Family law is always changing. Political and societal shifts drive legislative changes – and these shifts can happen rapidly, as we have seen in recent times. So as we enter a new decade, I have paused to reflect on some of the big family law developments of the last ten years, and consider the legal changes likely to take place in this next decade too.
2010-2020: Changing family dynamics and the rise in mediation
Since 2010, we have seen the introduction of same-sex marriage. Conversely, heterosexual couples that choose not to marry may also now enter into civil partnerships to gain the same legal rights as married couples.
It is no longer taboo for same-sex couples to foster or adopt children as well as having children of their own. And we have seen an increase in transgender individuals and couples choosing to have children. While some of these families still struggle to gain acceptance among the wider public, the children raised within them are growing up in a structure that is entirely normal to them. They are part of a new generation who are already more liberal and accepting of all kinds of family dynamics than previous generations.
There has also been a big rise in couples resolving family disputes out of court, with more emphasis on mediation and arbitration. Sadly, the court system is buckling under the strain of funding cuts, which has led to lawyers and divorcing couples exploring quicker and more cost effective routes to resolution.
2020 onwards: what next for family law?
What might the next ten years hold? It would be a brave person who gazed into a crystal ball to predict where we might be in 2030. But these are some of the main developments I believe we are likely to see:
- A major divorce law reform is likely in the next few months. This will enable couples to divorce on “no-fault” basis without having to wait for the current two years of separation. Children will benefit too, as the potential for parental arguments is reduced.
- A landmark judgement in 2010 saw the Supreme Court approve the use of nuptial agreements by married couples to plan financially in the event of a divorce. Pre-nuptial agreements have surged in popularity since then but are not yet binding on a court. I foresee legislation being passed, which would allow such agreements to become binding in circumstances where it is still be fair to hold both parties to the terms.
- I also think a reform of these laws are likely. At present, non-married cohabiting couples do not have any additional legal rights, during their relationship or after separation. Courts are powerless to make financial awards based on fairness, often leading to financial hardship for individuals after a lifetime with their ex partner. As cohabitation remains the fastest-growing type of relationship in the UK, there will continue to be voices for legal reform in this area, which is long overdue.
- Finally, there needs to be continuing support for families (including separated families) enabling children to grow up without suffering harm as a result of exposure to conflict or abuse. The law is continually developing in this area. But while judges and other professionals are sensitive to situations where children are being exposed to harm, more can still be done to ensure children’s welfare comes first.
This article by partner Wayne Lynn was first published in The Journal (January 2020).