Educating the educators, policing the parents, safeguarding children? Schools and separation

Earlier this month, I answered an FT reader’s question about what happens if separated parents disagree about their child’s schooling.

It feels as though issues arising between parents on separation are becoming ever more numerous and complex, and that there is a weight of expectation on schools to be both a referee for the parents but (more important) a watching eye over children affected by parental conflict. So how widespread an issue is this for schools? What are the issues which may arise for them where parents are separated or divorced? What are/should be the extent of their responsibilities and how good are they at meeting them? And how should parents engage with the school/each other to avoid problems arising in the first place/quickly resolve them if they do?

The extent of the issue – some stats around family types and separation

Schools will interact with a number of different family types – married/civil partnered parents; cohabiting parents; separated/divorced parents; and single parent families. The first two family types can run into difficulties during/after separation and may experience some or all of the issues set out later in this blog; for the single parent families, there will not be another parent to be in dispute with, but (as with the other family types) there may be difficulties with the child which may necessitate the involvement of third parties, such as social services.

Trying to work out the number of children of separated parents is harder. The latest ONS bulletin Families and Households in the UK – 2019 was published in November – https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2019

It shows that in 2019, married and civil partner families accounted for the largest share of families with dependent children (61.4%), followed by lone parent families (22.3%) and cohabiting couples (16.3%). However, some noteworthy trends in the past decade –

  • The number of cohabiting couples with dependent children has increased by more than one-quarter;
  • The number of married/civil partner couples with dependent children has increased by 4.8%;
  • The number of lone parents with dependent children has decreased by 9.8%.

But what of separation, which is where the really thorny issues often arise?

In England and Wales, there were 90,871 divorces of opposite-sex couples in 2018 and 428 divorces of same-sex couples. https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018

Assuming (crudely) that the average family has 1.89 children, that means that around 173,000 children were affected by divorce in 2018. Note that the year prior, 2017, there were 101,669 divorces of opposite-sex couples and 338 divorces of same-sex couples, meaning that closer to 193,000 children were affected by divorce that year.

However, that doesn’t tell the whole story, as it doesn’t deal with the ending of unmarried parent relationships. We know that cohabiting couples are the fastest growing relationship type (around 3.4 million couples, having increased from 15.3% of all families to 17.9% in a decade and expected to double by 2032) and they are widely acknowledged to be a less stable form of union than marriage/civil partnerships. However stats for the ending of cohabiting relationships are hard to come by as there is no interaction with the state when a cohabiting relationship ends, save to the extent any financial orders are made for children or child arrangements orders.

What we do know is that births within marriage/civil partnerships have gone down significantly in recent decades, reflecting the decrease in marriage numbers and increase in cohabiting couple families https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsbyparentscharacteristicsinenglandandwales/2016

As of 2016 (the most recently available statistics), only just over half of births were within married/civil partnered relationships, compared to just under 80% 30 years ago. Given what we know about cohabiting relationships being less stable than marriage, it can be surmised that at least the same number of children who are affected by divorce each year will be affected by the separation of unmarried parents, and probably many more. Indeed, it may be that taking both family types, as many as 500,000 children a year are affected by parental separation. Whatever the true figure, what can be said with confidence is that issues arising from parental separation are prevalent and something with which schools up and down the country must grapple every day.

The school/teacher population

So with around half a million children affected by parental separation each year (and by that I mean newly separated parents; of course there are hundreds of thousands of children in schools whose parents are already separated), how well-placed are schools to respond in terms of their numbers?

Continuing my passion for stats, I give you the DfE publication Schools, pupils and their characteristics, January 2019, published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/812539/Schools_Pupils_and_their_Characteristics_2019_Main_Text.pdf

Headlines :

  • there were 8.82 million pupils in all schools in England in 2019, an increase of 1% year on year (and a 9% increase in a decade); within that around 580,000 were in independent schools, where numbers have been falling since 2017 and now have c2,300 fewer pupils since then
  • the number of pupils in state funded secondary schools rose for the fifth year in a row and had a much greater increase in population than primary schools in 2019
  • 15.4% of pupils were eligible for and claiming free school meals, the highest proportion since 2014
  • the average infant class size decreased slightly year on year to 27.1 (a figure which has been fairly constant for the past decade)

Pausing there – even if we assume (conservatively) that 400,000, rather than half a million, children are affected by parental separation each year, that is over 4.5% of the school population; and of course that is only in one year and takes no account of those whose parents have already separated. In other words, an additional 400,000 children every year.

What is particularly striking (and well-known) is that the teaching workforce has not been keeping pace with the growth in pupil numbers, adding to the pressure on teachers within the system – see School workforce in England : November 2018 published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/811622/SWFC_MainText.pdf

There was only a 2.7% increase in the full-time teaching workforce over an 8 year period, contrasted with an 8% increase in the school population over the same period. The problem is especially acute in secondary schools, where there has been an almost 7% drop in full-time teachers in the past 8 years whilst the number of pupils has stayed fairly constant.

Guidance for schools about separated parents

The DfE publishes/keeps regularly updated a guide for schools, Understanding and dealing with issues relating to parental responsibility https://www.gov.uk/government/publications/dealing-with-issues-relating-to-parental-responsibility/understanding-and-dealing-with-issues-relating-to-parental-responsibility#dutiesundereducatonlaw

It defines

  • Who is a parent
  • what parental responsibility is, who has it and the key effects of a second parent acquiring it
  • different types of court order which settle different areas of dispute in relation to a child’s upbringing or the exercise of parental responsibility

The meat of the document is contained under headings which start, “General principles for schools and local authorities”. Those principles include :

  • Everyone who is a parent can participate in their child’s education; pupils are to be educated in accordance with the wishes of their parents [so far, so good]
  • all parents can receive information about the child (though for day to day purposes the school’s main contact is likely to be a parent with whom the child lives on school days) [pausing there – why? This may be administratively simpler, but as many dads still have an alternate weekend-type arrangement, they shouldn’t be cut out of the picture just because Monday to Friday happens to be spent with mum]
  • individuals who have parental responsibility for/care of a child have the same rights as biological parents, e.g. to receive information like reports, be asked to give consent e.g. to trips, be informed about meetings involving the child
  • school and local authority staff must treat all parents equally, unless a court order limits a parent’s ability to make educational decisions, participate in school life or receive information about their children
  • (crucially) – “Where a parent’s action…conflicts with the school’s ability to act in the child’s best interests, the school should try to resolve the problem with that parent but avoid becoming involved in conflict. However, there may be occasions when a school needs to decline requests for action from one or more parents. In cases where schools cannot resolve the conflict between separated parents, they should advise the aggrieved parent to pursue the matter through the Family Court”. [Note here – this places quite a high burden on the school. It would make sense for local practitioners to work with schools so that schools are aware of different dispute resolution services available locally, thereby bypassing both detailed school intervention and court].

Some specific areas covered by the note :

  • Information sharing : having PR doesn’t allow a parent to obstruct a school from carrying out their duties under legislation (e.g. if a parent asked a school not to share educational information about the child with the other parent). If a school doesn’t know where the non-resident parent is, it should make the resident parent aware that the other parent is entitled to be involved in their child’s education and request that the information be passed on. If the resident parent refuses to share information, and refuses to provide contact details so the school can deal direct with the non-resident parent, the school can do no more. Schools aren’t required to seek the consent of the resident parent before recording the contact details of the non-resident parent or sending them information; and there’s no requirement to request a solicitor’s letter or court order. [note – I always tell my non-resident parents to let the school know, immediately on separation, how they may contact them and to be clear that they want to see all the same information from the school as the resident parent. Occasionally I have had a school contact me to check the position and I have sent a letter/provided evidence of PR if so]
  • Obtaining consent : generally schools only seek the consent of the resident parent to outings and activities, unless the decision is likely to have a long-term and significant impact on the child or the non-resident parent has requested to be asked for consent. Where both parents’ consent is requested, schools may wish to assume that parental consent hasn’t been given unless all parents agree. Schools shouldn’t become involved in any disagreement but might want to signpost to advice/court.
  • Safeguarding : All schools are required to have regard to the Keeping Children Safe in Education statutory guidance, referenced further below.

The sort of issues children (and therefore schools) face

Disagreement over choice of school

I find that I’m having an increasing number of parents disagreeing over choice of school, both when I work with couples as a mediator and when I advise one of them as their solicitor. I have had two recent instances where money was no object for education and the disagreement was as to which of various top private schools the child should attend. In another two cases, the disagreement has been as to boarding versus being a day pupil. I have a mediation where the couple don’t agree as to the type of special educational needs support their child should receive. I also have an ongoing case – not my first of this type – where one parent wants the child to have a state education, the other a private education. Sometimes this particular issue arises for moral/ethical reasons; or it may be because the parent who objects would wish any future children they go on to have with a new partner to go to the same school as their older sibling but cannot afford that.

I also had one especially worrying case a number of years back where my client, the father (in whose favour a shared residence order, as then was, was in force and who also had parental responsibility) discovered that the mother, from whom he was long separated, had first of all harassed the child’s private school to the extent it became impossible for him to remain there (after she had never been keen that he attend in the first place); and then, having had her way and got him into an inner London comprehensive school, disenrolled him without the school thinking to tell my client. Various letters were written to the local authority reminding them of parental responsibility and the legal position.

But to summarise the whole smorgasbord of disagreements which may arise in relation to schooling –

Ø  State versus private

Ø  Co-ed versus single sex

Ø  Boarding (full-time or weekly?) versus day pupil

Ø  Disagreement about different private schools

Ø  Formal education versus home instruction

Ø  Different curricula, e.g. GCSEs versus International Baccalaureate

Ø  Religious instruction or not

The legal position is that everyone with parental responsibility for a child has a right to be involved in decisions relating to a child’s education. A useful Commons Briefing on parental responsibility, what it is and how it is gained and lost, is here https://researchbriefings.files.parliament.uk/documents/SN02827/SN02827.pdf

In the event of disagreement about a child’s education, anyone with parental responsibility (usually a parent) can apply for a ‘specific issue order’ (used to look at a specific question about how a child is being raised, resulting in a positive order from the court) or a ‘prohibited steps order’, blocking one parent from taking a particular course.

