Upcoming changes and trends in family law

Irina Baranova

This year has already seen and will continue to see a changing landscape in the family law courts and other legal systems. No fault divorce, a move towards transparency and the effects of Brexit will all have an impact in 2022 and the coming years.

Toby Atkinson and Sarah Havers consider the key developments in family law.

No fault divorce

This is the most talked about upcoming development, and rightly so. The Divorce Dissolution and Separation Act 2020, coming into effect on 6 April 2022, will introduce “no fault” divorce for married and civil partnership couples.

This is a welcome and long-awaited change to divorce law, which will finally give couples the ability to divorce without having to attribute blame.

There is only one ground for divorce, the irretrievable breakdown of the marriage, and this is not changing under the incoming act. However, for many decades, couples have had to evidence the irretrievable breakdown of the marriage either by attributing blame (by relying on the other’s adultery or “unreasonable behaviour”) or by waiting for a period of separation to elapse (currently a minimum of two years, so long as both spouses consent or five years if one spouse refuses to consent).

The new act drags our antiquated divorce laws into the modern day. It gives couples the ability to divorce without attributing blame or having to wait for at least two years of separation to pass. For the first time, it will also be possible to file for divorce jointly.

The incoming changes will give couples more autonomy and offer them a more dignified divorce by reducing unnecessary conflict and acrimony at the outset of proceedings.

However, despite the imminent changes, Stewarts’ Family department has experienced its usual January spike in new enquiries, indicating that not all couples are not prepared to wait until April.

Privacy and transparency in the family courts

In October 2021, the President of the Family Division, Sir Andrew McFarlane, published his hugely significant report “Confidence and Confidentiality: Transparency in the Family Courts”. His review focused on finding the balance between enhancing public confidence in the family courts while “maintaining anonymity of those families and children who turn to it for protection”. He concluded that to increase the transparency in the family courts, there needs to be a “major shift in culture and process”.

This shift has been in train over the last few years, with certain judges being more willing to allow media access, hear cases in open court (rather than in private), and not anonymise judgments. However, the president’s report will result in a wholesale change in approach across the family courts to increase transparency.

The president wants to see the media being given access not only to the court but also the ability to report automatically almost all details of the case (save for addresses and children’s names). Until now, accredited media representatives could attend hearings but needed to apply for the court’s permission to report on the case. The president also considers media present in the courtroom should be given access to certain documents in the case, such as witness statements. Also, the media should be made aware in advance of which cases are being heard on any given day.

The initiatives set out in the president’s report are currently the subject of consultation, but we are already seeing significant change as judges take on board the president’s findings. For example, Mr Justice Mostyn declared in a judgment published in November 2021 that his default position will be to “publish financial remedy judgments in full without anonymisation” and any departure from that position would have to be distinctly justified.

As a result of these huge shifts in the approach of the family court to privacy and transparency, it is anticipated that forms of alternative dispute resolution will become ever more popular, particularly arbitration.

Arbitration

With the trend towards transparency a hot topic, it is anticipated that arbitration will be an increasingly favourable option for many couples, given the privacy that it offers.

Previous concerns regarding arbitration (namely the more limited grounds for challenging an arbitral award than a court decision) were laid to rest by the 2020 case, Haley v Haley [2020] EWCA Civ 1369. This decision by the Court of Appeal aligned the basis for appealing an arbitral award with the requirements for appealing a court decision. This case was an important step forward for promoting family arbitration as a genuine alternative form of dispute resolution. We, as a department, experienced a 100% increase in arbitrations in 2021, following the Haley decision in 2020.

Furthermore, the Covid-19 pandemic has put pressure on the family courts, increasing the backlog of cases that the courts have had to manage. As a result, we expect to see a further uptake in the use of arbitration to resolve family law disputes. This is not only because of the privacy it affords couples but because it allows for a case to be dealt with much more quickly and often more cost-effectively than through the overburdened family courts.

Brexit

And finally, Brexit. Although June 2022 will mark six years since the UK voted to leave the EU, from a legal perspective, the changes only came into force just over a year ago, at 11pm on 31 December 2020.

Perhaps not surprisingly, family law was not at the top of the agenda for the Brexit negotiators. Where EU legal provision has fallen away, it has largely been replaced by the default resurrection of old laws. We expect the implications increasingly to be felt, particularly in relation to jurisdictional disputes.

Where you get divorced can fundamentally change the financial outcome of your divorce. London has long been known as the divorce capital of the world as a result of the English court’s generous approach to the financially weaker party. It is not uncommon for one half of a wealthy international couple to want to have their divorce (and associated financial claims) dealt with in England and the other spouse to do everything possible to stop the English court’s involvement. The changes to the law following Brexit are likely to make it easier for a spouse to establish jurisdiction but also for the other spouse to try to assert that England is not the most appropriate jurisdiction to deal with the divorce.

Quote from Toby Atkinson:

“Various key aspects of family law are going through fundamental changes at the moment, perhaps the most seismic of which is the move towards greater transparency in the family court.

“The aim is to ensure greater accountability and for justice ‘to be seen to be done’. It is vital that the public has confidence in the family courts, and this is reinforced through transparency and open justice. However, these fast-moving changes will have huge implications for separating families who wish to keep their personal lives private.

“It is inevitable that these accelerated changes will rapidly increase the number of high net worth cases resolved privately through arbitration so as to avoid adverse publicity. A knock-on effect of these changes may well be that an increase in the number of cases resolved privately helps to ease the pressure on the family court system and the huge backlog of cases it has experienced in recent years.”

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