Marriage, divorce and child maintenance: The last week in family law

The Government has written to the Law Commission to say it’s not the right time for a full review of marriage law, but hasn’t ruled out further work in the future. In December 2015 a scoping report from the Law Commission identified issues with the way marriages were conducted in England and Wales. It highlighted potential problems with how marriages are registered, what paperwork a couple must complete before their wedding takes place, who can conduct marriages, and where they can take place. The Justice Minister Dominic Raab has said in a letter – whilst acknowledging marriage as “one of our most important institutions” – that any opportunities for primary legislation will be focussed on protecting the most vulnerable children and families at this time. Law Commissioner Professor Nick Hopkins said: “Getting married can be one of the best days in someone’s life. But our Victorian laws haven’t kept pace with the modern world.  Reform has the potential to allow all couples to marry in a way that’s meaningful to them. We understand parliamentary time is precious at the moment but don’t believe that the need for reform will go away. We hope we can continue our work in this area in the future, and welcome the Minister’s promise to keep the situation under review.”

Couples will be able to apply for a divorce online, as part of a £1 billion change to the justice system. The Ministry of Justice has announced that an online divorce pilot is now being tested at three sites in the UK, and is due to be extended to other centres in the coming months, with the ultimate plan to roll it out nationally. The scheme enables couples to apply for an uncontested divorce digitally via ‘smart’ forms, which tailor questions based on the circumstances of the marriage breakdown. A spokeswoman for HM Courts and Tribunals Service (‘HMCTS’) said: “We have a world-leading legal system and are investing over £1bn to reform and enhance our courts to deliver swifter justice. We have launched the first divorce application services online at three sites and will be extending the testing over the coming months. These measures will simplify the process for divorce applicants and help progress applications quickly.”

Meanwhile, in related news HMCTS Chief Executive Susan Acland-Hood has revealed that the service is looking to move forward with plans to allow online applications for a financial remedy. In a blog post she said that the next 18 months will see improvements to online divorce that move it away from ‘print and post’, expand it from a limited ‘private beta’ to a ‘public beta’ available to everyone, and add the next component, “which allows for financial remedy to be dealt with through the same system, just as easily.” She also said that HMCTS was beginning work on a new project on public family law, to support seamless digital working to and through court, so that evidence can be submitted, bundled and shared electronically and cases can be managed much more securely and effectively. This, she said, “will help us to test and develop a core document management system for the family courts that can then be extended for use in private family law and other jurisdictions and will also enable in-court digital presentation of evidence.”

The Department for Work and Pensions (‘DWP’) has announced new powers to stop parents avoiding paying child maintenance. Under the present system, if a parent owes child maintenance, deductions to recover that debt can currently only be made from a bank or building society account held solely by them. This has meant that a small minority of parents are cheating their way out of supporting their children by putting their money into a joint account with a partner. New laws will be brought in to allow deductions to be made from joint accounts in order to recover child maintenance arrears. The DWP said: “It is believed closing this loophole could stop a number of parents getting away with not paying their child maintenance each year – leading to more than £390,000 additional child maintenance being collected.”

And finally, new research published by the Nuffield Foundation shows that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. In practice, says the report, these claims cannot be investigated by the court or easily rebutted by the responding party, leading to unnecessary conflict and a system that is inherently unfair. The researchers recommend removing fault entirely from the divorce law and replacing it with a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months.