How the UK-EU divorce could impact divorcees

The Law Society has issued guidance for its members on the effect of a no-deal Brexit on family law. The future is unclear, and the UK faces a loss of protection for some vulnerable parties, including the victims of domestic violence.

The president of the Society, Christina Blacklaws, told the Law Gazette last month that “there is little doubt that resolving disputes will become much more complex and much more costly.”

On the subject of divorce, the Law Society predicts that after a no-deal Brexit, unless the states involved in a multi-national case are members of the Hague Convention on divorce, there could be conflicts of jurisdiction and parallel proceedings, which would be more expensive for the parties involved.

Currently, if you are the victim of domestic violence or harassment, and a national court has issued a civil law protection order in your favour, this will be recognised and enforced anywhere in the EU. The UK plans to repeal the Regulation which controls this, and it is unclear what the government intends to do to ensure UK judgments are respected in other EU states post-Brexit.

It is possible that the UK could negotiate deals with individual EU states on family law matters, but this will require the authorisation of the European Commission. The UK has also disclosed that it intends to negotiate a treaty with the EU on issues relating to civil justice and cooperation in family law, which the Law Society has stated it would encourage.

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Former top judge calls for the ban on commercial surrogacy to be lifted

Last week, Sir James Munby, the former President of the Family Division of the High Court of England and Wales, told the Mail on Sunday that he believes the ban on paying women to be surrogates should be lifted.

While it is legal for surrogates’ reasonable expenses to be paid, it is currently illegal to pay a woman to be a surrogate under the Surrogacy Arrangements Act 1985. The law in the UK is therefore different to that in multiple foreign countries. Commercial surrogacy is legal in some US states, where the cost of commercial surrogacy generally ranges from $112,000-$146,500, according to Sensible Surrogacy, an American surrogacy programme.

Commercialising surrogacy raises important ethical questions, including whether or not it commodifies surrogates’ bodies. On the other hand, lifting the ban may increase the number of available surrogates, and so enable more families to have children.

Sir James cited a change in society which he believes legislators should adapt to, and said that he is in favour of a system of better regulation, rather than prohibition. Surrogates’ expenses typically range from £12,000-£18,000, and Sir James believes that it is difficult for a judge to determine what a ‘genuine expense’ really is.

Sir James also emphasised the importance of enabling older women to have children, and said that the increase in life expectancy justifies allowing women in their 50s and 60s to become mothers. Kim Cotton, the first surrogate mother in the UK, told the Independent in 2017 that she “couldn’t imagine not being able to have children”.

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World Cup success brought spike in domestic violence

Evidence from the National Centre for Domestic Violence (NCDV) suggests that reports of domestic violence increased sharply during the 2018 World Cup tournament, despite England’s success. The charity received 2,619 reports of domestic violence between the 1st and 10th July this year – an increase of 500 when compared with a similar 10-day period before the competition began.

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Divorce rate at its lowest in over 40 years

The divorce rate among opposite-sex couples in England and Wales is at its lowest since 1973, according to new research from the ONS. Only 8.4 per 1,000 married couples got a divorce in 2017, a decrease of 5.6% compared with 2016.

The ONS publication, which was released yesterday, looks at a number of factors which can influence the divorce rate, such as:

  • age of divorce
  • duration of marriage
  • opposite-sex v same-sex divorce rate
  • reason for divorce

Average age of divorce in England & Wales

In 2017, the highest divorce rate for opposite-sex couples was among men between the ages of 45 and 49 (average age of 46.4), and women aged 40 to 44 (averaged at 43.9). Following a pattern that has remained unchanged since 2014, women are still more likely to divorce before the age of 45 while men divorce more than women at an older age. The report states that age is closely linked with the risk of divorce, believing that those who marry in their teens and early twenties are at a much higher chance of entering into divorce at a later stage in life. Against 2016’s statistics, the divorce rate in 2017 has fallen across every age group for both men and women except those aged 60 and over (a figure which has remained the same at 1.6 per 1,000 couples).

Duration of marriage

The mid-point of all durations of marriage in England and Wales in 2017 has increased slightly from 12.0 years in 2016, to 12.2 years. This figure has matched that of the historical high 12.2 years in 1972 according to the statistics.

