2022 in review – reflections on the past year in family law

Managing Partner Julian Hawkhead finishes the year with a look back at the significant developments for UK family law over the past twelve months, and reflects on another successful year for Stowe. 

As another year draws to a close, I have paused in the frantic closing off of the calendar year to reflect on events in the life of Stowe and the wider family law world over the past twelve months.

Whilst 2022 brought a renewed sense of hope, no one could have predicted the new challenges that we would face. It’s hard to believe that we started the year working remotely still and talking about the Omicron variant and booster vaccinations.

During the course of the year we have tentatively returned to some “old” ways of life, returning to offices in greater numbers and greater frequency. Collectively it has felt like the ingredient we missed so much in lockdown; the ability to share and propagate ideas in person with colleagues. It has been great to come into the office and listen to lawyers bouncing ideas off each other, essential not only for problem solving but also sharing experiences and knowledge.

A year of change at Stowe

2022 has been a seismic year for Stowe Family Law. We opened 17 new office locations, recruited 68 new colleagues, and completed our first acquisition of another family law firm. As a result, the firm is one third bigger in scale than at this point last year. With this growth our lawyers have been able to help even more families handle the emotional and legal consequences of family breakdown as they are faced with the combined fallout of the pandemic and the cost-of-living crisis.

The introduction of no-fault divorce

The past year has also been a landmark one for family law with the introduction of no-fault divorce back in April. This was the culmination of many years of campaigning, and rightly seen as a triumph for those who have advocated for a blame free divorce process and the modernisation of antiquated divorce laws.

Here at Stowe, we saw our first no-fault divorce client reach the end of their divorce process with a final divorce order granted in November. There’s no doubt we will see many more clients reach the end of the new process in the coming weeks.

As a lawyer it has been a relief not to have to have to discuss with clients the causes of their marriage breakdown at great length knowing that one of the primary purposes was to work out how to draft a divorce petition with sufficient points of blame. The ability to focus on client issues that needed to be resolved, whether they relate to their children or their finances, without the additional “noise” of divorce blaming is a benefit for both client and lawyer.

The call for cohabitation reform

Unfortunately, similar success has not been achieved by campaigners for the introduction of laws to protect cohabiting couples. Cohabitation is the fastest growing family type in England and Wales. In 2021 there were around 3.6 million cohabiting couples in the UK compared with 1.5 million in 1996. Yet the myth of common law marriage persists and unmarried couples who split up face navigating a minefield of complex legislation to resolve financial issues.

Family lawyers have been at the forefront of calling for change in this area for some time. In August the House of Commons’ Women and Equalities Commission produced a report into the rights of cohabiting partners. This called for the Government to reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation and to provide greater financial security for cohabiting couples upon the death of one partner.

The Government’s response was to reject the Commission’s recommendation, indicating that it considers existing work underway on the law of marriage and divorce must conclude before considering any change to the law of cohabitants on relationship breakdown. In particular, the Government has said it must focus on its commitment to conduct a review of the law of financial provision on divorce: It cannot fully reconsider the law relating to relationship breakdown of cohabitants before the review on financial provision for divorce has reached its conclusions and made its recommendations.

In addition, the Government is considering the case for comprehensive reform to marriage law and considers that the law relating to the relationship breakdown of cohabiting couples could also not be considered outside the context of any wider reform to the law of marriage.

So, it appears that there is no likelihood of reform to the law of cohabitation anytime soon, and we will continue to advise unmarried couples in the context of an unsatisfactory patchwork of legislation which very often leads to inequitable outcomes and financial hardship.

For me this failure to establish any measures to protect financially vulnerable people coming out of cohabiting relationships is sadly a short-sighted decision of the government. To prioritise reform to financial remedies cases for divorcing couples in circumstances where there is already a framework, albeit some might consider an imperfect framework, above a need to provide financial protection to cohabiting couples where in a large number of cases there is currently none suggests to me that the government is making moral judgements on couples depending on whether they choose to “formalise” their relationship or not.

In any event it leaves a large number of vulnerable people even more reliant on state funded financial support. We can only hope that parliament is able to solve this problem faster than it was able to bring about reform to no fault divorce.

Delayed surrogacy bill

Surrogacy is another area in which we had hoped to see significant progress towards reform this year. The law in this area has remained largely the same for 30 years and has not kept pace with scientific and societal developments. The Law Commission are in the process of preparing a draft bill which was due to be published in the autumn, but the Bill will now be delayed until spring 2023. Proposals for reform which are likely to be contained within the draft Bill include:

• The creation of a new pathway to parenthood which will mean that the intended parents will be the legal parents from birth of a child born of the surrogacy arrangement, subject to the surrogate’s right to object for a defined period from birth. There would be no need for the intended parents to apply for a parental order.
• There would safeguards or eligibility requirements along the pathway which would only apply to domestic surrogacy arrangements.
• The removal of the current requirement that at least one of the intended parents must have a genetic link with the child.
• The creation of a register to allow for those born of surrogacy arrangements to access information about their origins.

The proposals are welcomed by practitioners but there is concern at the delay in the publication of the draft bill. Nevertheless, the Law Commission has shown commitment to ensuring that our surrogacy laws are effective and up-to-date, and optimism remains that we will see the introduction of wholesale reform of the surrogacy process in due course.

Domestic Abuse Act

Whilst the Domestic Abuse Act received Royal Assent in April 2021, many of its key provisions only came into effect within the last 12 months, and some are still awaited. The Act was hailed by the government as a landmark bill which would transform the response to domestic abuse, helping to prevent offending, protect victims and ensure that they have the support they need. However, many of the organisations who campaigned for the new law have identified significant gaps and omissions within the Act, and it is seen by some as a missed opportunity. For example, the law fails to deliver equal protection and support for migrant women and campaigners continue to seek amendments to abolish the no recourse to public funds omission and ensure that migrant women can apply for indefinite leave to remain independently from their perpetrator.

There is also concern that the Act fails to address aspect of the Universal Credit system that facilitates and exacerbates abuse and that whilst there is now a statutory duty on local authorities to provide domestic abuse refuges, there is no similar provision for community-based services which has lead to concern that safe accommodation will be funded at the expense of services within the community, which are vitally important for many victims.

In addition, perhaps inevitably, it is clear that without adequate resources from government to fund the measures implemented, the effectiveness of the Act will be limited.  Thus, while the Act has potential to improve the support provided to some victims of domestic abuse and have meaningful impact upon prevention, it is not a panacea.

As we reach the end of 2022, the weight of cost of living increases, rising interest rates and a general economic maelstrom will, I am sure, be heavy on many readers minds and I hope you are able to stay safe and healthy as we hope for better times to come in 2023.