- Resolution’s family law manifesto 2015: How the law needs to change
Resolution’s family law manifesto 2015: How the law needs to change
Resolution’s family law manifesto 2015: How the law needs to change08 Jun 2015
Resolution have recently published their manifesto setting out the six things they believe the government should do to improve the law to help those who are separating and anyone else affected. Here, we respond to their suggestions based on our own experience of family law.
Protect vulnerable people going through separation
Since August 2014, parents have needed to pay a £20 one-off fee to make an application to Child Maintenance Services. On top of this, the CMS charge collection fees for people who need to use the agency to collect regular maintenance payments. Since the £20 application fee was introduced, applications to the service were down by 38%.
The 20% drop in applications to the CMS is extremely concerning. It does not necessarily mean that the problem is disappearing, or that separating couples are working together to ensure payments are made, but rather it suggests many are suffering in silence as they cannot afford to make an application.
The Child Maintenance System should be reformed to ensure children of vulnerable parents aren’t losing out. The £20 CMS application fee should be abolished, as well as the collection fees for the requesting parent, to minimise the impact on the child.
Introduce measures to help separating people reach agreements out of court
The Government has focused its attention on mediation as the only alternative to court. But for some couples, other dispute resolution options can work better for their circumstances, while keeping families out of court and minimising conflict.
Although mediation can often be extremely beneficial, there are many circumstances where it may not be appropriate. For example, if one spouse is timid, and the other more assertive, there is a danger that an unfair agreement will be reached, as the mediator cannot provide legal advice to the parties. For this reason, separating spouses should be made aware of all other available options, such as arbitration and collaborative law, etc.
MIAMs (Mediation Information and Assessment Meetings) should be renamed AIMs (Advice and Information Meetings) to make clear that they aren’t solely focused on mediation. AIMs should also be available earlier in the separation process, before an application to court is considered
Introduce a Parenting Charter to help parents understand their responsibilities when they separate
The current laws and definitions around parents’ responsibilities before, during and after separation are too complex and the language isn’t accessible.
The best interests of a child should always be the focus in any divorce; however, many parents are unsure what this means and how this can be achieved.
A ‘Parenting Charter’ should be introduced setting out what children should be able to expect from their parents if they are separating, and what separating parents need to do in the interests of their children.
Allow people to divorce without blame
In order to divorce, unless couples have been living apart for two years, one of them needs to apportion some form of blame: either adultery or unreasonable behaviour. This often creates conflict and makes reaching a mutually acceptable agreement much more difficult.
The most frustrating thing about apportioning blame in divorce proceedings is that it is totally pointless. Once the finger has been pointed, it has no effect on anything that follows, such as the financial distribution, except where there has been extremely questionable conduct (primarily financial conduct). In most cases, therefore, it only causes conflict and bitterness.
A new divorce procedure should be introduced where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.
Help people understand how divorce will affect their future finances
Divorce law relating to finances is complex and difficult to understand. People separate with little or no understanding of the financial consequence of their break-up, making it more difficult for them to reach an agreement and placing a greater burden on the court system.
More often, people are trying to make sense of finances before they marry, however prenuptial agreements are still not automatically legally binding in the UK. Even couples who enter them having taken independent legal advice aren’t able to relax in the knowledge that the court will uphold them.
Clear guidance should be given to people entering the court system, so that they are more aware of the potential outcomes and consequences. Prenuptial agreements should be permitted, with suitable safeguards, so they can provide certainty to people entering the courts that a previously made agreement will generally be binding, unless it doesn’t satisfy clearly identified criteria.
Provide at least basic legal rights for couples who live together if they separate
Currently almost six million people live together without being married or in a civil partnership. Yet these people have little or no legal protection if they separate. It is possible to live together with someone for decades and even to have a child together, and then simply walk away without taking responsibility for a former partner.
The biggest problem in relation to the law on cohabitation is that it is so undocumented. Far too many couples wrongly believe in common law marriage when, in fact, this does not exist.
A legal framework of rights and responsibilities should be introduced for when unmarried couples who live together split up, so that they have some legal protection. This would provide secure and fair outcomes at the time of a couple’s separation or on the death of one partner.
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