Same-sex couple divorce rate rises

Despite the fall in opposite-sex divorces, 2017 saw a spike in divorces among same-sex couples. It was reported that there were 338 same-sex divorces in England and Wales – three times more than in 2016 (112 divorces), with 74% of those divorces happening among female couples. Following the same pattern of opposite-sex couples, (in which women divorce younger than men and vice versa), the average age at which a same-sex couple divorced in 2017 was 38.3 years old for women, and 42.0 years for men.

Reason for divorce in England & Wales

With 62% of all divorces being petitioned by the wife in opposite-sex couples in 2017, 52% of these were on the grounds of ‘unreasonable behaviour’. This has been the most common ground in which wives have petitioned a divorce since the 70’s. It has also been the most consistent reason for husbands since 2006, with 37% claiming unreasonable behaviour in 2017. The ground of unreasonable behaviour for divorce was even higher among same-sex couples: 83% among women stated unreasonable behaviour while 73% of divorces among men were petitioned on this ground.

The study also noted that the fall in divorce rates could be influenced by behavioural and attitude changes towards marriage, with many couples now choosing to cohabit rather than enter into marriage. This was seen previously – between 2003 and 2009 – when the decline in divorces was consistent with the decrease in marriages.

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Widowed Parents’ Allowance declared incompatible with ECHR

The UK Supreme Court has announced that it considers the Widowed Parents’ Allowance to be incompatible with Article 14 of the European Convention on Human Rights (ECHR), on the basis that it requires claimants to have been married to their spouse and offers no protection to unmarried couples.

This has come to light after an unmarried mother from Northern Ireland – Siobhan McLaughlin – was refused bereavement payments following the death of her partner who she had four children with. Ms McLaughlin has now won a ruling from the Supreme Court that such legislation breaches human rights law.

Article 14 of the Convention offers protection from discrimination on the basis of a number of factors – including sex, race, birth or “other status”, which could be interpreted to mean marital status. Since Article 8 of the Convention also grants the right to a private and family life with which public authorities should not interfere, it stands to reason that those who choose not to marry should not be discriminated against for that private choice. However, the legislation surrounding Widowed Parents’ Allowance – which grants bereaved parents a maximum weekly sum of £117.10, depending on their spouse’s National Insurance contributions – states that one must have been married to, or in a formal civil partnership with, the deceased at the time of their death in order to claim the benefit. This has been found to discriminate against unmarried people and has resulted in their families missing out on vital financial support during an extremely difficult time in their lives.

As the number of marriages across the UK falls, and more couples choose to cohabit, the government now faces the prospect of changing the Widowed Parents’ Allowance to grant protection to unmarried people and their children.

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Government childcare voucher scheme is closing to new members

Parents are being reminded to apply for Childcare Vouchers as the scheme will be closing to new members as of 4th October 2018. The system which was first introduced in 1989 allows parents to buy childcare vouchers through their employer before tax and national insurance are deducted.

What is the tax-free childcare scheme?

Launched by the government in 2017, the Tax-Free Childcare (TFC) scheme will replace the current system of Childcare Vouchers. Under the new scheme, parents cannot claim universal credit or tax credits alongside TFC, something they were able to do under the old system.

Analysis from the Childcare Voucher Providers Association (CVPA) suggests most families will be worse off as a result of TFC as opposed to the Childcare Vouchers scheme. A spokesperson said:

“There are currently over 600,000 users of childcare vouchers, and the scheme has helped well over a million families to afford high-quality child care since 2005. Over 50,000 employers, employing 15 million people, offer childcare vouchers.”

“We urge all parents that are considering joining the Childcare Voucher scheme to do so ahead of their relevant payroll deadline.”

Childcare Vouchers vs TFC

  • According to, Childcare Vouchers benefit couples where one parent does not work or those who spend less than £9,336 per year on childcare. High earners also benefit from the old scheme as those earning above £100,000 are ineligible for TFC.
  • TFC will help the self-employed who are unable to claim Childcare Vouchers under the current system. Parents with more than one child and high childcare costs will also favour TFC as they can receive up to £2000 per child. Childcare Vouchers are not an option should you be in a couple who earns less than £100,000; however it does mean you are eligible under the Tax-Free Childcare scheme.

CVPA Chair Jacquie Mills said:

“We strongly advocate keeping Childcare Vouchers open alongside TFC beyond October to give parents a comprehensive and flexible support package, upon which they can make an informed choice about the childcare support that best suits their needs”.

“We remain committed to working with the government to achieve this as the Childcare Voucher scheme is an essential lifeline for many parents.”

