Family law isn't very civil

The Divorce Dissolution and Separation Bill, which would introduce no-fault divorce, has been working its way through the House of Commons. However, the impending prorogation of parliament and likelihood of a general election in the near future now makes it unlikely that it will become law. Any legislation that has not received the Royal Assent in time fails and reformers will have to start all over again following the election of a new Parliament.

Hopefully this delay will be temporary. There is cross-party support for the bill and the new government, whatever its complexion, ought to introduce the bill again. However, there are other areas where family law needs further reform.

I am not referring to Baroness Deech’s divorce finance bill which is also currently going through the House of Commons, having already been passed by the House of Lords. This will also fail as a result of an election. Unlike the no-fault divorce bill, this does not have anywhere near as much support among lawyers, nor does it have government backing or any cross-party support. I have blogged here about the problem with the Deech reforms. It is not expected to become law.

Nor am I referring to the Domestic Abuse Bill which would for the first time introduce a statutory definition of domestic abuse and prevent alleged abusers from personally cross-examining their alleged victims. These are areas where new legislation is needed and hopefully new bills will be passed by a new parliament.

What I am referring to is the current unsatisfactory state of the law in relation to unmarried couples, where there is no current attempt to introduce reforms. Far too many people assume that by simply cohabiting, as a “common law spouse”, they somehow magically gain the same or similar rights to married couples. In fact, there is no such thing in English law as common law marriage. The way in which the court deals with financial disputes between unmarried couples is incredibly different to the way in which it deals with financial disputes between married couples who are divorcing.

In a divorce, the court has enormous discretion about how it can divide a couple’s income and assets between them in such a way as to achieve fairness and to meet the parties’ needs and the needs of their children. In contrast, in an unmarried couple case, the court has far less discretion about how to divide the equity in a property. This means that often the outcomes are simply not fair.

The Office for National Statistics has recently reported that the number of cohabiting couple families is growing faster than married couple families, up 25.8% over the decade. Even the Prime Minister and his girlfriend are cohabiting, along with 3.4 million other couples. It is frankly disgraceful that the law does not meet their needs.

Many family practitioners feel that reform is needed. But, what sort of reform?

I do not believe that if you simply cohabit, you should gain the same rights as a married couple. However, I don’t think the current system achieves justice. Cohabiting couples are entitled to a just outcome just as much as married couples. The current law is vague and unfit for purpose. Sensible proposals for reform of the law were made by the Law Commission in 2007, but after some initial government support for change, it was quietly put on the back burner and forgotten.

Reforming cohabitation law will no doubt be a tricky political issue for some. I doubt that reform would find much favour on the Conservative backbenches, the more noisy and right-wing members of whom will claim that reform weakens marriage. My view is that the law should reflect society rather than trying to shape it, at least in this area.

One thing that could very easily be changed is the procedure for resolving disputes between unmarried couples. This will not involve a change in the law that affects what unmarried couples will receive if their relationship ends, nor could it conceivably lead to an increase in cohabitation or a weakening of marriage. When I talking about is the need to adopt a better procedure.

At the moment, an application to the court for an order that the house be sold and/or a declaration as to whether or not one party has a beneficial interest in the property are made under the Trusts of Land and Appointment of Trustees Act 1996, (often abbreviated as TOLATA). This is treated as a matter of civil law, not family law. It is therefore governed by the Civil Procedure Rules 1998. CPR 1998 no doubt has its merits, but it is not designed to be used in family cases. It is designed for civil disputes such as personal injury claims, commercial litigation, debt recovery or defamation. For reasons which I cannot fathom, TOLATA claims between unmarried couples are not covered by the Family Procedure Rules 2010.

FPR 2010 is a set of court procedures specifically designed for family cases. There are a number of reasons why it makes no sense at all for TOLATA claims to be dealt with under CPR 1998:

? Pretty much every other type of family litigation is dealt with under FPR 1998.