Although there are not (to my knowledge) stats about how many applications are being made to court about school disputes, the latest family court quarterly stats deal with the number of private law children cases more broadly and chime with my own experience – there was a 5% increase in the number of private law cases started in Q3 2019 compared with a year prior and a 10% increase in disposals. There were almost 22,000 children involved in those applications. These figures were the highest since mid-2013, when the legal aid cuts took effect.

So what may be the reasons for a growing number of schooling disputes? My own theories –

  • The removal of legal aid from April 2013 onwards has undoubtedly been one of the main drivers behind the increase in the number of overall children cases going to court. Fewer people are signposted to advice and so are pursuing their own claims and not resolving them out of court
  • There are ever greater choices – types of school, curricula, religious instruction, etc – leading to more scope for disagreements
  • There are more couples with spouses from different backgrounds who may have different views as to the best type of education for their child at the end of their relationship
  • Greater mobility may mean that more parents are looking to move on separation and that would trigger the need to look again at schooling, at a point when a child may otherwise be settled in his/her education.

In the absence of the parents being able to reach agreement, the court or an arbitrator will have to do so by reference to a welfare check-list, including the ascertainable wishes and feelings of the child concerned; their physical, emotional and educational needs; the likely effect on the child of any change in his circumstances; the age, sex, background and any characteristics of the child which the court considers relevant; any harm which the child has suffered or is at risk of suffering; and how capable each of the child’s parents are, and any other person in relation to whom the court considers the question to be relevant is, of meeting the child’s needs.

Therefore the Court will look at factors such as the location of the schools proposed, how the child would travel to the school, the wishes of the child, the level and type of learning the child would receive, whether the child has any specific needs and how they would be dealt with etc.

In Re G (Education: Religious Upbringing) [2013] 1 FLR 677 Lord Justice Munby created the concept of the “judicial reasonable” parent and laid down the three objectives of the Court when making a decision about the upbringing of a child:

  • Recognise that equality of opportunity is a fundamental value of society. By this he meant equality between different communities, social groups, genders etc.
  • Foster, encourage and facilitate aspiration. 
  • Bring the child to adulthood in such a way that the child is best prepared to decide the type of person they want to be and the type of life they wish to lead.

The views of the child’s current school/ teachers are likely to be taken into account when the court/arbitrator considers which school is appropriate going forward, and this is where a school is likely to find itself dragged into parental disagreement. Ordinarily I suggest to my client (or to couples I am mediating) that they collate recent school reports and try to talk to the child’s class teacher, housemaster/mistress or headmaster/mistress (as appropriate) about their view as to what makes this particular child ‘tick’ and whether he or she is more likely better suited to an especially academic school, one with a sporting tradition, music etc etc. They will be best placed to know the environment in which a child will thrive and to make recommendations based on that. I always encourage the parents, where possible, to meet with the school together so as not to place the teachers in an impossible position; better for the parents to be hearing the same message at the same time.

Tips for parents

As far as possible, I try to get parents to reach their own decision, assisted by the school’s recommendations but without trying to delegate responsibility for a decision to the school wholesale. The best advice is to –

  • Keep school options open; make multiple applications, even if you don’t agree with some of the schools your ex has suggested/have your child do entrance exams for all as applicable;
  • Be open-minded. Sometimes parents do change their mind as a result of further investigation and come round to the other parent’s point of view. Go and visit all schools on the list; even if you don’t change your mind, it will make you seem more reasonable (and better placed to explain your objection) if you have explored every option;
  • Work with the current school to find what they think would best suit your child, without delegating the decision wholesale;
  • Try to reach agreement through mediation – far better than asking a judge, who won’t know your child, to decide;
  • Don’t put the school in the middle; try to approach them jointly for guidance and in an open-minded manner;
  • Allow time to resolve the issue; a court process takes time and won’t easily dovetail with the timetable for decision-making. Especially where the parents are looking at private schools, the window between exams/interviews/offers, and having to make a decision, can be as narrow as two weeks. In those circumstances, arbitration can be a really useful process as one can arrange the hearing to take place in the short window once offers are known, and a decision can be made quickly and in time for the school to be notified.

Disagreement at the school gate over whose “turn” it is to collect the children

I have had this happen in a number of my cases. I can think of one particular case where a couple were coming into mediation with me for the first time and upon arrival at my office, one of them handed over a letter their children’s primary school had sent to them, berating them for turning up at the school gates one day the week prior and having a blazing row over whose turn it was to collect the kids, leaving their two young children in floods of tears. In that case, the steely headmistress had hauled both parents into her office, purported to impose arrangements for the next few days (which, to their credit, they stuck to) and then suggested that they go to mediation to sort things out, which they duly did.

In another of my ongoing cases, where we are concerned about parental alienation, it is not uncommon for the mother to turn up early at the school gate to collect the children, so as to thwart dad’s attempt to collect them minutes later. We have learned that sadly, the existence of an Order (which, in that case, we have) is not enough and it is necessary to notify the school in advance which are the specific Fridays upon which dad is to collect the children. Again, of course, it would be practically difficult for a school to refuse the mum if she did come to collect the children when she shouldn’t, particularly as they are quite young and have already been exposed to conflict.

I have also had cases involving older children where the child has told the school, upon one parent coming to collect them, that they want to go home with the other parent. My experience of that is that, completely understandably, schools in that situation stick to the letter of any Order and don’t try to go behind it. However in certain circumstances the school can and do seek to involve social services, where they think e.g. that the child is at risk of emotional harm and no steps are being taken through the courts to change the status quo despite the child’s obvious unhappiness.

Schools in these “tug of war” type situations are in an invidious position. They are rightly careful to ask each day who is due to collect a child (as I learned to my peril the first time I went to collect my nephew from reception class and he swore blind to his teacher that he had never laid eyes on me before, causing her to question me at length thinking that I was trying to abduct him; I have just about forgiven him 9 months later). But what can they do when there is a dispute?

The most obvious answer is to do as the headmistress did with my mediating couple and intervene, for the sake of the children, making them see that their behaviour is not acceptable. I never knew how she managed to broker interim arrangements between the parents – I needed her as a co-mediator when I started my work with what turned out to be a pretty intractable parenting dispute – and then manage to write a lengthy letter summarising their behaviour, why it was unacceptable and what they had agreed pending mediation.

The Understanding and dealing with issues relating to parental responsibility guidance makes clear that schools should ask parents to ensure that they provide schools with a copy of the most recent child arrangements order in place, to support the school’s duties in respect of child safeguarding (for which parents may need the court’s consent). Of course, it can take many weeks and months to get to that point and it is precisely when things are at their most raw that there is no Order yet in place. And indeed, in around 90% of cases involving separating parents, they reach their own informal parenting agreement.

Ultimately, where the school cannot resolve the conflict, they must encourage parents to go through the Family Courts. And see below for a school’s responsibilities where the extent of the dispute is such that the conflict is beginning to affect the child’s emotional wellbeing, or other concerns.

When safeguarding concerns about children arise

5 years ago, Resolution commissioned research about the impact on children of parental separation and divorce. Among the quite shocking results, the adverse impact on children’s exams of acrimonious divorce was brought to the fore. Many children turned to alcohol and drugs. 82% of those surveyed, aged 14-22, who had experienced parental separation said it is far better for kids if unhappy parents separate rather than stay together for the sake of the children. https://www.theguardian.com/lifeandstyle/2015/nov/22/children-divorce-resolution-survey-rather-parents-separate

I have had plentiful cases where it is either the school who has first picked up and reported concerns about a child; or else they have played a pivotal role in social work which has followed parental separation. In a present case, the local authority’s involvement was triggered by the police, who kept getting called to acrimonious handovers (invariably the mum refusing to hand over the kids, despite an Order being in place); what the school have been able to contribute to the work so far has been invaluable.

I have referenced already the Keeping Children Safe in Education (“KCSIE”) statutory guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835733/Keeping_children_safe_in_education_2019.pdf

KCSIE is a comprehensive guide for teachers of what to look out for and what to do if safeguarding concerns arise. It emphasises that all who come into contact with children and their families has a role to play in safeguarding children. Schools are especially important as they are in a position to identify concerns early and provide help for children. A child in immediate danger or at risk of harm should be referred immediately to children’s social care or the police and all schools are required to have a designated safeguarding lead. Details of the specific role of school staff are set out at part one of KCSIE; and the sort of things they should look out for are at paragraphs 18 to 31.

It shouldn’t be forgotten, of course, that much of what is referenced in KCSIE as being things to watch out for – being in a family circumstance presenting challenges for the child, misusing drugs/alcohol, emotional abuse, neglect – may come about as a result of parental separation or associated court proceedings. Therefore teachers are right to be especially alert where they are aware of this in the background.

What should parents do?

Whilst it would be all too easy easy for parents, especially those who are separated, to delegate all responsibility for these issues to the school and let them be the arbiter of disputes, that is neither realistic nor fair. Schools have a duty to all of their pupils and there are obvious resource limitations.

First and foremost, separated parents should be doing all that they can to shield their children from conflict and reach their own agreements so that the school does not need to intervene. Organisations like Resolution have plentiful guidance for parents about how to ensure that their children are put front and centre in any divorce and protected from the fall out

Talking to your children about the divorce

Tips for parenting during a difficult divorce

The Parenting Charter is also a useful resource to which parents should refer during their separation

A plug also for Only Mums/Only Dads’ fab book, 101 questions answered about separating with children, a copy of which every newly separated parent should acquire/be encouraged to acquire https://bathpublishing.com/products/101-questions-answered-about-separating-with-children

One chapter in the book deals with what schools need to know about parental separation and suggests :

  • Parents’ first action on separation should be to let the school know that separation has happened, having discussed with the children the fact that that conversation is to take place, and what is to be said/to whom, as a child will often seek out a trusted adult at school to share their feelings with. Schools should be given contact details for both parents, the order in which they should be contacted and contact plans.
  • Schools should provide copies of all correspondence to both parents and parents need to be proactive about letting the school know if this isn’t happening.
  • Parents should present a united front and show that they both value and care about the child’s education, putting differences aside for the child’s benefit.
  • A shared response to any problems at school is helpful; working with the school to get to the root of any problems and parents talking honestly to each other makes a huge difference to a child.
  • Schools have thoughts about contact arrangements, uppermost – don’t use them as a weapon; and don’t withdraw time because this can leave a child distressed. Certainty in arrangements is key.

