Alexiou Fisher Philipps LLP
Family Law 2018: plus ça change. Family lawyers (and even the courts) continue to bang the drum calling for change in familiar areas: reform of the divorce process is but one example. There was broad consensus in the run up to the election that the law was crying out for reform, and in a timely reminder of the issue, Mrs Owens  EWCA Civ 182 failed, ridiculously, to secure a divorce because she had to prove that her husband was at fault (whatever this might mean) for the breakdown of the marriage. She remains trapped in her unhappy marriage until she can issue a fresh petition (without the need to prove fault and without the need for the husband’s cooperation) in 2020. Maybe by then Parliament will have cleared its current workload and focused on the issue, but the profession is not holding its collective breath. A shame, since before the election all parties appeared to support reform. Getting a statute on the books now appears as distant a prospect as ever. For now, obtaining a divorce in England is less 'Modern Families' and more 'Downton Abbey'.
Discussions about transparency in the family court system continue to feature large in legal journals and the mainstream press alike. The position in the Court of Appeal is clear: only exceptional circumstances justify the departure from the normal principle of matters being heard in open court, as stressed in Norman v Norman  EWCA Civ 49. However, the position of the High Court is anything but, with different judges taking differing views as to whether the default position should be that hearings are held in public or private. Upcoming Court of Appeal cases may throw some light on this vexed issue. Practitioners generally remain wary in particular of the blackmail opportunities (subtle or otherwise) that arise if there is open season on what can be reported in the private law arena.
Another continuing theme is the underfunding of court system and judiciary. The MOJ faces further substantial cuts next year (and beyond) but list officers are already struggling to provide prompt access to justice. The trend is towards more complicated cases being considered by less qualified and experienced tribunals. Mistakes happen.
By government luck or judgement, privatisation of family justice continues to build. A major change has occurred in the introduction of arbitration in some private law children matters. But it cannot and will not work for all children cases, just as it cannot and will not work for all finances cases. The vast majority of those who most need access to justice cannot afford arbitration and it is naïve to expect the same majority to settle their differences with a mediator. No mediator can force a settlement and the government needs to understand that forcing parties into privatised justice, for some, will mean they are effectively in the law of the jungle.
It therefore comes as light relief to enter, from time to time, the rarefied atmosphere of the so called big money case. Those able to build wealth of exceptional magnitude continue to try to rely on their exceptional contribution to the growth of that wealth as a reason for departing substantially from the White v White equal split of marital acquest.
But Work v Gray  EWCA Civ 270 represented a victory for the non-financial contribution: Randy Work and Mandy Gray had nothing when they met, but Mr Work had amassed some $225 million when they separated in 2013. Along the way Ms Gray raised the two children and travelled by Mr Work’s side, but what was the significance of their respective contributions? Holman J at first instance thought that Mr Work was essentially in the right place at the right time rather than possessing a unique quality unmatched by his spouse, for whom the contribution of having moved with husband and family to Japan was not to be underestimated. He had not made any ‘unmatched’ contribution given that the judge also found that Ms Gray had made a significant contribution by moving to Japan to live with Mr Work. Mr Work was unimpressed by the award to him of 61% of the assets in the case but will have to live with it after the Court of Appeal dismissed his arguments for a greater departure.
Returning to the lower courts and the majority of their litigants, there is much excitement amongst the payers of maintenance about a perceived sea change in favour of fixed term maintenance orders as opposed to joint lives. Buoyed by Wright v Wright  EWCA Civ 201 some have sought to review their old settlements, in particular as to duration, but a cautionary tale emerged in Mills v Mills  EWCA Civ 129 where the Court of Appeal not only refused to limit the duration of the maintenance order but also increased the monthly amount payable.
What if the marriage was a short one? What is a short marriage? The answer was provided by Sharp v Sharp  EWCA Civ 408, in which the Court of Appeal overturned the decision at first instance to split the parties’ assets equally. The court held that the wife received bonuses “way beyond the level of her previous earnings purely as a result of her employment and... without any contribution, either domestic or business, from her husband”. The husband was awarded approximately £2m of the total assets worth approximately £5.4m.
The theme of children cases remains unchanged: the interests of the child must be put first. The past year has seen the courts grappling with how to ensure that the welfare of the child is best met in a number of difficult and emotive cases. In J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4 the court came to the conclusion that the least harmful outcome for five children living in the Jewish Charedi community was for no direct contact to take place with their father, who was living as a transgender person following separation. Jackson J found that were direct contact to take place, there was a real risk that the children and their mother would be marginalised or excluded by the ultra-orthodox community the children were being raised in.
This year has seen the court faced with some unbelievably difficult life and death decisions. The heartbreaking case of Charlie Gard  EWCA Civ 410 has put every level of the Family Court (all the way to the ECtHR) under the media spotlight, and has even seen the Vatican and President Trump attempting to intervene. The exceptional case of Re JS (Disposal of Body)  EWHC 2859 (Fam) dealt with the application of a terminally ill 14-year-old girl to have her body cryogenically frozen on her death. Whilst her mother supported this wish, her father (from whom the girl was estranged) had reservations. A series of orders were made by the court giving the mother the necessary powers to make the decisions about what should happen to her daughter’s body following her death, in order that the girl’s wishes could be carried out.
We have had further clarification in relation to the courts’ approach to internal relocation. We know from 2015’s Re C (Internal Relocation)  EWCA Civ 1305 that the court will take the same welfare-centric approach when dealing with both internal and external relocation applications. In Re R (Internal Relocation: Appeal)  EWCA Civ 1016, the father tried to extend this reasoning to argue that, where the mother had upped sticks to County Durham, the court should act as it would in an international case and order summary return of the child to the family home in Kent. The Court of Appeal disagreed, and the father’s appeal was dismissed.
Surrogacy has proven itself to be another area of the law where legislation is failing to provide for the realities of family arrangements. In C v E  EWHC 2643 (Fam) the court felt unable to make a parental order where the surrogate mother and her husband would not give their consent to it, despite the child already living with the intended (and biological) parents. The court instead made a child arrangements order, and indefinitely adjourned the parental order proceedings. The court recently described the state of surrogacy law as a ‘ticking legal timebomb’ with the prospect of some children ending up ‘stateless and parentless’. Again urgent change is needed.
You have read an article that hasn’t mentioned Brexit. We believe you will be grateful for this. It is much discussed amongst international practitioners, but the bottom line is that none of us knows what will happen. So we haven’t written anything about it.