Financial remedies in Family Courts – a change in the wind

Families come in all shapes and sizes. Sometimes they involve marriages and sometimes they do not. Couples with children separate after living together and sometimes they become parents without ever having had a meaningful relationship. Sometimes families are from overseas, and some families are split after one of the parties dies. There are as many different financial remedies for separated families as there are families themselves. There is, however, no unified code of law or practice covering all types of relationship. Instead couples and parents have to negotiate a mine field of different laws and procedures depending upon what category of “family” they represent.

Different pieces of legislation contain different rules of law and legal principles

Married couples getting divorced are governed by the relevant sections of the Matrimonial Causes Act 1973, but unmarried couples have no access to the remedies under that legislation. They have to rely on the civil law and, where they own property, the Trusts of Land and Appointment of Trustees Act 1996. Principally unmarried couples apply under that Act for a determination of their interest in a property, possibly also an Order of Sale.

Parents who are unmarried, but have children are restricted to Schedule 1 of the Children Act 1989, where they want lump sums or funds for housing. Bereaved partners or former partners who were dependant upon the deceased at the date of death, need to turn to the provisions of the Inheritance (Provision for Families and Dependants) Act 1975, whereas those who have been divorced abroad, and need to bring claims in England and Wales, have to rely on Part III of the Matrimonial and Family Proceedings Act 1984.

Not only do each of these different pieces of legislation contain different rules of law and legal principles but many of them are also governed by different rules of practice. Some come under the provisions of the Family Procedure Rules and others the provisions of the Civil Procedure Rules. There are different rules as to costs. The differing law and procedure is specialist to each type of case and complex, even for specialist practitioners, let alone litigants in person trying their luck through the court system.

President of the Family Division set out his vision of what needs to be done to reform the law and the rules

In recognition of all this the President of the Family Division, Sir James Munby has set out his vision of what needs to be done to reform the law and the rules.
The first proposal is to have a unified family financial remedies court which deals with all types of financial remedy cases.

He wants to improve procedural justice by the appointment of specialist judges to sit in this court and a process whereby each case is allocated early to the right judge at the right level and in the right location. The President wants to see enforcement of standard directions and interim orders, and to ensure that cases are dealt with and conducted with consistency.
The President hopes that substantive justice will be helped by improving judicial training, and by the reporting of all judgments in small and medium cases to promote transparency and consistency. This transparency will hopefully result in increased predictability of outcome, which in turn should feed down to practitioners leading to a higher rate of settlement, or a reduced rate of appeals for those cases that do not settle.

The President of the Family Division cannot change the legislation which any unified financial remedies court would have to implement. Nevertheless a unified financial remedies court would at least create a more consistent and predictable forum for dealing with the financial aspects of family cases. Over a period of time it would be almost inevitable that the legal principles adopted in these very different types of cases would begin to merge, and the current jurisprudential differences between the different types of legal remedies would begin to blur.

If nothing else, the different rights and remedies available to separating couples would be contrasted so sharply that the clamber for reform and improvement would become irresistible.
The reforms proposed by the President seem so basic and commonsensical that they are very likely to be implemented. Once up and running their impact will, I predict, be far more widespread than the President probably intended. It will be increasingly difficult to justify why all unmarried couples should have to put up with inferior remedies to those who are married.