In conclusion

I have seen both good and less good practice from schools when it comes to dealing with children of separated parents. It is right that they need to be on top of their statutory safeguarding duties; and to know at least the basics of parental responsibility and who has it. But expecting them to police parental disputes is unrealistic.

When I tweeted about my FT piece earlier this month, it was clear that many have dissatisfaction with the way in which schools engage with separated parents –

Schools have an invaluable role to play when families break up. It would be good to start a dialogue about how we may harness best practice, eradicate less good practice, and all work together to provide joined-up thinking for the children of broken homes, with everyone with whom they engage rowing together for their benefit. A good starter for ten may be engagement at grass roots level between local lawyers, therapists, social workers, teachers and GPs, so that everyone is educated in roles and responsibilities, knows the legal framework and has a little black book of who to refer to if parents need therapeutic, mediated or other assistance. Ultimately, this has got to be to the benefit of children everywhere.

Jo Edwards

Vanquishing “gold diggers”, disregarding fairness? The future of financial remedies on divorce

The statutory provisions around how finances on divorce are to be approached – as set out in s25(2) of the Matrimonial Causes Act 1973 – are as old as yours truly. That is, VERY old. But what we have is an excellent (by and large) family judiciary which uses the discretion afforded by that statute and flexes decisions to meet changing modern mores and the facts of the individual case, to reach a fair outcome. To a point, that is fine.

However, society has moved on since 1973 and it is not enough to rely on judges to reflect societal changes. Few people who practice in this area (and even fewer who have been through divorce themselves) would say that the current law is perfect and not in need of change. However, when news filtered through last week that a Divorce (Financial Provision) Bill is being introduced for first reading in the House of Lords on 20 January, let’s say I was doing whatever is the opposite of a victory dance. I (along with many practitioners and specialist stakeholders) have been a vocal critic of the Baroness Deech bill which has been around now for some time; and although I have yet to see the detail of this one (and understand it is being introduced by Baroness Shackleton, not Deech), if it is anything like its predecessor (and one is to assume it is a carbon copy, given that Baroness Shackleton has expressed support for the Baroness Deech bill in the past) it is bad news for separating couples (or, more specifically, the financially weaker party).

The problem with the current law about finances on divorce

The Resolution Manifesto for Family Law – launched when I was Chair and somehow 5 years old next month – says of financial remedies reform the following :

The problem

The removal of legal aid has led to a rise in unrepresented litigants, with over 50,000 people representing themselves in family disputes in 2013.

[An aside – this statistic has aged quickly and the problem is ever more acute. The latest statistics – the Family Court Quarterly bulletin for July to September 2019 – show that 81% of private law family cases now involve at least one unrepresented litigant; and that in almost 2 in 5 cases – 39% – neither litigant is represented. The crudely drawn red line in the table below is intended to show when the Resolution Manifesto was published and therefore illustrate how the problem has grown even worse since https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf ]

Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professions [20 years in, I will admit to this]. Section 25 of the Matrimonial Causes Act 1973…has fundamentally remained unchanged for the last 40 [now add another 5] years. The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system.

[Another aside – this is really the crux of it. In an era of limited (and let’s be frank, really no) access to legal aid, those navigating divorce need clarity about likely financial responsibilities/entitlements. Courts meting out justice need fewer cases crossing their threshold. Mediation numbers are down, when many of these cases could no doubt be sorted out away from court. Goodness knows how many more people than pre-LASPO are just not pursuing financial claims on divorce because they don’t know how and becoming dependent upon the state for hand-outs. We know that, statistically, for those who do instruct solicitors the cost of divorce is going up. And the family courts are seeing private law case numbers which are creeping back up to pre-LASPO levels –

The Manifesto continues –

With the average median household income at £32,600, most people do not have huge resources to divide on separation. The complexity of current law affects ordinary people, living in ordinary circumstances. Reform is needed to make sure they are fairly provided for after they separate.

None of that can be at all controversial. Many of us practicing as family lawyers can lose sight of the fact that in the average case, the assets are modest (and sometimes may only comprise debt) and how to provide for two households can be a conundrum. The average reported case, involving as it invariably does multi-millions and disputes about why there should be departure from equality of capital division, or whether the non-working spouse should be compensated in budget/spousal maintenance terms for giving up a potentially lucrative career of his/her own (A – probably not any more), doesn’t speak to the proverbial man (and woman) in the street.

So what, in outline, is the answer?

Our solution

Resolution calls for clear guidance for people entering the court system, so that they are more aware of the potential outcomes and consequences, and for a wide-ranging reform of the financial provision system to achieve more clarity.

[Note – I honestly don’t remember why we said “for people entering the court system’. Elsewhere in the manifesto we endorsed measures to help separating couples reach agreement out of court. Read in tandem with that manifesto ask, the point was really that, whatever the forum for sorting out their divorce, we wanted divorcing couples to have greater clarity about the likely approach to their finances on divorce]

The reforms to Section 25…that Resolution wants to see emphasise independence and greater certainty on the level and timescale for payment of maintenance, with children’s interests at their heart.

[I shall return to this theme as there is a distinction between this position, which is really about more principled discretion than exists at present, and the Baroness Deech/Shackleton bill, which moves more towards straitjacketing and (seemingly at least) disregards fairness/children’s interests].

Enforceable agreements (commonly known as “pre-nups”) should be permitted with suitable safeguards. This would provide certainty to people entering the courts that a previously made agreement will generally be binding, unless it does not satisfy clearly identified criteria. The independent Law Commission has also called for change in this area

[Likewise, where the previous bill was apart from this was on the question of fairness, about which it was silent]

Clear guidelines are needed on the division of capital resources and pensions. Resolution proposes a distinction between matrimonial property and non-matrimonial property in cases where resources exceed the needs of the separating couple.

[The rub here is the final part of the second sentence – in cases where resources exceed needs. The bill, in its last iteration, seemed unconcerned about outcomes/fairness; the principle was all about the ring-fencing].

What does the Law Commission say?

In 2009 (how is it now 11 years ago?), the Law Commission started a project to look at the status and enforceability of marital property agreements. A consultation was opened in January 2011 but the project was (logically) extended in 2012 to cover two further aspects of finances on divorce – financial needs and non-matrimonial property. As such, a supplementary consultation was commenced in September 2012. It was not a full-scale reform project directed at the entirety of the law of financial orders, but aimed to bring clarity to areas of the law that cause particular difficulties.

The Law Commission’s report, Matrimonial Property, Needs and Agreements was published in February 2014. It was a thorough, considered piece of work, based on the many responses it received (and, at 231 pages, a rip-roaring bedtime read) https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc343_matrimonial_property.pdf For those with a lesser stomach for detailed treatises, a bite-sized (14 page) summary was also produced https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc343_matrimonial_property_summary.pdf

Recommendations for reform were intended to :

  • Clarify, through the provision of guidance by the Family Justice Council, the law relating to “financial needs” to ensure that the law is applied consistently by the courts.
  • Give guidance to give litigants in person access to a clear statement of their responsibilities and the objective of a transition to independence that a financial settlement should achieve.
  • Investigate the possibility of whether an aid to calculation of “financial needs” could be devised; specifically it was envisaged that formulae, if developed, would take the form of non-statutory guidance and give a range of outcomes within which a separating couple might negotiate.
  • Introduce “qualifying nuptial agreements”, enforceable contracts enabling couples to make binding arrangements for the financial consequences of divorce, subject to certain procedural safeguards being met.

One of the areas which particularly piqued the interest of readers of the report was the suggestion of non-statutory guidance. The Law Commission pointed to the experience of other jurisdictions who have produced such guidance and suggested that work be done to gauge whether an aid to calculation could be devised and found useful. The relevant paragraphs of the (detailed – sorry) report are 3.121 to 3.159, which concluded that Government should support the formulation of a working group, to be convened once suitable empirical data become available, to work on the possible development of a formula to generate ranges of outcomes for spousal support. It was envisaged that the project, which would be populated by those from a range of relevant backgrounds, could last for some five years. That in itself emphasises what a complex area this is and the need for an evidential basis for any reform.

The Family Justice Council has produced (helpful) guidance on needs (for both the judiciary, now on its second edition https://www.judiciary.uk/wp-content/uploads/2018/04/guidance-on-financial-needs-divorce-2nd-edition-april-2018.pdf and the public https://www.familylaw.co.uk/docs/pdf-files/family_justice_council_fjc_-financial-needs-april-16-final.pdf )

The Ministry of Justice also undertook some scoping work on the feasibility of developing non-statutory and numerical guidance on the calculation of financial needs. However, no substantive steps were taken in the 2010-2015 parliament as government considered that there was unlikely to be time for matters to progress (and, particularly, for the nuptial agreements bill appended to the report) before parliament was dissolved in March 2015. There have been no subsequent developments (need I say, the Tories having secured a 12 seat majority in the 2015 election, but then everything having been eclipsed by the Brexit vote in 2016 and the ruling party’s loss of its small majority in the 2017 elections).

The Divorce (Financial Provision) Bill 2017-19

Practitioners have long had a (wary) eye on the Divorce (Financial Provision) Bill 2017-19, which also featured in the previous parliament. It was beginning to pick up pace through the House of Lords in late 2018, completing its House of Lords stage and being presented to the House of Commons on 19 December 2018 (where it was being sponsored by Tim Loughton MP, who also sponsored the bill which led to civil partnerships for all from 31 December). However it never reached second reading stage and fell with the general election.

A link to the Bill in its previous guise is here https://publications.parliament.uk/pa/bills/cbill/2017-2019/0310/cbill_2017-20190310_en_2.htm#l1g3 I shall update this blog once I have seen the version of the Bill being presented to the House of Lords on 20 January 2020 and highlight any changes.

