How Family Law Has Evolved Over The Years
Family Law specialist Wendy Beacom, part of Barnard Castle Solicitors Tilly Bailey & Irvine, explains how laws have evolved in the sector.
I have always been part of a family law team, specialising in resolving finances upon separation and dealing with child arrangements for separating parents. In the early years of my career this was assisting senior staff but I have been qualified myself as a Chartered Legal Executive for nearly 20 years so have a wealth of experience in providing advice in this area.
One of the main challenges is keeping abreast of an ever-changing goalpost of legislation. Take divorce proceedings, parties had to attend court to prove their divorce petitions. This is because then divorces were governed by law made in 1973 when attitudes to divorce were much different now. It was very much the “blame game” but over time that has softened even though we are still governed by the same 1973 law. Undefended divorces are generally dealt with on paper and rarely is an attendance required at court. In 1995 Parliament considered changing the rules on petitions and make them on a no fault basis, but the legislation was abandoned. In 2018, a defended divorce case (which are rare) hit the headlines because the wife relied in her petition on the fact of her husband’s alleged behaviour.
However, the Supreme Court upheld the husband’s case. It means that the wife has to remain married to her estranged husband for a few more years before she can rely on the fact that the parties will have been separated for over 5 years. This case and the ensuing press coverage, has resulted in Parliament being asked to consider legislating on a “no fault” divorce system.
Some will argue that will make divorcing easier. In my experience, it will not because for most parties separating it is an emotionally difficult time. At the end of the day, a party is making a decision to end a marriage (or indeed a relationship) and it is highly stressful and anxious. If issuing a divorce petition without pointing the finger at the other party can ease the acrimony that can result from a party being blamed for their behaviour then that has to be beneficial. It means that more focus on resolving the “bigger picture” ie arrangements for the children and financial issues in a less heated way from the outset.
In financial matters, there was the stereotypical perception that in a relationship there was a “breadwinner” and a “homemaker” and that their contributions were unequal owing to their different financial contributions. In 2000, the case of White and White emphasised that there should be no distinction and that a homemaker’s contributions should carry as much value as the breadwinner’s.
This is no surprise because a lot of the time a homemaker’s contributions allows the financially stronger party to pursue their career which can involve periods of time away from the home or long/unsociable hours, which they could not do without the other spouse being at home.
2000 was clearly a busy year for legislation as this brought the advent of pension sharing orders. Pensions previously could not be shared and again one party was often disadvantaged by this situation. Courts would try to be creative but often available cash assets such as the home, investments were insufficient to be able to compensate for the loss to the party without a pension provision whose expectation would have been to enjoy the benefits of such at retirement. I often see cases where pensions account for the largest portion of the families’ assets. Therefore being able to share in that asset brings fairness and that is what the court strives to achieve overall.
A decade on saw the case of Radmacher and Granatino which involved a decision of the court determining that a pre-nuptial agreement should stand. This was a landmark decision and increasingly, I have been asked to advise on pre-nuptial agreements. What this case has done is highlight that where a party wishes to preserve pre-acquired assets, perhaps from a previous relationship or built up by one party prior to the relationship beginning, that there is a possibility to do that. In addition, similar agreements can be entered into post marriage where one party may receive an inheritance or be gifted capital from parents. Parents who are wanting to arrange their own finances are becoming much more aware of these types of agreements and are often indicating that they will only pass on capital if their child enters into such an agreement with their partner. It is appreciated that these agreements are “unromantic” but so is a fully contested financial application within divorce proceedings if the parties subsequently separate and cannot agree that the pre-acquired/inherited/gifted capital should not be shared.
Historically, when parties separated, the court had to make orders as to which parent the child would live with and which parent they should spend time with. These were known as custody and access orders. In 1989 the Children Act sought to change that and brought in the principle that a court should only make an order if it was in a child’s best interests to do so. This remains the case now although the orders (amongst others) are now known as child arrangements orders which better reflects the reality. The court is very firmly of the view that parents should try to reach agreements between themselves about the arrangements for the children and would much prefer parties to try alternative dispute resolution such as mediation. Certainly, from a child’s perspective, where parents can be civil and agree arrangements between themselves and without the animosity that often arises, it removes a significant degree of anxiety for the child.
It is, however, appreciated that parties are not always able to see eye to eye particularly when there is a significant amount of anxiety and turmoil going on elsewhere, e.g. resolving divorce/finances, and in those circumstances, the court will still try to actively resolve issues without contested hearings, even if it still requires putting arrangements into an order to put a framework in place.
Family law will continue to evolve and change and will never be dull that is for sure. Certainly, I can say that in 30 years, there has never been a dull moment in my daily practice and I am sure that will long continue.
Call Tilly Bailey & Irvine’s Barnard Castle Solicitors on 01833 638 326 to arrange an appointment.