Stamp duty, domestic abuse and cohabitation: The last week in family law

An appeal by a surrogate mother and her husband against an order limiting the role that they should play in the life of a child she gave birth to has been dismissed by the Court of Appeal. The mother agreed to carry the child on behalf of a male same-sex couple, the embryo having been created from the couple’s sperm and a donor egg from a Spanish egg donor. However, the surrogacy arrangement broke down. The mother and her husband indicated that they would not hand over the child to the couple, and the couple then commenced legal proceedings. Mrs Justice Theis in the High Court ordered that the child should live with them. The mother and the husband did not appeal against that decision, but did appeal against orders made by Mrs Justice Theis limiting their contact with the child and the exercise of their parental responsibility in relation to the child. The Court of Appeal dismissed the appeal, finding that Mrs Justice Theis’s decisions about where the child should live and about the role that should be played by the other family were ones that she was entitled to reach on the evidence before her.

In the Budget the Chancellor has given divorcing couples relief from higher rates of stamp duty. The higher rates were introduced to crack down on the buy-to-let market, imposing a 3 per cent surcharge on those buying properties in addition to their main home. While the policy was aimed at landlords, it had the unintended consequence that in certain circumstances couples going through a divorce would have to pay the higher charge, for example if a court ordered one spouse to allow their partner to continue living in the jointly – owned family home, that partner would be hit by the additional rate if they bought a new property. Philip Hammond has now moved to give couples in this situation relief from the additional rate, although the Budget wording suggests that a court order may be required in order for the exemption to apply – informal arrangements between splitting couples may not be enough.

The Office for National Statistics (‘ONS’) has published its annual bulletin on domestic abuse in England and Wales, for the year ending March 2017. The bulletin reported that an estimated 1.9 million adults aged 16 to 59 years experienced domestic abuse during the year, comprising 1.2 million women and 713,000 men. The police recorded 1.1 million domestic abuse-related incidents and crimes in the year and of these, 43% were recorded as domestic abuse-related crimes. The group most likely to be victims of domestic abuse are women aged between 16 and 19. More than 10 per cent of women in that group say they have experienced domestic abuse in the past year. The ONS says its analysis of the figures indicates a gradual downward trend in levels of domestic abuse.

The Department for Work and Pensions has published statistics for the Child Support Agency (‘CSA’), for the quarter up to the end of September 2017. Since November 2013, no new applications have been made to CSA schemes and existing cases are now being closed. Parents may work together to set up their own family-based arrangements, or open a Child Maintenance Service (‘CMS’) case. The statistics show that the total caseload of the CSA continues to fall due to the Case Closure process, to 906,400. 791,400 of these had no current liability and were not making any payments; these could be cases which are in the case closure process or cases which have arrears but no on-going liability. Cases with arrears and no current liability are not being selected to go through the Case Closure process. Furthermore, cases with arrears that do have a current liability cannot be fully closed, so cases with arrears form an increasing proportion of the caseload. Forty-five per cent of cases with arrears have at least £1,000 owed. In the year to September 2017, the overall maintenance collected and arranged fell to £340m, of which £64m was arrears. This is compared to a September 2016 figure of £815m, of which £95m was arrears. The amount is falling due to the CSA Case Closure process and all new cases joining CMS.

And finally, millions of unmarried couples living together are unaware that they are at severe financial risk as a result of the current legal system, national family justice organisation Resolution has warned. As part of its ‘Cohabitation Awareness Week’ Resolution has published the results of a poll it commissioned, which indicates that two-thirds of people in cohabiting relationships are unaware that there is no such as thing as ‘common-law marriage’ in this country. The poll also found that seventy-nine per cent of the public agree that there is a need for greater legal protection for unmarried couples upon separation. Resolution chair Nigel Shepherd says the law needs to change, as these results show it “is falling desperately behind the times”.