The scheme of the Bill, in a nutshell, is to :

  • Limit the assets up for grabs on divorce to “matrimonial property” (as fairly narrowly defined in the Bill), without regard to fairness of outcome, and have a strict accounting exercise as to how that gets divided;
  • Give nuptial agreements a statutory footing along similar lines as recommended by the Law Commission, save for (a) only needing pre-nups to be signed at least 21 days before a marriage and (b) (crucially) making no reference to fairness, as a factor which dictates whether or not a nuptial agreement should be upheld (why the heck not?)
  • Have a spousal maintenance regime which focuses on economic advantage gained/economic disadvantage suffered and which caps spousal support at 5 years (having previously been 3 years in the Bill) save in only extreme circumstances.

The Bill as it stood does not have much (if any) support among practitioners in England and Wales and is not (or was not) understood to have government support. To avoid reinventing the wheel, I have included below the text of a detailed letter I sent to Peers in November 2018, which explains the scheme of the Bill and my/Resolution’s opposition to it. (The backdrop to the letter was that I had spoken at a House of Lords round table some months prior about the Bill, making clear that it is a bad Bill, and one or two Peers asked that we write to set out a line by line critique of the Bill and what we were content with/what we felt needed amending; the reality is that the whole premise of the Bill is flawed and so any line by line analysis is impossible).

An evidential basis for reform?

It is apparent, from reading the transcript of the second reading debate of the Bill in the House of Lords on 11 May 2018, that in certain quarters there is significant strength of feeling about financial remedy reform. The problem is (and I say this with the greatest of respect), the focus seems to be all wrong.

https://hansard.parliament.uk/lords/2018-05-11/debates/89A33706-7DCD-4FA0-AE0D-B06E11FAF264/Divorce(FinancialProvision)Bill(HL)

  • It is based on sensational stories on the Archers and in the tabloid media. Is this really the most sound footing for law reform?
  • It references cases which hit the media in which the legal costs have become disproportionate to the assets actually being fought over. Clearly this is regrettable (to say the least) and gives our profession a bad name (ditto). But are those cases the norm? (Clue – no). And isn’t that about looking at the costs rules which operate in these cases (as indeed is happening at this very moment)? And surely if the law changed as this Bill envisaged, the focus of the debate would just become something different – e.g. what falls within and without the new definition of matrimonial property, or does a particular case meet the (limited) circumstances in which more than 5 years’ spousal support would be ordered? The costs of those investigations may well be just as high as the costs at present.
  • It is premised on the assumption that most people who make claims to the family courts are gold-digging hussies who should be given short shrift. Is that really our day-to-day experience? For every forum-shopping gold digger, I will give you 1,000 spouses who have worked hard in the home, been out of the workplace for 15 or 20 years, have contributed little to the marriage in financial terms (but masses in other ways) and come to the family courts in a position of real, sometimes dire, need. Are they to be prejudiced because the perception is that WAGs and gold-diggers is the typical demographic? And only recently I have been involved in a case where the wife (30 odd years younger than the husband, from what may be regarded as a jurisdiction which produces gold-diggers) has been branded a gold-digger yet the marriage has been of goodly length and produced children.
  • It pays no regard, in fact, to the detailed work of the Law Commission (which spanned several years and received responses from all the key stakeholders in this area) and the detailed further work which it says ought to be undertaken before any reform happens.

I could go on.

Others’ views

Others with far greater intellect (not difficult) than me have highlighted their concerns around this Bill.

In terms of concerns about the lack of evidential basis for reform, in August 2018 Emma Hitchings and Jo Miles, respectively of Bristol and Cambridge Universities, wrote a (brilliant – please read) paper setting out their findings from a mixed methods study of financial settlements on divorce, drawing on data from a Court filed survey of c400 cases https://www.nuffieldfoundation.org/sites/default/files/files/briefing%20paper%20Jun%202018%20FINAL.pdf

Also worthy of mention is a (similarly great) paper by Sharon Thompson of Cardiff University, “In defence of the gold-digger” https://poseidon01.ssrn.com/delivery.php?ID=979021004069088095084100081031094107101092046084012032073080067028119031007083096031042098107042116029053066098081097095015074017020005001059070074010095026086027097086009039066029094024072113071086027010117109099125114010078077069067092028113104082112&EXT=pdf

Brenda Hale at the Resolution conference, April 2018

But the final word on the subject has to go to Baroness Hale, recently stepped down from the Supreme Court presidency and well known for her steely intellect, warmth and impressive collection of brooches. She has been a vocal critic of the Divorce (Financial Provision) Bill, attracting comment from the legal press about how unusual it is (or now, was) for a President of the Supreme Court to express criticism of legislation before parliament (though we know now that our beloved Brenda doesn’t shy away from political controversy – legality of prorogation, anyone?). https://www.lawgazette.co.uk/news/hale-risks-political-storm-by-questioning-legislation-before-parliament/5070911.article

Speaking at the Resolution conference in April 2018, our Brenda sought to answer those who say that adopting the Scottish model of financial provision (as the current Bill effectively seeks to do) is the answer south of the border. Her view that this is not the right answer was made clear :

An alternative view is that marriage is a partnership which should be dissolved with equal sharing of assets accumulated during the marriage but no provision for future needs unless there would otherwise be grave hardship. This is more or less the law in Scotland and Baroness Deech’s Bill would introduce something very similar for England and Wales. It is unsurprising in Scotland, for two reasons. There was no history there of long term periodical payments, whereas periodical payments were the typical form of provision south of the border. And the highly-respected Scottish Law Commissioner, Professor Eric Clive, who was responsible for most of the Commission’s work in family law, had long held the view that there is ‘something fundamentally repulsive about the whole idea of dependent women’. Research by Mair, Mordaunt and Wasoff has found widespread satisfaction with the Scottish law among lawyers and judges; but it is not able to tell us what the parties think or what happens in practice to discarded homemakers with little hope of returning to the job market on the same terms as when they left it.

I agree entirely that it should not be assumed that the highest aspiration for a woman is to become dependent upon a man. It was that assumption which meant that my mother, a trained teacher, had to give up work when she married my father in 1936. But that assumption has long gone and women have the possibility of independence both during and after marriage. However, we cannot ignore the fact that marriage is a partnership in which the spouses (whatever their sex) often play different roles – and often varying over time – for their mutual benefit and that of their children and elderly parents. There are some men who happily undertake the housekeeping and child caring responsibilities traditionally undertaken by women. There are some women who pursue exactly the same working pattern as men have traditionally done. Most are probably somewhere in between. Research has clearly shown that a person who gives up work, even for a few years, in order to concentrate on child care or other family responsibilities will never make up what they have lost. It is a dilemma for us all, but particularly those in the professions who would dearly love to ‘have it all’.

My own view is that the goal of divorce settlements should be, as I said in Miller, ‘to give each party an equal start on the road to independent living’. But that equal start is bound to involve, for most couples, an element of compensation for the disadvantage, often the permanent disadvantage, resulting from the choices made by both parties during the marriage. Sometimes, but not always, the only way to do this is by open-ended periodical payments. To refer to this as a ‘meal ticket for life’ is indeed patronising and demeaning, but making an award for those reasons is not.

Conclusion

Few would defend the current law and argue that it is fit for purpose. It is clear that, for the benefit of all going through divorce (whether trying to self-navigate or asking two sets of solicitors to advise them as to outcome and hoping that they will not get two markedly different answers), something needs to change. And although there is a lot of innovation – the needs guidance note, more online signposting, those who are offering “one couple one lawyer” services and giving couples a common steer – fundamentally, there needs to be a clearer, more principled approach to financial outcomes on divorce.

It shouldn’t be assumed, however, that this is a straightforward choice between discretion and rules. At the moment, the English court has very broad discretion, whilst being bound by reported decisions which go before. The Bill, if enacted, would move things across to the very much more straitjacketed end of the spectrum. But, as with our political climate at the moment, the centre ground is likely to be more palatable. As Jo Miles has said, we are not confronted with a stark choice of discretion or rules. There are in fact many different shades within the palette of colours. The question is the right blend – what is the appropriate mix of rules and discretion? As she also says, there are other colours which can be brought into the mix – unfettered or fettered discretion, rules, rules with exceptions, presumptions, standards, guidelines and principles.

With the greatest of respect, the Divorce (Financial Provision) Bill is too simplistic, lacking in an evidential basis for the stark outcomes it would lead to and highly likely to lead to huge unfairness if ever it were enacted. It is for that reason, and not reasons of protectionism, that all working in this area – lawyers, judges and even those who have been through divorce – must oppose the Bill vocally and campaign for the work suggested by the Law Commission 6 years ago to be started, finally. Who knows, BoJo may soon have ‘Brexit done’ and with what looks like the first period of political calm since the Family Justice Review started in 2010, and a government with a working majority, there may be time properly to focus on this. But please – let’s make sure that the focus is the right one and that any reform in this area is on a solid evidential basis. And let’s get no fault divorce and cohabitation reform over the line first.

Jo Edwards

Divorced from reality? How the myth of “divorce day” jeopardises good divorce

Those who have the (mis)fortune to follow me on Twitter, or indeed to know me through having met me (unconventional I know), will be aware that at this time each year I reach peak levels of grumpiness for one particular reason. Yes, I lament the taking down of my Christmas tree and associated festive tat, the dawning realisation that United needn’t make any extra space in their silverware cabinet this season and the rubbish that appears in the winter sales. But my biggest source of irritation? Family lawyers peddling so-called “divorce day” and journalists, anxious to fill column inches and airwaves in the slow period Betwixtmas, falling for (and sometimes even, aiding and abetting) it.

So why does talk of “divorce day” (now as regular at this time of year as the Daily Mail depressing us mere mortals with incessant photos of celebs with ripped abs on far-flung beaches) have me reaching for the Valium? And how, aside from stopping perpetuating the myth that people should be rushing headlong into divorce in January, lemming-like and without consideration of their/their spouse’s emotional readiness, can we ensure that as many as possible achieve the holy grail – a good divorce?

Why are suggestions that tomorrow is “divorce day” anathema to any family lawyers worth their salt?

