Family law has had an exciting decade, with many evolutions in the way lawyers and courts approach divorce and separation. As always, some of these evolutions have been driven by the changing ways that family units operate, and there is often a period where the law has to adapt to social change. With that in mind, here are ten key transformations that have taken place over the last ten years.
1. Collaborative Law
Collaborative Law arrived from the US as an alternative way of resolving issues arising from relationship breakdown. The separated couple and their solicitors sign a participation agreement committing them to avoid court proceedings, after which they attend meetings together to discuss the issues. This keeps everybody focused on negotiating a settlement, and can help to build a better ongoing relationship for the former partners. As a result, they will be much better placed when it comes to attending events such as school prize-giving, university graduations and weddings.
Although not a new way of resolving issues, it has become a mandatory consideration before Court proceedings can be issued. A Mediation Information Meeting (MIAM) provides an opportunity to determine if this is an appropriate way forward for a couple.
3. Maintenance for life
Under English Law, the court can order one party to pay maintenance to the other until one or other of them dies, even if a couple divorces as early as their late 30s. This has given England the nickname of “the divorce capital of the world”. Is this changing? That seems to depend on where in England you live, but there are signs that this is now out of step with the rest of the world and we may see a decline in its future use.
4. Children in the care of their fathers
Many envisaged we would see children spending half of their time with each parent by now but, after some initial progress around 10 years ago, this has not moved forward as much as might have been expected. Although courts are fully focused on it being best for a child to have both parents in their lives, there can still be a tendency to favour the child being based with one parent, albeit with lots of contact with the other.
5. State Benefits
The big change is that Child Tax Credit and Working Tax Credits are to be replaced with Universal Credits. What’s the difference? Well, CTC and WTC were unaffected by maintenance payments, which were traditionally paid from husband to wife. Now, maintenance will be taken into account for Universal Tax Credits, which are expected to be phased in by 2017. We have yet to learn whether this is a return to the ‘poverty trap’ where the mother is no better off receiving maintenance from the children’s father because of the loss of Universal Credits.
Unfortunately, the time it takes to get from court application to final hearing has got longer and longer. Courts are often snowed under and, if a Court decides that a final hearing is required to decide issues regarding the children, it can be 6 to 8 months before the next available slot.
Contrary to media speculation, not much has changed since the Children Act 1989 gave grandparents the right to apply for contact with their grandchildren. Has it been successful? Sometimes, particularly for grandparents that find themselves in a situation where their own child isn’t seeing their children, perhaps through serious ill health, disinterest or death. In that situation, if the court is supportive of children having contact with that side of the family, the grandparents will often succeed.
The Children and Family Court Advisory and Support Service is the eyes and ears for the Court, and provides detailed information on children to help the Court make the best decision. Traditionally, CAFCASS reports were lengthy, detailed, time consuming and costly. But when the reports became shorter, parents expressed concern that they were based on only a very brief time between the CAFCASS officer and the children.
Nowadays, as soon as an Application is issued CAFCASS carries out a safeguarding report and speaks with both parents. At Court, a CAFCASS officer is present to provide the couple an opportunity to resolve issues before heading further into Court proceedings. If a report is required, it is now carefully considered and extremely helpful in resolving matters (certainly in Hertfordshire), even if it isn’t always what one or other parent would like to read.
Unfortunately, litigation costs continue to rise, which is why SA Law places strong emphasis on considering options in the context of their cost implications before advising the client on an optimal route.
Subject to age and the type of pension scheme, it is now possible to draw out your entire pension scheme, although after the first 25% any further withdrawals are taxed at a person’s marginal rate. How are the Courts going to deal with this? We’re still waiting to see the legal impacts. For example, it may no longer be possible for one person to say they can’t afford a house if there is a pension pot available. Then again, will the Court expect them to take the tax hit of withdrawing the pension money?