In a year where more than 40 countries are due to hold national elections (the UK being one of them), attempting to predict how the family legal landscape will change over the coming year may seem like an impossible task. Despite this, certain trends have already started to develop over the last year and (although unpredictability seems to have been the only predictable element in family law over the last few years) these look set to continue. Here, associate Jessica Keal explores some of these key trends and how they may affect different aspects of family law in 2024.
Huge reform. Possibly…
Finances upon divorce
The Matrimonial Causes Act 1973 (MCA), which governs finances on divorce or dissolution, will be 51 years old this year. A lot has changed during this period, but this Act from the 1970s still forms the bedrock of the Court’s approach to settling financial disputes. The MCA has been amended by statute and clarified by case law over the intervening years, but the underlying laws may no longer be fit for purpose in modern day society. The Law Commission has been tasked with carrying out a review of the MCA and the first scoping paper is due to be published in September 2024. There is the potential for reform, which could significantly change the approach towards the division of financial assets upon marital breakdown, so family practitioners are watching this area keenly.
As part of the above, the Law Commission will also consider whether their recommendations for qualifying nuptial agreements should be re-examined. In 2014, the Law Commission published a report that recommended the introduction of ‘qualifying nuptial agreements’, which would be legally enforceable provided certain conditions were met. This was in response to discussions around the enforceability of pre- and post-nuptial agreements, which continue not to be legally binding.
Tying into this is the call for co-habitation reform. Currently, the laws that govern financial provision upon divorce extend only to married couples, with no protection afforded to those couples who experience relationship breakdown after choosing to live together without getting married. There have long been calls for co-habitation reform from family practitioners, but at the end of 2023, Resolution (an organisation of family professionals committed to a non-confrontational approach to family disputes) announced that reforming the law around cohabitants’ rights on separation is at the centre of their vision for family justice. Their backing may encourage greater scrutiny of this area in Parliament, which is long overdue.
Save our Court system! Please. Anybody.
Private child arrangements
One of the key principles within private children law is the need for expediency. Any delay in cases involving children is considered detrimental to their welfare. Unfortunately, the Courts are often overstretched and the length of time taken for a family to reach a resolution of a matter involving arrangements for a child has increased yearly. Some refer to this situation as a ‘crisis’ in the family Courts, and with the Law Society calling on the Government to engage with this situation, it certainly seems as if matters are not far from coming to a head.
Taking the litigation process online
Potentially intended as a measure to help ease the strain on the Courts, an increase in the digitalisation of the Court process is set to be a primary focus for the Ministry of Justice this year and beyond. Aimed at improving access to justice and reducing costs and animosity, the changes to the litigation process should ultimately allow litigants to choose dispute resolution that is conducted solely online. The move has been made possible by improvements in ‘Lawtech’, legal technology that aims to simplify and enhance the legal system.
Alternative dispute resolution
To further reduce the strain on the Courts and to limit the damage that can be caused by lengthy litigation, changes to the Family Procedural Rules (the Rules that govern the litigation process) are due to come into force on 29 April 2024. These changes are aimed at encouraging the early resolution of disputes relating to children and finances outside of court.
Protecting the vulnerable
Parental alienation (the process whereby a child becomes distant or estranged from one parent due to the emotional manipulation of the child by the other parent) is a complex psychological phenomenon that is challenging for the Courts to deal with. Allegations of alienating behaviour are often made, but it is important to investigate these thoroughly to ensure all children are protected. As allegations have increased, the Family Justice Council has launched a consultation on guidance on responding to allegations of alienating behaviour and it is hoped that the guidance will be published in 2024.
In March 2023, a joint report investigating current surrogacy laws was published by the Law Commission of England and Wales and the Law Commission of Scotland. The aim of the report was to address how surrogacy arrangements could be reformed to better serve families in the UK. This often complicated and confusing area of law relies on outdated legislation, so suggested reforms such as allowing intended parents to be legal parents from the child’s birth and introducing measures to ensure both the child and surrogate are protected are welcome. The Government provided an interim response to the report on 8 November 2023, so it is anticipated that a full response addressing the recommended changes will be published in 2024.
There is a lot going on this year, and most of the proposed reforms set out above are aimed at ensuring family law remains fit for purpose in a society undergoing rapid change. These are all promising developments aimed at protecting vulnerable people at difficult points in their lives. The hope remains that these important changes will bring about concrete results and won’t get side-lined in another turbulent year.
If anyone is affected by the above or needs guidance on family law, please get in touch with our family team for support and assistance.