Borrowing from previous rants on this topic, which I have traced back 13 years (more below) and about which I have been moaning for almost as many, my primary submissions to the court of common sense are fourfold :

  1. There is no evidence that more divorce petitions are issued on the first working Monday in January than any other day of the year

Confession. I like a stat. I get excited about the publication of the Family Court Quarterly Stats; and the prospect of the regular ONS bulletins about marriage, divorce, cohabitation and households in the UK has me virtually reaching for the smelling salts.

Now I will accept, having studied the evidence, the more watered-down version of the “divorce day” story, that enquiries to family lawyers go up in January. Searches for “divorce” online surge. Data provided by Google trends shows that Januaries 2012 and 2016 were the two most popular months for divorce searches in the last decade. That no doubt leads to increased enquiries to law firms (who, in their quest for good divorces rather than divorce day statistics/quick profits, will be signposting enquirers to marriage counselling or planning a dignified, child-focused parting of the ways that does not involve pressing the eject button speedily and without regard to fellow passengers). But that does not, in my and others I know experience, translate into the phone ringing off the hook the first working Monday in January. Nor does it mean that family lawyers should be using this as a marketing tool, rubbing their hands with glee. I always wonder, if those family lawyers simpering on the couches of TV breakfast shows or in the studios of radio stations on the day in question are really that busy, or expect to be, how do they have time to be away from the office and why have they not prioritised clients in crisis over a media blitz…?

However, the whole premise of the more extreme “divorce day” story seems to be that after an unhappy Christmas, a spouse not only sees a family lawyer the first Monday back after the festive hols, but also instructs them immediately to issue a petition. Jurisdiction race considerations aside, that never happens. What of the need to prepare the petition, get the marriage certificate and (so we don’t breach the Resolution Code of Practice) share a draft with the other spouse first? The reality is that we’d trigger a flood of complaints (rightly) about breach of the Code, not to mention a raft of defended divorces and (even if undefended) unhappy, protracted discussions about money and children aspects if we behaved in that bull-in-a-china-shop way.

And back to those stats. The most recently available family court quarterly stats are for Q3 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf Amongst other things, the stats show the volume of divorce petitions by quarter (though not, admittedly, by day). An analysis shows the number of petitions being issued recently as follows –

2019 – Q3 – 29,531

2019 – Q2 – 28,144

2019 – Q1 – 29,136

2018 – Q4 – 28,539

2018 – Q3 – 29,971

2018 – Q2 – 32,230

2018 – Q1 – 27,401

In 2018, the last full year for which we have figures, the first quarter of the year was when the LEAST divorce petitions were issued (and there was an 18% increase in the number of petitions issued in the second quarter compared with the first quarter). In the three quarters of 2019 so far published, issuings in Q1 lagged behind Q3. Admittedly in recent years there have been some quirks in the stats to reflect the much-pilloried divorce centres having an exceptionally bad quarter performance-wise (or, paradoxically, an influx of temporary staff to blitz the backlog); but the short point is that none of this (or indeed more historic stats) supports the theory that there is a flood of divorce petitions being issued immediately after the Christmas break.

2. It is distasteful

I hope that this limb of my argument is a “slam dunk” – and the growing revolt, from family lawyers and journalists, suggests that it is – so I don’t propose to expand on it. I have previously likened the behaviour of family lawyers who rush out divorce day press releases on Christmas Eve as they put on their out of office, to undertakers anticipating a rush of deaths in January and having a jolly marketing campaign around it. By engaging in divorce day tittle tattle, we are preying on human misery and hoping that as many couples as possible will have had a rotten Christmas. Rival firms’ PR teams – 99% of the time you’re welcome to do what you want, but perpetuating this topic reflects badly on our whole profession. So stop it.

3. It is irresponsible 

Why “irresponsible”?

Most clients have never divorced before and look to us for guidance. Many (at last count 81% of family cases involved at least one unrepresented litigant) cannot afford much (if any) legal advice and rely on the internet. In both instances they are looking for norms, in uncharted seas and with waves of emotion washing over them. They need to be able to make informed decisions.

Those who come to me can be at different stages in the grief process. Some have had lots of couples counselling and are certain of their decision to divorce, often (but not always) mutual; others are taking very preliminary advice, fearing the worst, hoping for the best, and wanting to be prepared; and then there are those who were standing on the deck of their marriage, thinking that the waters all around were calm and suddenly being hit by a tidal wave, in the form of their spouse announcing a desire to divorce, the leaver having already put on their life jacket and set sail in the life raft, the leavee floundering around under water. Each will need a different type and level of support, but what binds them is a desire for “norms”.

So what signal does it give those contemplating divorce, at their own or their spouse’s behest, if we continue to peddle the story that people are flocking in droves to end their marriages/to see a divorce lawyer on a particular day in January? Does it become a norm that drives people to make what can be a far-too-hasty decision, when my opening line to clients is always that the one thing I will never advise them on or pressurise about is whether and if so when to end their marriage, as that it such a life-changing, personal decision? And wouldn’t it reflect better on our profession, whilst acknowledging how hard Christmas and New Year can be for families in crisis, to point out that ALL marriages go through rocky patches and intensive counselling should precede hasty decisions? Only those who have already had that counselling, or for whom a marriage is in crisis due to domestic abuse, should be encouraged to start a legal process in January.

4. People are more likely to have a “good divorce” if they have taken time to try to work things through

This, for me, is key. Achieving a good divorce for clients should be the goal of every family lawyer. If my cases encounter turbulence, as the pilot I always reflect afterwards and think, could we have identified that storm cloud in advance and avoided a bumpy part of the ride? Or at least warned the passengers to fasten their seatbelts?

When clients ask what are my tips for a “good divorce” (of which, more below), my starting point is always that they should be sure that divorce is what they really want. Generally our experience as practitioners is that if a couple agree that the marriage is over and feel that they have done their best to save it, they are more likely to have an amicable separation.

Sometimes, of course, divorce isn’t a mutual decision. I always advise that if that is the case and my client is driving the divorce, they should be patient with their spouse and not rush the process; and if they are on the receiving end of a request for divorce, they should ask for time to come to terms with it if needed (which often it is). The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss, understand and come to terms with why the marriage ended, which tends to make the legal process smoother. That time can also enable them to think about how to prioritise the needs and feelings of any children, road-test arrangements and work with a family consultant or mediator on how they will work as co-parents post-divorce.

Again, perpetuating the myth that it is normal to bring a marriage to an end in a particular month puts all of this in jeopardy. This is a time for sensitivity, not crass marketing.

How to have a good divorce

For both those who are reading this as they contemplate divorce, and family lawyers mulling over how to ignore the divorce day circus and best assist their clients, I conclude with thoughts on how to have a “good divorce”.

This time two years ago I, along with “top family lawyer” Nigel Shepherd and “queen of no fault divorce” Professor Liz Trinder, appeared on an ITV Tonight special, “Divorce Wars” which covered problems with the existing law and the case for no fault divorce. I was in the studio as it went out and then did a live Q&A online for an hour immediately after transmission. The producer commented that she needed several more of me to deal with the deluge of questions, most from people who just didn’t know where to turn. So I produced (and replicate below) my “Top 10 tips for a good divorce”.

  1. Be sure that divorce is what you really want

All relationships go through a rocky patch; couples counselling can help. I have cases where couples reconcile; mediation can be a good forum for addressing non-emotional difficulties which may help preserve the marriage (e.g. is there lack of financial transparency and a need for a discussion; does one feel exposed on the other’s death and could a Will help; is one coming into family money which they wish to preserve for future generations, through a post-nup?). If, however, you agree that the marriage is over and that you have tried your best to save it, the parting of the ways is more likely to be amicable if you have worked at it.

2. Timing is key

If you’re the one driving divorce, be patient with your spouse and don’t rush them. If you’re on the receiving end of a request to divorce, don’t be afraid to ask for time to come to terms with it. The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss and understand why the relationship ended, which tends to make the legal process smoother. I recall one case years ago where my client had been told by her husband of 40 years that the marriage was over; she was understandably devastated and unable to do anything other than cry throughout our initial meeting, processing nothing I was saying. I phoned her husband’s solicitor, told him to back off talk about issuing a petition, and sent my client off for intensive counselling. A year later she took ownership of the process, issuing divorce proceedings herself and having her say on the finances at a round-table meeting (which soon settled things).

3. Put the children front and centre

Prioritise the needs and feelings of any children, ensuring that they have a relationship with both parents during and after divorce provided that it is safe. However much bad feeling exists, marriage breakdown is never the fault of a child. Exposing them to conflict, and/or forcing them to take sides, risks causing them lasting emotional harm. As family lawyers, we cannot stress this enough.

4. Don’t cut off communication

Ensure a line of communication is kept open with your ex during the divorce and (where there are children) afterwards, only unless there are very good reasons for not doing so. I have many cases where couples will not communicate with each other, which adds significantly to legal costs (we are a very expensive letter box) and is miserable for children. If direct contact isn’t possible at first, perhaps agree a third party through whom you can communicate or a means of communication like WhatsApp or email (keeping the tone respectful at all times). Where I am mediating a couple who are having difficulty communicating in a civilised way/at all, I encourage them to copy me in on their communications for a time (without charging them or engaging at all) as this tends to make them think twice about the language they are using. As parents, you need to be able to work together for a number of years and cannot run back to lawyers whenever there’s a minor disagreement.

5. Be open

Be clear about what you want from the divorce as the sooner you explain where you’re coming from and what you want, the more likely it is that your ex will see your viewpoint. At the same time, be pragmatic and open to compromise – entrenched positions lead to delay, acrimony and cost. The best outcomes are where both spouses leave the table slightly unhappy, rather than having a winner and a loser. And be transparent about your finances.

6. Be realistic

There needs to be a dose of realism brought to every case. You should take advice about what you may be entitled to expect, in terms of money and children (and if you can’t afford full-service advice, invest in a couple of hours of tailored advice and signposting, which some firms offer for free. There is a raft of information available online but it’s worth getting a steer as to how the law may apply to your case). Most cases that end up in court do so either because one person is trying to achieve an unrealistic outcome, or because one has not been fully transparent about their finances.

