Legal aid, pensions and divorce: The last week in family law

The Ministry of Justice has suggested that its long-awaited report reviewing the effects of the legal aid cuts of 2013 may not be published this year. Speaking at an all-party parliamentary group on legal aid Matthew Shelley, a deputy director at the Ministry of Justice, said that his team will aim to finalise its ‘staff assessment’ of what has happened since the cuts came into force in April 2013 by the end of the year, but that he could not commit to a specific date for when the report will be released. The cuts abolished legal aid for most private law family matters, including dealing with finances on divorce, and sorting out arrangements for children following separation. It is hoped that the review will recommend that some of the cuts be reversed.

The Pension Advisory Group, an interdisciplinary group of judges, family and pension lawyers, pension experts, academics and a mediator, has published two reports on the legal issues of pensions on divorce and valuation and experts in such cases. The Group was established to provide an in-depth analysis of how pensions on divorce should be approached, particularly in relation to valuing pensions and offsetting them against other capital assets. The first report reviews legal questions, including how the law on financial claims on divorce operates in this context and when to instruct an expert. The second reviews the assumptions used by experts when valuing pensions for the purposes of sharing or offsetting, and any desirable qualifications and regulation of the experts. The Group is seeking responses from practitioners to the reports, after which it will prepare a guide to be adopted by the Family Justice Council and higher courts for use by the courts and family practitioners in England and Wales.

Resolution, the association of family lawyers, has repeated its call for the introduction of no-fault divorce, at its annual conference. The call was echoed by Lady Hale, the President of the Supreme Court, who gave a speech at the conference. Lady Hale also proposed that an online ‘one stop shop’ for divorce be created, where all issues relating to divorce, including finances, arrangements for children and child support could be dealt with, rather than have those matters dealt with separately, as is the case today.

The President of the Family Division Sir James Munby has issued interim guidance for defective divorce petitions and divorce decrees. The guidance follows a number of recent cases that were brought to the President’s attention in which decrees nisi and absolute have been granted notwithstanding that the divorce petition had been issued within one year of the marriage, which is not allowed, or that the relevant period of separation had not elapsed. In some of these cases the Queen’s Proctor had applied to the court to have the divorce decrees set aside. The interim guidance sets out in detail (pending the outcome of the Queen’s Proctor’s further investigations and the issue of further Guidance) what practice should be followed in any case in which it is discovered that a decree has been wrongly granted. Sir James says: “HM Courts and Tribunals Service and judges will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry. Communications should accordingly be expressed in appropriately sympathetic and apologetic language.”

The Queen has approved the appointment of The Rt Hon Sir Andrew McFarlane as the next President of the Family Division, from 28 July 2018. The appointment will follow the retirement of Sir James Munby on 27 July. Sir Andrew was called to the Bar in 1977 and took Silk (Queen’s Counsel) in 1998. He was appointed a Recorder in 1995, a Deputy High Court Judge in 2000 and a High Court Judge in the Family Division in 2005. He was Family Division Liaison Judge for the Midland circuit until his appointment as a Lord Justice of Appeal in 2011, where he is the Supervising Lord Justice for Family Cases.

And finally, the parents of Alfie Evans, the 23-month old child who has been on ventilation in hospital after becoming seriously ill with a catastrophic and untreatable neurodegenerative condition, have had further appeals, to the Supreme Court and the European Court of Human Rights, rejected. They are seeking to be allowed to take Alfie to Italy for treatment, but Mr Justice Hayden did not allow this, saying that there were risks if Alfie were to travel, and that those risks were not worth taking, as there was no prospect of treatment. The hospital withdrew Alfie’s life support on Monday.