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Cohabitee crisis – a long and winding road

Earlier this month the UK Parliamentary Committee on Women and Equalities took evidence on the seemingly intractable and perennial problem of cohabitees’ rights. Or, rather, the distinct lack of them. One in four families now consists of cohabiting couples. Shockingly, …

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Family lawyers raise concerns about new transparency proposals

The long-awaited transparency in family courts review has been published resulting in “revolutionary and far reaching” proposals. First published on eprivateclient, you can view the full article here. You may need a subscription to access the full article.

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The President of the Family Division and Head of Family Justice’s formal guidance on compliance with Family Court Child Arrangement Orders

The government’s stark message to “stay at home” has undoubtedly caused much confusion and concern for parents in shared childcare arrangements with their ex-spouses/partners. The government has provided some guidance to parents who find themselves in this predicament and has confirmed that as of 24 March 2020 where parents do not live in the same household, children under 18 can be moved between their parents’ homes.The President of the Family Division and Head of Family Justice issued formal guidance on this on 24 March “Guidance on Compliance with Family Court Child Arrangement Orders” which can be found below. Of note, this guidance explains that whilst an exception to the mandatory ‘stay at home’ requirement has been granted for children under 18; it does not, however, mean that children must be moved between homes. “The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.” The key message appears to be that where restrictions due to coronavirus cause “the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.”Collyer Bristow have also considered the challenges of Co-parenting and Coronavirus and have produced “10 top tips for co-parenting in these unprecedented and challenging times.”  The article can be accessed here: https://collyerbristow.com/shorter-reads/the-challenge-of-co-parenting-and-coronavirus/

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Justice for the few

So the outgoing President of the Family Division is throwing in the towel on access to justice, unless you have money. How depressing. There have been many straws in the wind – such as his enthusiasm for rolling out the online Family Court. The President has talked previously about people not being able to afford to travel to court so online access to justice can do the job instead. Apparently. Relying on one-size-fits-all online advice is quite dangerous, by the way, made worse by users being lulled into a false sense of security in thinking they’ve avoided all the pitfalls. Now the President is encouraging the use of private FDRs. FDR stands for Financial Dispute Resolution and is a useful judge-led stage in the court process when a judge acts as a sounding board to tell the couple in front of him how he’d deal with their financial dispute if he’d been their trial judge. If they don’t settle, he has no further involvement in the case.   It worked well for a number of years but the chaos in the courts (no judge/no court file/hanging around all day at court and being told at 4pm that there isn’t going to be a judge) has already prompted lawyers acting for wealthy clients to appoint a good well-prepared, usually ex-judge, to give clients this non-binding indication. They pay him or her, choose a private location (not in a public waiting room with three other families, or crouched around their files in the stairwell to get a bit of privacy) and it’s often successful, leading to an agreement that’s then approved by an actual sitting judge. Good for them. But it’s an indication of failure, not innovation.This is the sub text:1.  The courts are incapable of delivering justice to the public because of the catastrophic cuts to the Ministry of Justice budget. And that includes the decimation of legal aid so that those who can’t afford lawyers have no hope of getting proper advice and representation and their cases take up far more time when they do get to Court.2.  Those who have money can afford to buy access to justice. Although money has always given an edge to those in possession of it, there’s no longer any attempt to hide it.Imagine Matt Hancock, Secretary of State for Health, announcing enthusiastically that people can sign up to BUPA and take themselves off to private hospitals for privately paid operations. Because each operation paid for privately would “free up NHS resources to deal, sooner or more fully, with minor and more serious operations that demand the skills of a surgeon employed by the NHS”. Precisely. 

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Law Commission to Review Law on Surrogacy

The Law Commission has this week announced that it will be conducting a full review of the law relating to surrogacy arrangements as part of its 13th Programme of Law Reform.Surrogacy describes a situation where a woman bears a child on behalf of another person or people. Historically this has tended to be for reasons of health or infertility, although in recent years it has also become an increasingly popular option for gay couples, as same-sex relationships have become increasingly recognised, accepted and finally legitimised in society and the law.The current laws on surrogacy are woefully out of date and were created in a completely different social and political landscape. As a result the court frequently struggles to make the necessary orders (which are almost inevitably in the best interests of the children concerned) in a way that is not inconsistent with the inflexible language of the existing statute. There are also some rules that seem inexplicable by modern standards, such as the prohibition on single people obtaining a parental order, and a need for a proper policy debate about whether commercial surrogacies should be allowed in this country.The Collyer Bristow family team have long supported the formation of ‘alternative’ family structures and are delighted that this issue will now receive the attention it deserves. In recent years we have seen many people feel compelled to look abroad for surrogacy opportunities and we hope that by simplifying and modernising the process it will become far easier for those who need to go down this route to have the family they so want.

