Five trends in family law

The legal landscape regarding family law proceedings is ever-changing as the legal system adapts to the demands and needs of modern families and individuals. Changes to legislation aim to maintain equality and fairness through divorce proceedings and to attempt to make the legal system easier to access and easier for matters to be resolved.

Director David Connor, who heads WHN’s family law team, outlines the latest trends he saw in 2024 in family law proceedings.

Don’t assume financial assets will be equally split on divorce

When couples divorce, it may often be difficult to resolve how assets are split. Section 25 Criteria in the Matrimonial Causes Act sets out a wide range of considerations including income, earning capacity, property ownership, financial needs, obligations and responsibilities.

It also includes determining the standard of living, age of the parties and any physical or mental disabilities and the duration of the marriage. Resolution will also be determined by the contributions made or likely to be made by each party, their conduct (albeit in very rare cases) and the loss of any benefit such as pensions one party may lose the chance of acquiring.

The courts have dealt with numerous financial remedy cases over the years and the principle in all cases is to achieve fairness. This involves determining whether, an equal division of the assets will meet the needs of both parties.

However, there can be exceptions to an equal division of assets. This may be, for example, a wife caring for children needs a house and does not have the assets or income to support a mortgage.

Another example is where unmatched financial contributions were made within the marriage. Pre-marital assets, gifts and inheritances can also problematic.

The question of whether a property is categorised as matrimonial or non-matrimonial is also important.

There is one arm of thinking that suggests it is a division of the matrimonial assets that the court must initially consider. But they can only look at non-matrimonial assets if a question of needs of either party or children arises.

The Law Commission is carrying out a review of the current legislation and will report on whether the law should be changed in this difficult and factually challenging area of law.

This is a complicated area of law. Seeking specialist legal advice at an early stage is highly recommended.

Do I need to pay spousal maintenance to my ex-partner following divorce?

The misunderstanding of cohabitating couples’ rights on separation

More and more, couples are living together for longer periods of time before marriage, or not marrying at all. This does pose a problem if they then separate and assume to have certain rights. There is no rule that exists to say that a couple who have been living together for a long period of time have a common law marriage, or that cohabiting couples on separation can share the assets that have been accumulated during the relationship.

Under these circumstances, there is provision for child maintenance but not inter-party maintenance. For many years there have been indications from political parties that the law needs to be considered in this area as it does not produce fairness nor fit in with modern family values.

Cohabiting couples have certainly been on the rise for many years but under existing law, on divorce or separation, only married couples benefit from the ability to share assets, deal with property, have pension sharing orders, have maintenance orders and have orders that deal with payment of liabilities.

Cohabiting couples must rely on existing trust law or general property law which can be extremely strict in the way it is interpreted and is not based upon fairness of outcome.

How to protect your assets if you’re cohabiting with a partner

Cohabitation: what are my rights?

Expecting a quick resolution to agree contact with children during holiday periods

Separated parents, who cannot agree holiday arrangements, can find it a particularly difficult and stressful time. The courts can determine how much time children spend with each parent over a holiday period and will look at what is in the best interests of the children in reaching these decisions.

With significant numbers of cases running through the court at any one time, it can take quite some time for cases to be heard. Therefore, parents who cannot agree holiday arrangements need to realistically be seeking legal advice and resolution at least three or four months prior to the holiday period.

Dealing with cases concerning children requires a thorough understanding of the law and the impact disputes have on the children.

What are my options for agreeing school holiday arrangements with my ex-partner?

Recognising the power of prenuptial agreements

Prenuptial agreements prior to marriage are important to people who have inherited family wealth, have children from a previous relationship or have significant business interests. Although the term ‘prenuptial’ is the most common type of agreement, it is equally possible to enter an arrangement after marriage in a post nuptial agreement which has the exact same effect.

While prenuptials are not automatically binding, they are becoming more prevalent, and courts are taking them into account when considering a contested case. Parties who have entered into prenuptial agreements, under legal guidance and with full knowledge of what it is that they are agreeing, need to be aware they should enter those on the basis that they may well be held to those agreements.

The Law Commission is currently reviewing the financial laws governing divorce and the dissolution of civil partnerships. This review could bring significant changes to the legal status of prenuptial agreements in UK family law. The Commission’s recommendations may pave the way for ‘qualifying nuptial agreements’ that are legally binding, provided they meet specific criteria.

See also:

Do I need a nuptial agreement?

Regret not getting a pre-nup? Why a postnuptial agreement is right for you

Is mediation obligatory?

Before issuing an application for any Children Act matter or financial remedies, the court rules say that the divorcing parties involved must have at least attempted mediation. This means at least one party must have attended a mediation information and assessment meeting.

If that party is deemed unsuitable for mediation or does not feel that mediation is right for them, the application can proceed without mediation.

It is often questioned and debated to what extent can a court require parties (whether they want to or not) to take part in ‘out of court’ dispute resolution processes, which includes mediation.

The court can lawfully bring proceedings to a temporary conclusion or order parties to engage in non-court-based resolution processes. This is provided that such an order does not impair the claimant’s right to proceed to a judicial hearing and was seeking to achieve the legitimate aim of settling the dispute quickly and at reasonable costs. Under these circumstances, it is still not clear the principles about whether proceedings should be delayed or not.

This means that courts can delay proceedings and require parties to engage in mediation in certain circumstances. If mediation fails, then the case will continue. The court clearly encourages parties to try and resolve disputes without the need for judicial intervention wherever possible. Divorcing parties need to understand whether the stance they take may result in such a referral.

David Connor is a director based at WHN’s Rawtenstall office. He leads a team of specialist family lawyers, helping individuals on all areas of family law including complex financial cases including pre-nuptial agreements, financial settlements in divorce and separation.

If you need help on a divorce and finances matter, our specialist solicitors are here to help. Please contact David on 01706 225621 or by email [email protected]