In Back to the Future Part II, Marty McFly gets into a large spot of bother by visiting the year 2015 in a time-travelling Delorean, purchasing a historical sports almanac and subsequently disrupting the entire space-time continuum. I can’t see this article having quite the same effect. Still, all of us involved in family law would probably agree that the last few years have brought dramatic changes to the way we work and many more are probably on the horizon. Some of them have been positive (compulsory MIAMs, the Single Family Court, greater judicial continuity) and others much less so (LASPO and CCMS to name but two). Further change strikes me as inevitable but predicting exactly what lies in store for family law practitioners is difficult.
What follows is certainly not a complete ‘wish list’ of what I hope private family law looks like in 2025. I do hope that some of my predictions come to fruition; others strike me as sadly inevitable and depressing. All of us appreciate that there is no panacea for the complex range of problems that arise from family breakdown and disputes. Improved technology and administration can assist lawyers, judges and other professionals in our work but they can only take us so far.
Divorce and dissolution is now dealt with by regional ‘Divorce and Dissolution Centres’ in a similar way to current regional hearing centres for Children Act applications. The court fee is £1000 unless you are fee-exempt or apply for a consensual divorce (see below).
Most applications are dealt with electronically. Improved administration at Divorce and Dissolution Centres means that most applications for a decree nisi/conditional order are dealt with within 2 weeks.
After intensive lobbying and pressure, no-fault consensual divorce/dissolution has been introduced for couples that have been separated for a period in excess of 3 months, where both have attended a ‘Dissolution Information and Assessment Meeting’ (DIAM) and where both consent to a decree of divorce/dissolution. The court fee for such applications is £500.
Orders for costs in fault-based divorce/dissolution proceedings remain commonplace. To the frustration of lawyers, the judiciary continue to ignore whether a party has complied with the Family Law Protocol when considering a contested order for costs.
Pre-marital agreements are increasingly commonplace with around 25% of couples entering into the same before marriage. Such agreements are automatically binding where:
- Both parties have received independent legal advice;
- Both parties have made full and frank disclosure;
- The agreement was signed at least 3 weeks before the marriage.
However, the Family Court can still entertain applications for ‘top up’ financial relief where a binding agreement exists.
For couples without the benefit of a pre-marital agreement, s.25 of the Matrimonial Causes Act 1973 has been repealed. There is a presumption that a fair division of the matrimonial assets is an equal division. The bar for rebutting that presumption appears to be low. Income orders (excluding child maintenance orders) are subject to a time bar of 5 years with no possibility of an extension.
The court fee for issuing applications is now £1000 unless a party is fee-exempt. If a case proceeds to a final hearing, a further court fee of £2000 is payable, to be divided equally between the parties. Such fees have led to an increase in arbitration as a quicker (and perhaps cheaper) means of resolving disputes.
London is no longer the divorce capital of the world.
Unmarried Family Property
Despite ongoing pressure, successive governments have refused to introduce legislation reforming this area. Lawyers throughout England and Wales continue to report clients seeking advice upon ‘common law marriage.’
The Child Support Act 1991 has been repealed and with it the entire calculation system based upon solely assessing the income of the parent without care. The Child Support Act 2021 shamelessly adopts the existing Australian model by considering the combined incomes of both parents, their ability to pay and the degree to which care of the child is shared between parents. The collection and enforcement of child maintenance payments is dealt with by the Child Support Agency once again.
Private Law Children
Child arrangements orders remain in existence and have proven to be generally successful.
MIAMs remain largely compulsory before making an application. Each family hearing centre has a dedicated Mediation facility. If the MIAM filed with the application indicates that mediation did not take place because only one party attended or that mediation broke down, part of the FHDRA involves further discussion with the parties over the benefits of mediation and if viable, mediation will take place on the day of the FHDRA.
As with financial relief cases, the court fee for issuing applications is now £1000 unless a party is fee-exempt. If a case proceeds to a final hearing, a further court fee of £2000 is payable, to be divided equally between the parties. Arbitration is used as an alternative method of resolving disputes but remains far more popular for financial relief cases.
Payne v Payne has been held not to be good law owing to the unfair emphasis on the parent seeking leave to remove the child.
LASPO remains in force and despite miniscule amendments to acceptable evidence for the domestic abuse gateway, continues to cause untold misery for many people upon the breakdown of marriages and relationships.
All legal aid applications, administration and billing are now dealt with electronically via an improved version of CCMS. Complaints over technical problems with the system remain common. Fees remain incredibly low and the number of firms undertaking legal aid work continues to shrink. Lawyers go on strike in 2023 calling for LASPO to be repealed.
The reality is that none of us now what family law will look like in just over a decade. As with the current system, some of it is likely to be good and work well. Other parts of it will, almost inevitably, remain flawed and deeply frustrating to lawyers.
At the end of the day, nobody knows the consequences of the breakdown of a family better than family lawyers. We all recognise that ‘one-size fits all’ solutions are not appropriate and that couples and individuals undergoing emotional turmoil are not always capable of sitting down together and calmly and rationally resolving arrangements for the children or the future of the family home.
History tells us that flawed legislation is inevitable when the views of lawyers undertaking work at the sharp end are ignored or marginalised in the decision-making process. Home Information Packs and LASPO are just two examples. All lawyers could see that these measures had ‘disaster’ written over them in large print and they still came to pass. Whatever changes are afoot in the next 10 years or so, I do hope that the views of family lawyers remain paramount in shaping those changes.