As we embark upon the new year it’s time to look forward to what 2022 holds in store for the world of family law.
There are certain years in the history of family law that we look back upon as a defining moment, when family law, or at least some major aspect of it, changed fundamentally.
In recent times, for example, we can point to 1969, when the Divorce Reform Act was passed, making divorce much easier to access, and leading to a huge surge in the number of people getting divorced. And then there was 1989, when the revolutionary Children Act was passed, putting the welfare of the child to the fore, and changing forever how children cases are dealt with by the family courts.
In two major ways at least 2022 promises to be one of those defining years. And just like those two momentous years from the past, the focus will be upon divorce and children disputes.
The blame game ends at last
In the biggest change to divorce law in England and Wales since that Divorce Reform Act was passed, the 6th of April 2022 will finally bring in a system of no-fault divorce.
It’s been a long road. For at least the last thirty years campaigners have been calling for the introduction of no-fault divorce. And way back in 1996 Parliament first passed legislation intended to bring in a no-fault system. Unfortunately, they made such a mess of that legislation that it was eventually abandoned, with the system never being brought in.
Thankfully, the new system is much simpler. All that will be required to commence divorce proceedings will be for one or both parties to file with the court a statement that the marriage has irretrievably broken down. The court will accept the statement as proof of irretrievable breakdown, without there being any need to attribute blame for the breakdown, for example because a party committed adultery or behaved unreasonably.
The new system also does away with defended divorces, as where the statement is filed by one party only the other party will not be able to challenge it. This at last reflects the reality that a marriage is clearly over if one of the parties wants a divorce.
The rest of the new divorce procedure will be quite simple too, although it will mean that some divorces will take longer than at present. Twenty weeks after the statement has been filed the court can make a conditional divorce order, equivalent to the present decree nisi, and six weeks after that it can make the final divorce order, equivalent to the present decree absolute. Divorces under the new system will therefore take a minimum of six months.
It is hoped that doing away with the need to attribute blame for the breakdown of the marriage will make divorces more amicable, which will in turn make it more likely that the parties are able to resolve issues relating to children and finances by agreement.
A new approach to parental dispute resolution
The other change is to the way in which the family justice system deals with parental disputes over arrangements for their children.
In a speech to the Jersey Family Law Conference in October the President of the Family Division Sir Andrew McFarlane set out details of what he called a “new approach to parental resolution”. The new approach is to be piloted early this year in North Wales and Dorset.
Investigative approach to children disputes
The pilots aim to develop a new more investigative approach to children disputes, and will include: developing ways to promote all forms of non-court dispute resolution; a less adversarial approach at court hearings; the development with CAFCASS of a ‘Child impact’ statement, so that parents can see (perhaps at an early stage) from the child what impact or effect the proceedings are having upon them; and the facilitation of more court reviews post-final order, to reduce the number of returning cases.
Family hub concept
Alongside these largely procedural steps within, or immediately around, the court process itself, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application.
The aim of the Family Hub is to draw together, and be a co-ordinating focus for, the various local agencies and organisations who are or might be involved in supporting families at a time of breakdown.
Reaching across society
The sorts of agencies involved will run from those who are already close to the Family Justice system, for example providing support for victims of domestic abuse or sexual abuse, to those working in the fields of mental health, substance misuse, housing, immigration, adoption and fostering, education, children and young and people and, more generally, health.
Following an initial assessment by a core multi-agency team, the family may be referred to one or more of the available local support services, or to mediation, or to a parenting programme or, where it is appropriate, to CAFCASS or, finally, in a clear case, to the court.
We will of course have to see how successful the pilots are, but it is clear that the President envisions that these changes represent the future for the resolution of parental disputes over arrangements for their children. If the pilots succeed, we can therefore expect the changes to be rolled out nationwide, at the earliest opportunity.