This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
It's safe to say with the Christmas period looming, and with little idea of what that may look like this year, many people are looking forward to getting Auld Lang Syne over with, and closing the chapter on a pretty eventful 2020.
The year has thrown family life into focus like never before; with remote working, multiple lockdowns and social distancing measures, the boundaries between our professional and private lives have become increasingly blurred. But what has that meant for our relationships? And what changes to the family law landscape can we expect in 2021?
The purpose of this article is to highlight and explain some of the key changes we can expect to see to Family Law as part of the 'new normal' in 2021 and beyond.
The end of the Brexit-transitional period.
In a post-coronavirus world, the word Brexit feels almost like a relic of a bygone era. However, on 31 December 2020 the UK's transition period for leaving the EU will come to an end and there is no provision for this date to be extended. What does that mean? Well crudely put, this means that from January 2021, the UK will no longer be bound by EU rules and regulations. Brexit will indeed, finally be 'done'.
Unfortunately, the issue of what that means for family law, and in particular, divorcing couples where there is a UK-EU cross border element is less straight-forward. Whilst the clock is ticking for divorcing couples who would like to make use of the EU rules, there has yet to be any clear guidance on what the post-Brexit divorce rules/procedure will look like for international couples.
The opaque nature of the situation means that couples with ties to an EU member state who wish to make use of the England and Wales court system, or to have their divorce agreements which have been filed and finalised in the UK, automatically recognised by other member states (as is the present position), may find themselves locked in a lengthy and costly jurisdiction dispute about where their case should be heard if they delay issuing proceedings.
The already overburdened Family Courts have begun to brace themselves for a spike in divorce cases over the next 2 months, as a result of anticipated forum shopping. The UK has traditionally been seen as the "Divorce capital" of the world due to its reputation for being more generous to a financially-weaker party than other jurisdictions. If you are considering applying for divorce, and there is an EU cross-border element at play you should seek specialist advice as to which jurisdiction will better suit your needs as a matter of priority.
The Introduction of No-Fault Divorce
Hailed by practitioners, academics and those who have been through divorce proceedings alike, one of the most hotly anticipated changes to Family Law in 2021 will be the introduction of No-Fault Divorce.
What is No-Fault Divorce? Well under the current law (which has been in place and largely unchanged since 1973), the parties are required to prove that there has been an “irretrievable breakdown” of the marriage. Contrary to popular public myths, this is the sole ground for divorce under UK law.
The contentious part of that is that the ground for divorce must be proven with reference to the “five facts”, three being based on “fault” and two being based on periods of separation. In practice this means that unless a couple wants to wait for 2 years to petition on the basis of separation (with the consent of their ex-spouse), or a whopping 5 years without their consent, the divorce will need to proceed on a "blamed basis". This means that they will essentially need to blame the other party for the breakdown of the marriage, which as you can probably imagine, entails a degree of unnecessary acrimony.
The most common fact of divorce that couples rely on is what is colloquially known as "unreasonable behaviour", whereby the petitioner will allege that the respondent has acted in such a way that they cannot reasonably be expected to live with the respondent. Most lawyers will tell you that drafting a petition on this fact can be a bit like traversing a tightrope; you need to allege enough to satisfy the Court that the marriage has broken down, but you do not want to go so far that you risk inflaming your ex-spouse and losing any hope of conducting matters amicably.
The law was ripe for reform, and the cause was given fresh zeal following the case of Tini Owens. For those not in the know, Owens was a woman (then 68) who lost her high-profile appeal to the Supreme Court to be granted a divorce in July 2018. She had petitioned on the fact of unreasonable behaviour, but her husband had refused to cooperate or consent to the divorce proceedings. The Court held that she had not met the threshold for unreasonable behaviour, meaning that she would have to stay in an unhappy marriage until either 2020 (when she would be eligible for divorce on the basis of 5 years’ separation) or until the law was reformed.
The media furore that ensued from this case, coupled with the Supreme Court's criticism of the current legislation, put pressure on Parliament to effect change. And on 25 June 2020, the Divorce, Dissolution and Separation Bill received Royal Asset and became an Act of Parliament, signalling the biggest shake-up of divorce laws in over 50 years and reflecting more modern attitudes to relationship and marriage breakdowns.
What will change under the new law?
The new law is expected to come into force in Autumn 2021. The current requirement to establish either a fault or separation fact will be abolished, and instead couples will have the option to make a statement (either jointly or by one spouse) of the irretrievable breakdown marriage. The Court will no longer be required to conduct a forensic examination of the reasons for the breakdown of the marriage but will take couples at their word.
Some other key changes will be that for the first time in UK law, parties can make a joint application for divorce if they wish to. The new law will also remove the ability for one spouse to contest a divorce if the other one wants to divorce, as the statement of breakdown will be conclusive evidence that the marriage has broken down.
The nomenclature used is also set to change; whilst the 2 stage system of divorce will remain substantively unchanged (except for a change to the timetable), the Decree Nisi will be replaced with a "Conditional Divorce Order" and Decree Absolute will be replaced with "Final Divorce Order". The symbolic importance of this being that the law is moving towards a more accessible, readily understandable and user-friendly system.
Domestic abuse reform
On 25 June 2020, the government announced a major overhaul of the family courts to ensure that victims of domestic abuse and their children receive greater protections. The pandemic held a lens to the way in which domestic abuse is dealt with in the UK. The sweeping reforms which are the result of an expert-led review into how the courts handle domestic abuse, will see more victims of domestic abuse given access to separate building entrances and waiting rooms as well as protective screens to shield them from their alleged abuser in court.
The proposed reforms also include provisions to make it easier for judges to issue barring orders which are designed to preclude abusive ex-partners from repeatedly dragging their victims back to court (which can be used as a form of continuing abuse and a measure of control in itself). The changes will build on the landmark Domestic Abuse Bill, which is currently before Parliament. Whilst the Bill received its first reading on 7 July 2020, the date of the 2nd reading is still yet to be announced.
The Bill will provide for major key changes which include, inter alia, the following:
- Creating a statutory definition of domestic abuse which emphasises that domestic abuse is not limited to physical violence and includes emotional, coercive or controlling and economic abuse.
- Establishing in law the office of Domestic Abuse Commissioner and setting out the Commissioner’s functions and power.
- Placing a duty on local authorities in England to provide support to victims of domestic abuse and their children in refuges and other safe accommodation.
- Prohibiting perpetrators of abuse from cross-examining their victims in person in the civil and family courts in England and Wales.
- Providing that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance.
- As well as non-statutory commitments which include promoting and issuing guidance on relationship and sex education, and investing in domestic abuse training for responding agencies and professionals.
These are just three of the key but vitally important changes we can expect to see in the New Year. It is also hoped that the lessons learned from the coronavirus pandemic will also lead to reform in other aspects of family law, such as reforming the financial implications for cohabitating couples who have been living together in lockdown. A link to a recent blog on cohabitation and the pitfalls of the current law can be found here.
If you would like to discuss any of the issues raised above, please contact the Family team.