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Expert advice is still key

Sarah Duckworth and Judith Fitton, partners at Mundays LLP, discuss topical points currently arising in family and divorce law.
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Brexit and family law
By the time this article is published, we may or may not have certainty over our future as far as ‘Brexit’ is concerned. Family law has been intertwined with Europe for many years now. Some of it good, some not so. We will be losing our place in the European Judicial Network which has been a subtle influence for good in establishing a working forum for discussion and monitoring the practical operation of family justice across the member states.

If we are on our own, we will have autonomy and can act independently in the field of global family law, but time will tell if our withdrawal from the European Union impedes family law from continuing to adapt and change in a way which reflects changing social values and effects modernisation of the family justice system. We will dispense with the complex Maintenance Regulations that have caused confusion and difficulty which most family lawyers will not lament the loss of.

Most importantly there will not be chaos or void. Civil servants have been working behind the scenes for many months and the necessary Statutory Regulations are ready to roll where required. Otherwise we are back where we were before in regard to divorce law jurisdiction. We are a contracting state to the Hague Conventions (along with all the other global countries who are signatories) and we will continue to be covered by these once we are out of Europe. Importantly, it is the Hague Convention which ensures the swift return of children who are wrongfully abducted and this facility will continue uninterrupted.

Divorce law reform
Another hot topic is divorce law reform. There has been a lot of press coverage last year about the case of Mrs Owens whose petition on the basis of her husband’s ‘unreasonable behaviour’ was rejected (reluctantly on a technicality) by the Supreme Court, whilst at the same time the Court emphasised sympathy for the applicant and the need for a change in the law.

Currently, to prove that a marriage has irretrievably broken down, a spouse has to rely on one of five ‘facts’ including separation for two years (if you agree) or five years if there is no agreement. Alternatively, either ‘unreasonable behaviour’ or ‘adultery’ can be relied upon if either party want what is termed a ‘quickie’ divorce. This means that at the very start of relationship breakdown, things often ‘kick off’ with acrimony as blame is found in order to draft the Petition. To most family lawyers this situation is counter intuitive.

The Government is finally acting and has launched a consultation on ‘no fault’ divorce law reform. In the meantime, and on a practical level, it is now possible to issue online divorce applications as part and parcel of the drive to bring Court technology into the 21st century. A word of warning, however. An online application for divorce is just the process or paperwork required for dissolving the marriage. This does not deal with the sharing of the finances which is a separate exercise.
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Family Judges have discretion to ensure that income and capital needs are met following a divorce and there is a fair division. This does not necessarily mean an equal split. This is why it is essential to take some legal advice as to what an appropriate financial settlement should look like. That is the position, in a nutshell, where there is a marriage or a Civil Partnership. Unfortunately, the position is different where there is a breakdown in a cohabiting relationship which we address below.

The Family Courts continue to be increasingly strangled for cash and resources in the attempt to modernise and streamline and Judges are bogged down with the time they need to deal with people who are unable to afford legal representation resulting from the withdrawal of Legal Aid for most family cases.

We always consider the alternatives to the Court process, including mediation and collaboration. In addition, there is a sort of ‘private’ track developing with the use of private court hearings and arbitration. This means that divorcing parties have privacy, choice of Judge or Arbitrator, timing and venue. These alternative options, in our view, are often a better way.
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The new family – cohabiting couples
The fastest growing type of family group in the UK is heterosexual cohabiting (i.e. unmarried) couples, with or without children. Such groups are largely outside the financial protection offered by family law which focusses almost entirely on married couples or couples who have entered into a civil partnership.

For instance, a woman could live with her partner in his house for 25 years, leave her job to bear him children, care for them, care for him and run the home, then he could ask her to leave his house and she would not be entitled to ask for any financial assistance from him. If the children have grown up, then she is not entitled to ask for help from him for their housing or other needs as their carer.

If her name is not on the deeds of the house and they never reached an agreement that she would have a share in the property or she never acted to her detriment in reliance upon what she believed to be such an agreement, then she cannot make a claim against him either for a share in the equity of the home, which she could use to buy her own separate property.

Is this a huge injustice that requires amendment to the law to allow such claimants the right to seek a share of their former partner’s wealth? Or should we allow people the right to ‘opt out’ of the legal framework of marriage or quasi marriage and allow them autonomy to make their own arrangements, without fear that the law will suddenly come into their relationship and permit the redistribution of their wealth? Opinion is divided, and in the meantime, expert legal advice is key.
Judith Fitton
is a partner in the family team at Mundays LLP and has 25 years of experience in the field of high net worth divorces. She was named by the Legal 500 Directory in 2018 as a leading individual in this area. Judith has a niche practice in cohabitee matters and disputes between non-married couples regarding their property interests and their children. She is accredited by Resolution (a national organisation of family lawyers) as a specialist in the fields of cohabitee disputes and complex financial remedies. Judith is known for her pragmatic and constructive advice.

Judith Fitton, partner, can be contacted on +44 (0)1932 590557 or at
Sarah Duckworth
is a partner in the Mundays’ family department. Sarah has specialised in family law for more than 20 years. She was noted by the Legal 500 Directory for recommending the best approach to take at all times while being kind and considerate during stressful times. She is an accredited specialist with Resolution, which is a national organisation of over 6,500 family lawyers and other professionals committed to promoting an approach to family law which is sensitive, constructive, and cost effective. Sarah is an expert in all areas of family law and has particular experience in dealing with complex and high value financial cases.

Sarah Duckworth, partner, can be contacted on +44 (0)1932 590567 or at
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Mundays LLP
Cedar House, 78 Portsmouth Road, Cobham KT11 1AN
Telephone: 01932 590500

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.