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Special treatment – how can I get a “quickie divorce” like Billie?

Pretty much every celebrity divorce story talks about their “quickie divorce”, granted in just 50 seconds. How can it be that celebrities can fast-track their way through the process when everyone else has to slog it out for months or years?Fortunately, at Collyer Bristow we’re used to doing divorces for the rich and the famous, so we know all the tricks to get you on that fast train to separation, oh yes we can!*********And there could end the sales pitch, except unlike the Mail we’re not here to wow or mislead you. Today, we’re myth-busting. Oh yes.And the reality is this: the “quickie” process is the standard procedure used in all undefended cases, which make up 98% of divorces.98%!So pretty much anyone you know who is divorced had a quickie divorce. Not so superstar after all. In fact, the only time you don’t get to have a quickie divorce is when the respondent disputes the divorce (or the evidence relied on in support). That is almost never a fight worth having.So chin up if you’re getting divorced – it turns out you’re probably getting the Billie Piper service after all!

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Two year study shows divorce laws are not fit for purpose

A report by the Nuffield Foundation, published today, has found that the current divorce laws in England and Wales incentivise people to exaggerate claims of ‘behaviour’ or adultery to accelerate their divorce, often to the detriment of their ongoing ability to coparent their relationship and making the emotional impact of divorce worse.The study of nearly 600 real-life divorces found that the existing rules for fault-based divorce were divisive, unclear and not properly applied by the court.  It also found that the requirement to demonstrate fault (which is required for those who wish to divorce within two years of separation) was not succeeding in protecting marriage or deterring divorce and simply made the process unnecessarily traumatic.The report will provide further ammunition for groups, such as Resolution, who are calling on the government to introduce “no fault” divorces for those who have simply grown apart.

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Courts Head sets out next steps in digitisation of family justice

The Court and Tribunal Service (HMCTS) is now entering into ‘phase 2′ of its digital transformation process.While many lawyers remain cynical about any government-funded IT project within the justice system, and while there are legitimate concerns still to be addressed about access to justice, there is no doubt that Susan Acland-Hood is driving a strong reform agenda designed to bring the court system into the 21st century.’Phase 2’ is expected to last 18 months, meaning that by early 2019 we can expect to see uncontested divorces conducted entirely online and, more ambitiously, it is being suggested that uncontested financial settlements could be resolved online as well.A considerable amount of effort also seems to be aimed at ‘public law’ children cases (considering whether to take children into care) with developments that could eventually be rolled out elsewhere, including a digital document management system that might one day see all courts go entirely paper-free.We’ll be keeping an eye on this one with interest…

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Lies, Damned Lies and Divorce

You may have seen many commentators, the BBC included, reporting this week that divorces were up in 2016 by 5.8% – “the biggest year-on-year rise since 1985”!There is no real news here at all.  Divorces in 2015 were at their lowest since 1971 and were an unexpected 9% drop on 2014 – the 2016 figure was just a reversion to the mean. The reality is that divorce numbers have been dropping pretty steadily from a high of 165,000 in 1993 to 107,000 in 2016.Also, the claim that “the number of divorces last year in England and Wales was the highest since 2009” is simply wrong. The data shows the number of divorces was as follows:2016 – 106,9592015 – 101,0552014 – 111,1692013 – 114.7202012 – 118,1402011 – 117, 5582010 – 119,5892009 – 113,949So 2016 had the highest number of divorces since, er, 2014. Oh.It seems that divorce, as with so many things in life, is plagued not only by lies and damned lies but by statistics too.

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Retiring family judge uses final speech to slam legal aid cuts

Mr Justice Bodey has used his valedictory speech to highlight the extent to which legal aid cuts made in 2013 have impacted many people’s ability to achieve justice for themselves or the children in the family justice system.Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, legal aid has no longer been available to litigants in matrimonial finance or private children law cases other than in a small number of cases featuring domestic violence.  As a result, many of those most in need of proper support are left to navigate their way through the family justice system without any advice or understanding of what is expected of them.As Bodey J highlights, this has a knock-on effect both on judges and on the chronically underfunded court system, with poorly informed litigants in person clogging up the already rusting wheels of justice.At Collyer Bristow we now circumvent this mess as far as possible by directing our clients into arbitration and private FDRs – essentially BUPA to the court’s NHS.  That’s great for our clients, but it shouldn’t have to be that way, and in some ways it will exacerbate the problem by creating a true two-tier system, with private justice for the well off and a barely functioning system for everyone else.Family lawyers are almost universally rallying around Bodey’s comments. In my view it’s unlikely, however, that the message will get through to those holding the purse strings.

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