7. Work together

Going to solicitors, or a mediator, with a measure of mutual understanding about the financial picture, and even an idea of how the finances or children issues may be resolved, is the most cost-effective way forward and likely to lead to the quickest outcome. Many couples come to me as a mediator clear about what they think they want to achieve but wanting me to reality-test their agreement and highlight any points they may not have thought of. Openness to solutions is key.

8. Court isn’t the “norm”

Mediation or collaborative practice are the best processes for achieving a good divorce. You and your ex will be directly involved in discussions and will be able to hear what the other has to say, but in a supported environment. An arrangement agreed between you and your ex will likely be more successful in practice than one imposed by a judge (and cost less).

9. Educate yourself

There is a lot of information available online about divorce. Although it is sensible to have legal advice, you can save on costs if your solicitor does not have to explain process and their involvement is limited to advising how the law may apply to your case. Make sure you understand how your solicitor charges, be clear about the level of involvement you expect and make sure you agree a budget for costs and stick to it.

10. Look after yourself

No matter how amicable it is and whatever the circumstances, divorce can be tough and take its toll. Look after yourself and keep your friends and family close. A support network (and, in most cases, a course of therapy for those more difficult moments as you go through divorce) is very important, so you don’t feel isolated or overwhelmed. I have some clients who have continued with therapy for years after a divorce as they have found it helpful; decide what is best for you.

Hopes for 2021

I say it every year, and the phalanx of “divorce day” conscientious objectors is growing; but next year I hope that

  • There is no #DivorceDay referenced on Twitter (except to shout it down, as in this excellent thread)
  • There is no more need for journalists to call out this nonsense
  • These headlines, and lawyers’ press releases leading to them/simpering TV sofa appearances will be a distant memory

Postscript

Over the festive period, and having seen my many posts on the subject, someone contacted me to confess to being “ground zero” for the divorce day phenomenon, saying they concocted the story back in 2007. For their sake, I shall say no more.

2020(s) vision – a better future for the children of separated parents?

Entering a new year – no, decade – I resolved, along with the usual aspirations of getting back to the gym, doing dry January, moaning less about Manchester United/my commute and achieving better work/life balance, to turn my hand to (occasional only, honestly) blogging.

As I pondered what topic my first, momentous (ahem) blog would cover, two things happened. First, I was contacted by BBC Radio London about doing an interview on civil partnerships for all, which promptly led to my first post. Second, I received an email from someone who works with separating couples. A non-lawyer, he had written a piece he was seeking to have commissioned and invited comments.

As I read it, I found myself in a state of indignant irritation. The premise being that January is a month when many people research “divorce” online, the bottom line of the article was that divorce and separation is a health and social issue that doesn’t belong in court; and that this is a public health crisis which can be addressed by investing in measures like better education and practical support for separating families. None of that especially controversial, as a viewpoint.

Are family lawyers the problem…?

What caused my hackles to rise (though I know from subsequent emails that he did not read his article/intend his article to read as I did) was the description of family lawyers which permeated the piece. Among other things, the charges levelled at us were that :

  • We prey on parents when at their most vulnerable, our firms standing to make tens or even hundreds of thousands of pounds, effectively leaving the client writing a blank cheque;
  • Mums and dads, turning to their friends for advice, are told to ‘lawyer up’ quickly because whoever acts first will have the upper hand; but in doing so, they are not given the support they need, instead invariably being directed into a destructive court battle by their solicitors;
  • Family courts set the tone for all divorce and separation, as everything else is still described by family lawyers as “alternative”.

My cross response – probably, in the process, proving the author’s point about family lawyers, but feeling the need to defend our honour – was that all too often the picture painted of family lawyers is of grasping, money-grabbing charlatans who prey on the vulnerable and force them to write blank cheques with no upfront discussion of costs and who issue court proceedings without thought; whereas (a) we are rightly required to be transparent about costs and think about proportionality at every turn and (b) there is a fresh breed of family lawyer who triages each client, signposts to the right pathway and does not think of court as the ‘norm’. I pointed out the work that Resolution and others have done to persuade government, post-the legal aid cuts and in pursuit of the return of funding for initial legal advice and signposting, that family lawyers are part of the solution, not the problem, a message recently reinforced by Baroness Hale. I signed off, probably rather too tetchily, that all professionals working with separating couples should be rowing together collaboratively, not lobbing sideways grenades.

But having now reflected on that exchange, on the more combative family lawyers out there and on the many children cases of mine which ended up in court last year, I found myself wondering – is my description of family lawyers universally the case? Are we as children-focused in our approach as we could be? And how could we do more to reduce conflict in the work we do?

So here are some thoughts – non-exhaustive, non-Gospel – about changes family lawyers may consider implementing to make the 2020s better for families in crisis. Others’ thoughts (and even – disagreement) welcomed.

1. Get to know our networks & learn from those in them

One of the biggest shifts in our work in recent years is an acceptance by family lawyers that families in crisis have a range of needs, not all of them legal advice fodder. In the children work we do, one or both parents may need therapeutic support, whether to come to terms with the end of the relationship, to learn how best to co-parent post-separation or whatever. The children may wish to speak to someone about how they are coping with their parents’ separation and their hopes for the future. The parents may wish to discuss future arrangements with a mediator and if there are urgent issues which are not capable of quick resolution (for example disagreement over a child’s school), an arbitrator’s determination may be needed. We should embrace this range of needs on parental separation, accept our own limitations and build our networks accordingly, getting to know the range of experts in our area and having the right professionals on speed dial.

It is also right that we should look to those in our network from a therapeutic background to educate us in the dynamics of relationship breakdown. So many of the instructions we get come from a place of stress and extreme emotion; understanding that may lead us gently to challenge the instructions we are getting, to look for the unspoken pointers and to signpost to the right type of support. Expecting parents to take in legal advice and make decisions about their children when they are under water emotionally is short-sighted and bound to lead to conflict.

2. Educate ourselves in all pathways for clients (and don’t say ‘alternatives’ to court!)

It is true that too many family lawyers still talk about “ADR”, hold court out as being the ‘norm’ and don’t tell clients about all of the options, either because they feel there is a commercial imperative to litigate cases; because they don’t understand non-court based options so cannot describe them to clients; or for other reasons unknown. But for clients, we know that court is destructive and the option we should be recommending last.

By the same token, many – myself included – can go to the other end of the spectrum and demonise court, yet in certain cases it is the only option. Being as objective as I can be, my cases which ended up in court last year were where parents – in both cases mums, me acting for the dads – did not agree to overnight contact without any welfare concerns being present and mediation failed to move the dial; where there was suspected parental alienation and wholesale breach of orders by a mum; where my female client was faced with a range of repeated and oppressive, non-children focused applications by a dad; or binary issues such as leave to remove or disagreement over a child’s school. I have reflected carefully on every case and thought – could court have been avoided? In fact the better question is probably, are there therapeutic services to which I could have referred the clients which may have led to a different outcome? In every one of those cases, I have either sent the couple off for mediation or family therapy or have urged them to go but one or both have refused. Early parental education about the adverse impact on children of conflict, and/or of not having a relationship with both sides of their family in most cases, may have made one of the non-court based processes succeed and is a missing link.

As family lawyers we need to be able to describe all options to clients with confidence; not to treat them as standalone, siloed processes but as seamless, complementary pathways to resolution or determination; and listen carefully to what clients want, at all times being sensitive to budgetary, time and other constraints/priorities. A case referred to successful mediation is not a litigation lost; it is a happy client who is more likely to refer a friend as a client, and a mediator who will be waiting to recommend you next time they have a failed mediation. And a case which ends up in court is not a failure; the failure is taking to court the cases that could have been resolved in some other way.

3. Don’t encourage clients to treat MIAMs as a tick-box exercise

We know that MIAMs have not been successful in diverting more separating couples away from the family courts. One only has to look at the latest family court quarterly stats, published in December, to see that – a 5% increase in private law cases year on year being one of the headline statistics https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf The fact that the MIAM continues to focus on mediation only, and is capable of being offered only by accredited mediators, is regrettable and something about which Resolution continues to campaign. Many judges’ cavalier attitudes towards DR (or which more below) are also unhelpful.

But too many family lawyers regard the MIAM as a tick-box exercise, anxious to issue Form C100 and get children proceedings underway. Sometimes, especially where a child is being deprived of any (meaningful) time with one parent, this may be for good reason; invariably, it is not. So the next time we send a client for a MIAM, rather than arming them with a completed application and thoughts of court as the solution, let’s send them with an open mind.

4. Campaign to change the family justice environment

Now, this is a tough one. We all know the ever-growing burdens on the family courts and we can’t expect quick fixes. But all the tools are there. Fundamentally, the Children Act 1989 is fit for purpose and does not need to be changed to achieve the right arrangements for children. What needs to change is the way in which the system works, a fact acknowledged in the interim proposals for reform of the private law system launched by Sir Andrew McFarlane in the summer and consulted on this autumn.

One obvious change is that gatekeepers should more robustly enforce the MIAMs requirement and judges should more routinely exercise their powers under Part 3 of the FPR to adjourn cases for non-court based dispute resolution. Too many cases which don’t need to be in court are clogging up the system and too many judges have said to me that they take the view that once a case is in their court, they should hold onto it. That is, with the greatest of respect, a flawed view as an imposed outcome is more likely to be resented and therefore not respected by one or both parents, making further court appearances an inevitability. The private law working group (in a raft of recommendations in a detailed, thoughtful report) identified the need for more robust enforcement of the MIAMs requirement; it is vital that even before any change is implemented we work with our local judiciary to encourage this. https://www.judiciary.uk/wp-content/uploads/2019/07/Private-Law-Working-Group-Review-of-the-CAP-June-2019.pdf

Arguably, in the harder cases which need court input, what needs to change is the way in which resources are deployed. It can’t be right, as in one of my cases recently, that a father being denied overnight staying contact with his children waits 11 weeks for a FHDRA (in turn after waiting weeks for the application to be processed). There needs to be early (within 2-4 weeks) triage in cases where there are no safeguarding concerns and an interim arrangement imposed (if necessary) so that the status quo imposed by one parent doesn’t become the norm and risk harming the children. This process may be assisted by there being a starting point blueprint for child arrangements, depending on the children’s ages and stages, which could then be departed from at a later hearing after evidence. And enforcement of final orders is vital. The court has a raft of powers available to it but my own experience is that judges are reticent to use them even in cases of obvious breach; I can understand that reticence where financial penalties or imprisonment are concerned, but less so with the non-financial penalties.

