Gemma HopeNow the dust has settled on the start of the New Year what changes does 2019 hold for family law? In this blog piece I take a look at some of the trends, shifts and changes that are set to have an impact on family law –  for separating/divorcing couples and their families, as well as for family lawyers themselves.

Surrogacy

Surrogacy is becoming more common; it is estimated the number of children born through surrogacy could be about 10 times higher than a decade ago. It is therefore essential that the law that governs it keeps up to date.

At the start of January 2019 new law came into force to enable single intended parents, as long as they have a biological link to the child, to be able to obtain legal recognition as a parent of a child born through surrogacy in the same way as couples can.

What does this mean for single parents who already have children through surrogacy?

Intended parents only have six months from the birth of the child to make their application for a parental order. The change in the law provides for single parents to apply retrospectively and still be within the six-month time limit so long as their application is made by 2 July 2019 (within six months of the change in the law being brought into force).

There are a lot more reforms needed to ensure the law around surrogacy works for the parents, the surrogate and, most importantly, the child. The Law Commission has kicked off a law reform project in relation to surrogacy which will hopefully result in a draft bill. The consultation paper is likely to be published in May 2019. To find out more and get involved in the consultation you can visit https://www.lawcom.gov.uk/surrogacy/.

Protections for domestic abuse victims

January 2019 has seen a new draft bill being placed before parliament on domestic violence being published Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019.

This draft bill provides for a long-awaited ban on alleged domestic abusers personally questioning their victim in the family courts. Instead, the court will be able to appoint a lawyer to put the questions to them. Judges will also have the power to allow victims to video record their evidence or cross-examination in advance, rather than having to give both live.

Hopefully parliamentary time will be given to considering the draft bill as a matter of urgency.

Court modernisation

It is understood that the government has invested about £1 billion in modernising the court system, with a focused move toward online services in a bid to reduce delays and cut costs.

Whilst modernising the courts is welcomed, there are concerns about the impact and deliverability of the reforms. MPs announced at the start of this year that they are to probe the access to justice implications of the modernisation programme. Issues such as the increasing use of digital and video technology and the closures of courts are to be looked at. The committee will also consider whether the MoJ and HMCTS have consulted effectively on the reforms, and maintained sufficient communication with judges, lawyers and the advice sector.

You can find information on how to submit written evidence to the committee here and a link to submit evidence here. The deadline is 11 March 2019.

Division of matrimonial assets

A private members’ bill was introduced in the House of Lords last year. The bill seeks to make substantial reforms in the law to the way that financial settlements are dealt with on divorce.

The three main provisions are:

  • For pre and post nuptial agreements to be treated as legally binding, provided that certain conditions are met.
  • That ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally and only depart from that if to do so would be fair having regard to specific circumstances.
  • For the duration of spousal maintenance to be limited to five years unless that would cause a spouse to suffer serious financial hardship.

It is understood that the main reasons for the proposed reforms is to make the law clearer and more certain.  As it stands at the moment there is a wide range of discretion when determining how assets should be divided up following a marriage coming to an end. This can make it very difficult to know what the likely outcome may be if a case is taken to court which as a result can make it harder for the separating spouses to reach agreement.

However, discretion means that there is the scope for settlements to be tailor made depending on the specific circumstances of each case. Families are complex, it is therefore difficult to see how a one size fits all approach could work without causing unfair outcomes.

From my point of view what is clear is that a thorough review of the law by the Law Commission, with input from the public and the family law practitioners is necessary.

The bill is currently awaiting its second reading in the House of Commons. You can find the full details of the bill and follow its progress here.

No fault divorce

Will 2019 finally be the year we see an end to the blame game when it comes to divorce? The government announced at the end of 2018 that it is committed to helping couples separate more amicably (read our blog on no fault divorce here).

The government’s consultation includes consideration of:

  • Retaining the sole ground for divorce as the irretrievable breakdown of a marriage.
  • Removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
  • Introducing a new notification process where one, or possibly both spouses, can notify the court of the intention to divorce.
  • Removing the opportunity for the other spouse to contest the divorce application.

The government is due to provide its response to the consultation in March 2019.

Brexit

No one knows with any certainty as yet the impact Brexit will have on family law over the course of the next year. Here is a very brief summary of key points if we leave without having reached an agreement with the EU:

    • EU family law instruments based on the principle of mutual recognition will no longer apply cross-border between here and EU states.
    • In some areas of law, such as child abduction, the Hague Conventions will continue to apply between us and EU states.
    • In some cases, bilateral treaties and conventions pre-dating EU membership may exist between us and EU member states.

Our team of family lawyers will continue to explore these issues on our blog, covering topics that matter to individuals and their families – as well as our family law peers. If you would like to talk to us about a topic here, please get in touch with a member of our team.

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