasons why people may choose not to marry, but for a long time it has been the only option for many wanting the legal security it provides. Last year the Prime Minister announced government would support the extension of civil partnerships to opposite-sex couples. This is a fantastic step, providing an alternative to marriage for these couples. We must now consider those who didn’t haven’t had this as an option previously, that’s why we’re consulting on whether opposite-sex married couples can convert their marriages to civil partnerships.”

The consultation will run for six weeks until the 20th of August, and will inform how government legislates.

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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