5. A Code for parents?

All members of Resolution subscribe to a Code of Practice which, among other things, requires them to reduce or manage any conflict or confrontation; support and encourage families to put the best interests of children first; guide clients through the available options; and use the Resolution Guides to Good Practice in their day to day work. At present there are 16 such Guides in existence and in the context of children cases, those on correspondence and communication are especially relevant https://resolution.org.uk/professional-development/knowledge-resources/?knowledge%5B%5D=17&sort_by_atoz=

But there are two obvious shortcomings. First, the most oft-made complaint to me when I was Resolution Chair was that many are concerned that the Code doesn’t have teeth. Of course, any Code requires people to call out bad behaviour – people need to live and breathe it and not stay quiet about those who don’t – and over the years Resolution has worked tirelessly to equip local regions to deal with offenders and to encourage members to call out persistent bad behaviour by reporting it to HQ through the complaints process. It would be foolish of me to pretend that there aren’t family lawyers who ratchet up the temperature and delight in litigation whatever the misery caused to families; but it is for us as a profession to manage that behaviour by calling it out and not referring children work to those individuals.

Second, getting client buy-in. Although we advertise ourselves as Resolution members and extol the virtues of the Code, how many of us have quickly been faced with clients saying, in the face of perceived unreasonable behaviour by the other parent or combative correspondence from their solicitor, “you need to be more aggressive, I feel like we’re always on the back foot, why are we always responding to their letters” etc etc. This is especially difficult when the other solicitor is not a Resolution member. I had one such case recently in which, between issue of the application and the FHDRA, the other solicitor wrote around 70 letters, many containing highly contentious statements about my client and (in effect) dictating contact arrangements. My client was apoplectic and kept asking me to respond robustly, considering me meek when I kept telling him that further correspondence wouldn’t move the case on, a judge wouldn’t read it and he needed to regard this as a long game and present at the first hearing as the reasonable parent (which he did, to his advantage). But from his perspective – how frustrating to be told to “play the long game” where it concerned seeing his children and to leave unanswered a range of allegations which he disputed and feared a judge would believe if no response was made.

Is the answer to require parents to sign up to their own Code? One which contains similar themes as the Resolution Code for its members, and which may be tailored to the individual case in the same way as clients crafting an anchor statement in a collaborative case, so that correspondence or actions which breach that Code can be called out by reference to the parents themselves, not just the lawyers. And how may we deal with unrepresented parents in all of this? Perhaps a Code to which they are signposted online and/or which the Court sends to them when one of them wishes to issue an application?

6. Consider how we work/charge for our work and be more innovative

An acknowledgement (as I must) – I work in an ivory tower, where my clients (generally speaking) can afford to have full service representation, though that does not stop them (rightly) from being concerned to understand the costs they will be charged and from having a moan about them from time to time. But quite often, I am approached by a parent who either has a limited budget for costs, where one’s knee jerk reaction can often be just to issue court proceedings so as to avoid the risk of duplication of costs; or those who cannot afford a lawyer at all.

In our plight to be our best selves, counter-balancing the need to make a living with a desire to “give something back”, it is right that we should look beyond the hourly rate and think about other ways of working so that our/other legal services are more accessible :

  • For some parents, a fixed fee initial consultation is all they need to equip them with the information they need to go off and do it themselves, whether through a kitchen table discussion or mediation leading to a parenting plan, or in the more difficult case, representing themselves in court.
  • Often in the cases where the parent, after that initial meeting, finds themselves needing to issue court proceedings, invariably we will agree a fixed/capped fee for the ad hoc work that my firm may do, e.g. drafting the application notice, checking over statements etc. Sometimes we come on the record very shortly before a hearing and come off very shortly afterwards so that the client’s resources are focused around the key chunks of activity; in other instances I signpost clients to a direct access barrister for a hearing.
  • Somewhere on the spectrum between early resolution and court determination, I signpost to early neutral evaluation where parents may benefit from a steer to help them reach their own agreement.
  • As a mediator I will fix a fee per session of mediation and for any drafting, and be quite directive, which many parents have found a useful and affordable way to get to agreement about parenting arrangements without court.
  • I have also begun to discuss with children arbitrators the circumstances in which they will adjudicate a dispute between two unrepresented parents (or, in one recent case in which I sought to signpost a couple from my mediation table to an arbitrator, one represented and the other not).
  • As I heard about when at the IACP conference in Chicago in October, it may be possible to pull together a team (say in a collaborative model, or a mediation which automatically transitions to collaborative if impasse is reached) who agree a fixed fee for the couple.
  • Finally I have a good relationship with many firms who, being non-Central London based, can assist parents at a fraction of the cost and in appropriate cases will make that referral in a seamless way, picking up the phone to give some background so the client is not giving the same instructions (and being charged for doing so) twice.

There is innovation all around and we must embrace/build on it.

There is also the pro bono work which has become a feature of our practice for most of us, whether through work undertaken in the office, at a legal advice centre, at our local court or in some other way. A particular goal I have set myself for 2020 is to be more sophisticated about how I select the pro bono work I do. Increasingly, my focus is the children. If somebody contacts me in a state of distress because (as the non-resident parent) they are not seeing their children, or (as the primary carer) because their ex is being oppressive and the children are beginning to be affected, or because children are seemingly being harmed in some other way by the status quo, instinctively I want to do what I can to help. As a compass, I’m struggling to think of a better one.

7. Are there circumstances in which we should decline to take on/continue to act for a client?

This is a topic which always attracts a lot of comment when I raise it on Twitter. It is a regulatory minefield; generally speaking, one can only stop acting for a client with good reason and on reasonable notice. Some good tips and points to be aware of are in this article https://www.lawgazette.co.uk/practice/how-to-sack-a-client/5047782.article

As I have got older and more confident in challenging clients where I think they are acting out and not in the best interests of a child, I have been more ready to suggest to a client that perhaps I am not the right solicitor for them. Sometimes a parting of the ways comes right at the start, when I talk about how I work and say to them, bluntly, that if they want a Rottweiler I am not their woman. However, most parents start out with good intentions and wanting to resolve things amicably, so it is only further down the line that differences between a parent and their solicitor arise. I can think of one particular case in which I was acting for a mum who was so aggrieved with the dad that she would not share with him practical details like the type of nappy the child needed and kept telling me she wanted to move to a range of possible places, each clearly designed to make contact as difficult as possible rather than being motivated by the usual (genuine) reasons such as a new job or relationship. In the end our differences were just too great and there was a mutual parting of the ways when I said, yet again, that I was not comfortable to write the letter she wanted.

That is, however, an extreme example of client behaviour. Usually our instructions (and the sentiments underlying them) are more nuanced. What of the mother who is denying all overnight contact on the basis that she has keenly held (though not objectively concerning) anxieties about the father’s ability to parent the children? Or the father who is doggedly pursuing his “right” to 50/50 shared care when that so obviously seems not to be the right outcome for the children in the particular case? Are we to be judge and jury and challenge our client? How, and where does one draw the line?

When I last Tweeted on this topic a year ago, various comments were made :

During my last 4 years of practice as a solicitor I incorporated Resolution code of practice and a “no court” clause into my clients’ T&Cs. I’d recommend it to every member. Let those clients who think their money will talk for them have only the choice of the worst lawyers”

@MediationNotLaw

Surely the ultimate blurred line in family law practice. Does ‘taking instructions’ mean I’ll do whatever you tell me? Far too often it does – to the detriment of the profession and its ethics

@psychrismills

Have never understood passive acceptance of client instructions when the inevitable result will be damaging for the family. Family lawyers must challenge as much as they guide. What’s the point of us otherwise?

@larkinslaw

What if your terms of business allow termination of retainer if client insists on a course of action that you consider to be against a child’s interests? Plus of course if the solicitor/client relationship has broken down you can terminate. Need to be careful though

@TopFamilyLawyer

When I was a younger lawyer I often found it hard to properly challenge clients who gave those sorts of instructions. With experience it’s easier. Perhaps training on this would be good for lawyers?

@M_Bataillard

And sounding an appropriate note of caution –

Solicitors need to be careful when sacking a client Jo, clients have the right to give instructions that are contrary to our advice and personal ethics. From an #ethics point of view we can’t really know if the sols are giving good advice but receiving instructions to block contact. Also important to balance the code requirements to offer clients a good standard of service and follow instructions. One of the main complaints against family solicitors is that we don’t act on client instructions…we face the second highest rate of complaints and it’s a genuine struggle for us to get the balance right

@avoidgravity

8. What else could family lawyers do to reduce conflict and improve the lot of separating families in the decade ahead?

For other suggestions, I return to Twitter following me raising this question last year –

The suggestions made were many, varied and insightful –

One of the key things I think add a value is to address with the client the…common causes of further conflict and how they can act to reduce these. Misunderstandings and misconceptions that one’s own client holds are something we can do something about, whereas ‘the other side’ and how they behave is actually beyond control. As professional advisers we are well-placed to identify the problematic ideas and behaviours our own clients exhibit and seek to break these down. Too much focus is often placed on the ‘opponent’ and dealing with a reaction to their activity, as opposed to proactive conflict resolution within our sphere of influence. It is easy but unhelpful to send winning arguments in correspondence. It is harder but productive to restrict letters to those that will actually be useful

@mrichardsonlaw

Family lawyers tend to polarise because their clients do. It’s contagious. To date lawyers have no training in managing their own boundaries in the face of clients’ extreme stress. Authority, boundaries and containment are three related zones. I think there are some key insights that could make this challenging job less prone to invisible psychological potholes

@psychrismills

I’ve always thought that the SPIP comes too late – the court here won’t order until late in proceedings even where recommended by CAFCASS – perhaps suggest an earlier SPIP attendance

@ChrisLongbottom

A difficult area often dealt with by inexperienced/litigious lawyers and invariably without support from experts to help understand the complex emotional impact of separation on behaviours. Should a specific qualification be required to do this challenging work/don’t kids deserve that?

