Fees, transparency and pre-nuptials: The last week in family law

Family lawyers’ group Resolution has said there is “no justification” for government plans to increase the court fee for a divorce, from £410 to £750. The basis of the planned increase was not that the fee needed to be increased to cover the cost of divorce proceedings, but rather that the Ministry of Justice felt that divorcing couples would be prepared to pay more. Resolution does not accept this, claiming that the new fee would be beyond the reach of many, who would not be eligible to claim an exemption from the payment of a fee. This could result, they say, in people having to remain in failed marriages.

On Monday the guidance of the President of the Family Division on the publication of judgments came into effect. The guidance ensures that far more family court judgments will be published in future, with the aim of increasing ‘transparency’ in what the family courts do, to inform the public of the work of the courts and counter the charge that they operate a system of “secret and unaccountable justice”. It will be interesting to see just how many judgments will be published from now on. Of course, they will only aid transparency if they are read and, most importantly, understood.

It has been reported that the Law Commission is to recommend that pre-nuptial agreements should be made enforceable. The Commission has been looking into the subject of matrimonial property, needs and agreements for some time and is due to publish its report on the 27th of February. The present position on pre-nuptial agreements is that they are not binding upon the court, but they are a factor which should be taken into account when deciding upon a financial/property settlement on divorce. However, the Supreme Court stated in the leading case Radmacher v Granatino that the court should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to the agreement. This still leaves some uncertainty about whether a court will give effect to an agreement. If the Commission does, indeed, recommend that they be made enforceable, and if that recommendation is made law, then that uncertainty will finally disappear. We will have to wait until the 27th for confirmation of what they are recommending.

Meanwhile, both houses of parliament have been debating proposed changes to the child maintenance system, in particular the introduction of charges for using the new Child Maintenance Service. Single parent charity Gingerbread says that the charges will mean that children lose out. The Government, however, counters this by saying that the charges will ‘incentivise’ parents to reach their own agreements between themselves, without having to use the service.

It has been reported that child contact centres may have to close, due to funding cuts by councils. These centres provide a vital role in enabling children to retain contact with the ‘non-residential’ parent. It is therefore to be hoped that the necessary funding for them can be found, to enable them to continue to provide that service.

The controversial clause in the Children and Families Bill which states that courts should ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’ has been amended. After a campaign by a consortium of children’s charities who were concerned that the clause could lead to separating parents assuming they are legally bound to equally share access to their children, the clause has been amended to clarify that ‘involvement’ means involvement of some kind, either direct or indirect, but not ‘any particular division of a child’s time’.

And finally, new research has revealed that couples are now most likely to end their relationships after just two years and nine months.