What Direction Should Reform of Family Law Take?

Thoughts by FLiP Director, James Pirrie.

One policy area that seems to be opening up between the main parties for the next election is that of cohabitants’ rights. In the red corner we had Emily Thornberry speaking at the Labour party conference in the first weeks of October that there would be rights for cohabitants (form yet to be made clear) but it would have – interestingly – Boris Johnson’s former wife giving shape to the reform.

Meanwhile in the blue-ish corner, there is no banner out front and centre but a number of indicators surely show what we should expect from a future Conservative administration:

• Baroness Deech (the cross-bench peer) who has long been promoting a “stand on your own feet” policy, seeking a simpler pro-forma for allocating resources; Baroness Shackleton (Conservative peer) has joined that initiative campaigning to constrict judges’ discretion;

• In August 2022, the Women and Equalities Committee called for reform saying “The Government should reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation.”

• The Government rejected the recommendation saying that this could and should not be undertaken in advance of reform of finance-on-divorce law, seen by most as an attempt to kick the issue into the long-grass and generating the response from the committee’s chair Caroline Noakes: “It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.”

It is still normal to see specialisation in relationships: one focusing on the family and home whilst freeing up the other to focus on career and earning.  At the end of a relationship this leaves the career-partner much better equipped to continue earning and build beyond, with an already established career.  Research shows the home-focused parent unable to make up for the lost years.  This is particularly so where, as is likely the children are based rather more with them than the career-parent, meaning that time in work is also restricted.  Until society, with Government support has built a norm of equality of child-caring, there can be no simple guillotine to financial claims where relationships end.

If the couple is married, there can be orders to protect against the unfairness that otherwise exists, so as to give both former partners a fair start on the road to independent living.  Without marriage it is as the Women & Equalities committee summarised: “On family breakdown, cohabitants must rely on complex property law and trusts principles. Schedule 1 to the Children Act 1989 is outdated, mostly benefits the children of wealthy parents and is in need of reform. On death, cohabitants do not automatically inherit from their partner.”

Where both corners are wrong is to call for the public to be educated that there is no such thing as a common law spouse.  If that idea sticks despite fifty years of that campaign, it is because that idea is deeply embedded and represents our moral instincts.  If law serves society, rather than the other way around, then it is the law that needs to change its mindset not the public it should be providing for.

This is still a gendered discussion – more of the home-parents are women, add to the mix the impacts of menopause that may be occurring at the same time as separation and the gap at separation is going to grow all the wider in the years that follow.  Fail to address it and we invite a whole new set of biases into our society, likely to put children and their needs on the front line alongside the mothers who care for them.  A formula does not do it.  There is no simple marker that can be used to generate the solution to address this; that is why discretion is needed.

We first encountered formula-based justice in the Child Support Agency in the 90s, arguably one of Mrs Thatcher’s least popular creations (and there were some other strong contenders).  By the time that the first two systems had closed, in 2012, they had racked up irrecoverable arrears of £3.8billion, even if it had the right answers (and it didn’t which is why opposition was so virulent) it clearly wasn’t delivering them – and that was despite having powers to imprison.  There is no simple set of markers that can be used to generate good solutions simply; that is why discretion is needed.

The Fair Shares Project shows that it is the discretionary approach that promotes outcomes that protect the vulnerable and in particular give some protection against child-poverty.

We need to be super-careful about who you listen to when thinking about reform, for fear of survivor bias affecting the assessment.  Speak only to judges and you have a perspective of the 5% of the system’s failures [the cases that got away from our endeavours to settle them].  Focus on the reported cases and it reduces that to a fraction of a percent – the smallest of keyholes from which to view a complex system.  Listen to the individual who has had a terrible divorce experience and your sample constricts further (to 0.00044%).

The same could be said of me. Though I seldom go to court because I aim to sort instead, my sample is limited too. We all end with the problem “well who do we ask who has enough experience but a broad enough perspective?”

I am absolutely convinced that the reform may lie more in process than substance: the problem is created by the high cost of the system: if only dispute resolution were better supported, the system would be equipped to serve better. Court should be left for the real minority of outlier cases: its principles informing the reservoir of cases being resolved in the upstream reservoir marked solutions-through-dialogue (mediation/collaborative/early neutral evaluation etc)

The direction that our next Government should be adopting is surely clear:

1. There will never be a single solution so don’t look for that cure-all: families are too diverse with myriad needs. We need a Minster for Families, with a broad remit not just across justice, but health, benefits and education too.  Some of the solutions have nothing to do with family law and lie upstream, for example in the way that we support the early years and promote (and support) both partners into the role of parents so that there is not just one being left behind economically.  The absence of the holistic view across all aspects of family life is hurting us.
2. In a discretionary system, there is always the risk of disproportionate cost, for those families that can’t for whatever vast range of reasons work out answers themselves.  Some have to use the courts to decide outcomes but we must be constantly upgrading our systems, for example to provide cheaper swifter outcomes for those with simpler situations, but it is the procedural rules not the substantive principles that need focus.  Government must support dispute resolution, permitting it to reach further along the continuum and provide closure for those that otherwise trickle down towards the stagnant muddy reaches moving slowly towards court.
3. The blue-corner chant that the “forty-year old section 25” (the bedrock of our law) should be scrapped is misplaced.  Section 25 gives guidance saying essentially take everything relevant into account and do what is reasonable.  That remains as much the right mantra now as it did when first made.  It is unlikely to age.  All that is wrong is where it has restrictions (see below) and that should teach us to think long and hard before following Baroness Deech’s urgings to integrate new ones.  These are what fall out of date and generate injustice for outliers.  The more that you try to get specific about the s25 criteria the shorter the lifespan of the law, as society continues to evolve.  Our judges give us guidance through the cases.  Family law specialists can quickly give guidance on the likely outcome to any set of circumstances.  Putting this evolving guidance into fossilised form in a statute will help no-one.
4. Once we realise that the system works best where there is (1) discretion to work out good answers, and (2) a proper supported and promoted dispute resolution process to help find answers at an early stage, what comes into focus for change are the restrictions on jurisdiction, that is the areas where the courts’ discretion is prohibited to reach:
   1. We need to open up this system of equitable redistribution of resources to never-married and other relationships, the quality of that commitment can be recognised as a “section 25 factor”;
   2. This would then permit the closing up of the schedule 1 regime which, as Caroline Noakes points out, is riddled with problems: there would be a discretion to take into account all aspects of the relationship – whether [or not] there was the commitment of marriage … whether [or not] there are children, just as now there is the factor of the length of the marriage to bring into the reckoning;
   3. We need to open up the idea of adult children claiming – and not just where (as now) circumstances are special.  Children being at home after university is now routine and having all of that support risking falling to one parent brings in the spectre of child poverty and that above all is what this regime must address.

One former Conservative Minister was heard this week to opine that certainty was more important than fair outcomes, that startling view seems to prioritise above the problem the process that is set to solve it.  The blue corner is doomed trying to find improvements in a new allocation formula or set of fixed approaches.  The red corner certainly hasn’t unveiled all the answers but seems to be heading in the right direction – let’s see how they do.