@Williamslegal

The requirement for lawyers to do training about child development, relationship dynamics and the lasting effect on families of litigation over children. That and a database of local therapeutic resources as an alternative. Oh and a realisation that court is rarely the answer!

@GillianFLIP

We could ask our clients to try and think of something positive the other parent has done/does. To try and find some balance to the negative assertions. If we can lead negotiations with a positive, it might prevent the downward spiral of blame and defence

@tglanvill

How about every correspondence that is sent is always headed “WE PUT CHILDREN FIRST” before the content?

@Michelle_Webley

Advising against court proceedings unless there are welfare/safeguarding concerns and promoting communication, discussion and negotiation between parents with the assistance, if necessary, of mediators, collaboratively trained lawyers, family therapists and counsellors

@DawnMGore

With the lawyers’ role I do think in the profession early intervention is something we need to improve e.g. referrals to the right expert/program, speak to the other lawyer on the telephone, be mindful of the language we use to our client etc

@EtheringtonMarc

Here’s a starter for ten. We all know the code of “my client states…”. Rather than actually saying that, why don’t you talk your client down?

@JeremyWesthead

Managing clients’ expectations and ensuring that they put the child first is key. Also communication is a huge one for me, in this day and age correspondence are often inflammatory rather than conciliatory which baffles me

@AmandaAdeola

It’s always sad when lawyers make difficult situations even harder. To us, child focused divorces are non-adversarial and focus on collaboration and resolution as opposed to one lawyer “winning”. It’s a change of mindset

@CollaborativeTO

Refer them to a positive co-parenting programme

@adamcolthorpe

Declining to write letters to opposing agents which are a point by point rant about all the behavioural allegations in the letter they sent you, and focusing instead on solutions. I like, “my client does not accept xyz but in the interests of moving forward proposes abc…”

@DianneMillen

If the solicitors were to put the children firmly in the centre of all that happens. The parents often lose perspective due to anger, hurt, fear etc. It must be the solicitors’ role to pull them back and make them consider the child not focus on point scoring and revenge #hardjob

@SpanielsSuper

In conclusion…

There are no easy answers. Whenever I tweet about these issues, among the responses from lawyers and therapists, there are comments from parents angry at our profession and laying all blame for conflict in children cases squarely at our door. Hopefully many parents can see, objectively, that we all have a role to play in changing children’s experience of parental separation into something more positive.

But what is apparent is that we can, and should, do more as family lawyers to protect children from the fallout from parental separation by keeping down the temperature in every case as far as possible. Ultimately, we are but one piece of the jigsaw and systemic changes, early education of parents (really from the point of a child being conceived) about the importance of good co-parenting when together and especially on separation, and better support for and signposting of parents on separation, are also vital.

So let’s do all we can in 2020 (and beyond) to make positive changes for separating families.

A civil(ised) end to the decade

The last day of the decade started abruptly for me. I was awoken from my slumbers in a hotel bed in Berlin by a text from a producer at BBC Radio London asking if I’d go on their breakfast show to talk about the advent of civil partnerships for all.

A potted history

The fact that the first civil partnerships for opposite sex couples are being formed from today in England and Wales is down to the perseverance of one couple, Charles Keidan and Rebecca Steinfeld.

Same sex couples have been able to form civil partnerships since December 2005, at a time when marriage wasn’t available to them. However, the introduction of same sex marriage in March 2014 created an anomaly – same sex couples had the option of two types of formalised union, but opposite sex couples only one – marriage.

Charles Keidan and Rebecca Steinfeld took the issue to court, having to go all the way to the highest court in the land, the Supreme Court. In the meantime, government prevaricated over whether to abolish civil partnerships altogether, given that marriage was available to all. However, the Supreme Court concluded that government had had long enough to ponder that issue; and declared that it was in breach of opposite sex couples’ human rights for there to be such inequality of treatment between same sex and opposite sex couples.

https://www.supremecourt.uk/cases/docs/uksc-2017-0060-press-summary.pdf

In October 2018 Theresa May announced that government would change the law. Tim Loughton MP had already introduced a private member’s bill. Regulations were laid before Parliament in October 2019 which amend the eligibility criteria to extend civil partnerships to opposite sex couples in England and Wales but maintain the position on conversion rights so that only same sex couples can convert their civil partnerships to marriage for now, pending public consultation.

The position in Scotland and Northern Ireland

Issues relating to civil status are devolved. In June, the Scottish government announced a Bill would be introduced to ensure mixed sex couples have the same choices of marriage or civil partnerships. The Civil Partnerships (Scotland) Bill was introduced in September and is currently pending. In Northern Ireland, opposite sex couples will be able to enter into civil partnerships from 13 January 2020.

How popular are civil partnerships likely to be?

The latest marriage statistics, for 2016, were published in March. They show there were just under 250,000 marriages in England and Wales in 2016, c97% – around 242,500 – between opposite sex couples. That represented a 1.7% increase on 2015. There were c7,000 marriages between same sex couples, an 8.1% increase from 2015. Note that 2016 was only the second full year of marriage being available to same sex couples.

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2016

Marriage rates are at historic lows, despite a small increase in the number of people who got married in 2016.

Government estimates that 84,000 civil partnerships between opposite sex couples will be formed in year 1. Inevitably there will be an initial spike to reflect the fact that people who have waited many years for this development will now take advantage of the change in the law and this is likely to tail off.

Extrapolating from the experience of same sex couples – in 2006, the first full year of civil partnerships being available to them, there were 16,100 civil partnerships formed. This levelled off at around 6,000 per year until same sex marriage became available in March 2014; thereafter the number of civil partnerships formed has been small –

2014 – 1,683 (having been 5,646 in 2013)

2015 – 861

2016 – 890

2017 – 908

2018 – 956

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/civilpartnershipsinenglandandwales/2018

In 2016, the most recent year for which we have statistics for both types of union, there were 7,019 marriages of same sex couples and 890 civil partnerships; or about 7 times as many marriages as civil partnerships. If behaviours among opposite sex couples are the same, based on 2016 marriage numbers we may expect c30,000 civil partnerships a year. However – and it remains to be seen – it may be that marriage is especially popular among same sex couples as it was so hard fought for; and given how long opposite sex couples have waited for civil partnerships, they may be more popular than my crude analysis suggests.

Is there any difference between marriage and civil partnerships?

The short answer is – very little.

The Government Equalities Office has produced a useful table of the similarities and differences between civil partnerships and marriage as it applies to same-sex and opposite-sex couples https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/851152/Marriage_and_Civil_Partnership_in_England_and_Wales.pdf

Practically speaking –

  • Civil partnerships bring all the same rights and responsibilities as marriage
  • their formation is slightly different – there is no solemnised form of words, just the signing of a civil partnership document. But the same requirements as marriage apply in terms of age, notice etc
  • there is the same eligibility for state pensions and the same tax and inheritance rights
  • the same remedies are available on dissolution of a civil partnership as on divorce – property adjustment, lump sums, maintenance etc
  • an important distinction is that whilst an opposite-sex marriage will be recognised universally, a civil partnership will not be recognised in every country. This is important for couples to be aware of if moving overseas.

What’s all the fuss? Why not just get married?

This is a commonly asked question.

Legally, the fuss arose because it was clearly discriminatory to deny civil partnerships to opposite sex couples while they remained available to same sex couples. Many assumed government would deal with the anomaly by abolishing civil partnerships altogether, especially once their popularity waned among same sex couples with the advent of marriage.

Opposite sex couples wishing to enter a civil partnership often cite celebrating not getting married. They don’t like the convention and vows associated with the institution (even as we move towards liberalising they way in which marriages are formed https://www.gov.uk/government/news/first-ever-marriage-review-to-free-up-dream-wedding-venues ). They cite its patriarchal roots and outdated nature.

Ultimately, it’s about choice. Statistically, relationships are likely to flourish if a couple has committed to each other in some tangible way. Although, in my practice, I see some excellent examples of cooperative co-parenting post-separation, and children are more likely to be harmed by being exposed to conflict than the fact of separation per se, generally speaking the most stable upbringing for children will be if they are living with parents who are married or CP’ed.

Some, such as Rebecca Steinfeld and Charles Keidan, are savvy and acutely aware of their lack of legal protection if they live together without formalising their relationship. Wishing to benefit from the same tax breaks as married couples, and the same treatment if the relationship ends through separation or death, are other drivers for people wishing to enter into a civil partnership.

So does this all mean that cohabitation reform is unnecessary?

No.

Cohabiting couples are the second most common family type in the UK and the fastest growing. There are around 3.3million cohabiting couples and this is expected to double by 2032 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2018

Although the law changed in Scotland in 2006 to provide property rights for these couples on separation or death, the law has remained stubbornly unchanged in England and Wales (despite Law Commission recommendations in 2007) for many years. Private members’ bills have been introduced in the House of Lords but languished/fallen with successive elections https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2019-0030

The problem is that the majority of cohabiting couples are ignorant of their lack of rights until it’s too late. They assume, wrongly, that they have a common law marriage and the law will protect them. It will not. https://www.comresglobal.com/polls/resolution-cohabiting-couples/

So while we celebrate the introduction of civil partnerships for all from today, let’s not forget the plight of cohabiting couples and campaign for law reform for them in the near future. Not all know that they have to formalise their relationship in some way to acquire rights; and given that that takes two people, not all can. Changing the law to protect them safeguards children. It has got to be right that we recognise the reality of what is happening in modern society.

For now…

Let’s celebrate the many wonderful couples forming civil partnerships today

https://www.google.co.uk/amp/s/www.bbc.com/news/amp/uk-50937894

https://www.google.co.uk/amp/s/www.bbc.com/news/amp/uk-50953410

https://www.google.co.uk/amp/s/amp.theguardian.com/uk-news/2019/dec/29/first-of-84000-couples-get-set-for-a-civil-partnership