? As it is a civil matter, the application has to be made by way of a civil claim in the County Court, not the Family Court. In practice, a district judge in the County Court is also a district judge in the Family Court, but this does lead to a strange anomaly. TOLATA claims are often dealt with at the same time as an application for financial provision for a child under the Children Act 1989, Schedule 1. Children claims have to be dealt with in the Family Court. Both applications need to be dealt with at the same time and therefore the district judge has to effectively wear two hats (or perhaps it should be better regarded as two wigs, were it not for the fact the district judges rarely wear wigs in the Family Court). That leads to a clash; which procedure should be used? Civil procedure or family procedure?

? Even in cases where there is no Children Act application, it is commonplace for district judges to attempt to adopt a form of family procedure in TOLATA claims whereby they hold a hearing which bears a striking resemblance to a financial dispute resolution appointment (FDR). An FDR is a hearing used in divorce financial proceedings where if the parties cannot reach an agreement, they can ask the judge to give an informal indication of the likely outcome if the case was to proceed to trial. The indication isn’t binding and it is confidential so if the matter does go to trial, the trial judge is not allowed to know what the FDR judge indicated the outcome should be (something which recently caused enormous and very embarrassing problems in a trial being heard by Mr Justice Holman).

An FDR is an excellent way of encouraging parties to reach an agreement at a relatively early stage and avoid the cost and risk involved in going to trial. However, one difficulty with an FDR as it is not particularly well designed for resolving binary disputes. For example, at an FDR, the district judge cannot use it to resolve factual disputes merely to indicate what the court might do once the facts have been ascertained. In TOLATA claims, there is often a factual dispute about who may or may not actually own the property.

? There is also the problem that TOLATA claims will usually be handled by family litigators and the CPR 1998 is not particularly familiar territory for them. It has a reputation for being far less forgiving than FPR 1998. In civil cases, if you don’t take certain steps in proceedings on time, there can be very expensive consequences. In contrast, in family litigation there is a somewhat more relaxed attitude towards things like late filing of witness statements and other documents. Civil litigators may consider family litigators to be somewhat lax in this regard. However, in family litigation, the parties are always private individuals, unlike in civil proceedings where they can often be commercial entities; I think you then need to be a little bit more relaxed and realistic about things like deadlines, especially when you consider how many family cases involve parties who represent themselves.

? There is also the possibility that family litigators may encounter civil litigators in these types of cases. This can be an unfortunate experience; most family lawyers will be members of Resolution and will abide by its code of practice which says that even in litigation cases, we must conduct matters in a constructive manner. In my experience, civil litigators are much more likely to take an aggressive stance believing in victory at all costs, rather than adopting a family litigator’s approach that the couple should be allowed to end their relationship with dignity and that compromise is important.

Alexander Chandler, a barrister who specialises in TOLATA claims says that family litigators encountering civil litigators "can be like the Pilgrim Fathers meeting the Native Americans for the first time: one struggles to have any idea what the other is talking about”.

The inadequacy of CPR 1998 when dealing with family claims is yet another reason why court proceedings should be avoided. One excellent alternative to going to court where there is a dispute which cannot be resolved by negotiation or mediation is to use family arbitration.

In family arbitration, the solicitors will jointly appoint a specialist family arbitrator (either specially trained solicitor or barrister or a retired judge). The parties will enter into an agreement committing them to abiding by the decision of the arbitrator. The arbitrator will then apply the law in exactly the same way that a judge would in a County Court, and the arbitral award can be enforced through the court just like a court order.

Arbitration has a number of advantages. For a start it is going to be much quicker than the court which is invariably clogged up with cases of all types. Furthermore, the parties can agree what procedure they will use (and if they have any sense, they will shy away from using anything that resembles CPR 1998). As it is going to be quicker, and as it uses simpler procedure, it will therefore be cheaper than going to court.

Even if the rules were changed and TOLATA claims started to be dealt with exclusively by FPR 1998, family arbitration is probably still a far better option than court proceedings.

Arbitration gives couples the same outcome is going to court, but it is quicker and cheaper. You would therefore think arbitration was commonplace in these types of cases but unfortunately, family arbitration is extremely rare. The main reason for this appears to be reluctance amongst family practitioners to use it. Solicitors can be very conservative with a small “c”. They don’t like new things and faced with something new, like family arbitration, many solicitors prefer to revert what they are used to and to go to court. That is regrettable and probably not in their clients’ best interests.

7 September 2019