To qualify for childcare vouchers, parents must have purchased their first voucher by the deadline in October. They can only be claimed through employers, who typically need a months notice.

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Supreme Court rules unhappy marriage is not grounds for divorce

Supreme court judges ‘reluctantly’ upheld a previous family court ruling that Tini Owens, 69, was unable to divorce husband of 40 years, Hugh, who refuses to split. This particular case has highlighted the need to reform family law in the UK and introduce a ‘no-fault’ divorce.

The Divorce Process

Current law in England and Wales states that unless there is evidence of adultery, unreasonable behaviour or desertion, then a divorce will only be granted after spouses have either:

  • lived apart for five years, or
  • lived apart for two years if both parties consent to the divorce.

Upholding the previous ruling, Supreme Court Judge Lord Wilson said:

“The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being.” He noted that Mrs Owens would be eligible for divorce but not until 2020 – when five years had passed since the couple separated.

Lord Wilson added that “Parliament may wish to consider whether to replace a law which denies Mrs Owens any present entitlement to a divorce in the above circumstances.”

Nigel Shepherd, former chair of Resolution – an organisation who intervened on Mrs Owen’s behalf – echoed the judges’ sentiment:

“Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.

“In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name.”

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Restricting Civil Partnerships to Same-Sex Couples Breaches Human Rights

The Supreme Court has recently ruled that the UK Government’s ban on civil partnerships for different-sex couples in England and Wales is discriminatory and in breach of human rights.

Case Background

The case had been brought by a couple who are in a heterosexual relationship that they want to formalise. They have ideological objections to the institution of marriage and instead sought the right to enter into a civil partnership.

However, when the Government introduced the Civil Partnership Act 2004 (CPA), it only applied to same-sex couples. Several years later, the Government gave same-sex couples the right to marry under the Marriage (Same Sex couples) Act 2013 (MSSCA) but chose not to repeal the CPA, which meant that same-sex couples have the choice of two options to formalise their relationship – marriage or civil partnership. However, different-sex couples only have the option of marriage.

Rebecca Steinfeld and Charles Keidan therefore sought a judicial review of the Government’s continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships. Their claim made its way to the Supreme Court, after being dismissed by the High Court and the Court of Appeal.

The case hinged on whether the couple’s rights under the European Convention on Human Rights (ECHR), and in particular their rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life), were being breached by the ban on them entering into a civil partnership.

Supreme Court Judgment

In its judgment, the Supreme Court noted that the Government has accepted that there was an inequality of treatment between same-sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The Government also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA).

The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination.

It has now made a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR.

It is worth highlighting that a declaration of incompatibility does not oblige the Government or Parliament to take any action. However, the judgment is likely to add to growing pressure on the Government to change the current law.

Reaction to the Ruling

The Supreme Court’s judgment has been welcomed by organisations with an interest in family law.

Chris Sherwood, Chief Executive at relationship support charity, Relate said:

“The law has failed to keep up with societal need when it comes to our rights around relationships. The Supreme Court’s ruling on civil partnerships is a step in the right direction and will put pressure on the government to change the law but what we need is a review of our whole legal system.

“It’s astonishing that in 2018 we still have a fault-based divorce system which encourages inter-parental conflict and that cohabiting couples have so few legal rights. The way we structure our relationships is changing and if we want our legal system to be truly fair and equal these issues also need to be addressed.”

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Child Law Partnership delighted to announce Lexcel Accreditation

The team at CLP are proud to have achieved Lexcel accreditation, recognising our commitment to client satisfaction and high-quality practice management standards.

Lexcel is an accreditation scheme specifically for the legal sector, which is operated by the Law Society of England and Wales. As part of the application process, our firm had to complete a thorough assessment process, including a site visit from an independent Lexcel assessor. Various aspects of our firm were scrutinised, from information management to file and case management. At the end of the assessment process, our firm was credited with excellence in legal practice management and client care.

With Lexcel accreditation our clients and employees can have the confidence that our operations are consistent and efficient, and put their best interests first.

Philip Bennett Director of CLP said: “We place considerable importance upon identifying, reviewing and updating our policies and procedures to ensure that we meet the standards expected by the Law Society’s recognised accreditation scheme. We have already seen the benefits both to our clients and to the firm in terms of greater efficiency, productivity and the delivery of value for money services. We are thrilled to have been accredited and that all of our staff are able to demonstrate that we meet the standards required”.

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