ENGLAND is a typically moderate country, a characteristic which is probably much to do with its equally moderate climate. We aren’t an inflamed and over-passionate society swinging wildly from left to right in politics as happens in many Mediterranean nations.
We aren’t an especially religious society any more. And just as our society tends to stick to the middle ground in politics and culture, we tend to do the same in law.
Our legal system reflects the fact that we are, on the whole, a tolerant and diverse society. And for the most part, it works. It might take time to catch up with social changes, as with gay marriage, but eventually it does.
True, some improvements to family law could be made. ‘No fault’ divorce, for example, might be more sensible and easier than the current system which requires specific reasons for an immediate divorce rather than a minimum two year wait, but I would not describe this arrangement as something in need of urgent attention.
Other areas also get a bad rap – despite occasional alarmist headlines, 95 per cent of cases involving children do resolve without a problem.
Financial settlements following divorce also reflect that we value what is fair and reasonable for both parties. Judges have plenty of discretion to do what is right for each couple. The calculation isn’t done by ‘knife and fork’ mechanical methods as it is elsewhere.
We recognise that marriage has financial consequences for both parties, but that there are also limits in the financial support which one partner can reasonably be expected to provide the other – as, for example, in the case of Tracey Wright.
The courts ruled that the substantial amount of maintenance paid by her racehorse surgeon ex-husband (more than £30,000 per year) should cease on his retirement and that she must make greater efforts to find work.
We value fair play in family law and woe betide those who don’t play by the rules.
We saw this principle made crystal clear in October when the Supreme Court ruled unanimously in favour of Alison Sharland and Varsha Gohil, two women who claimed their former husbands had not been honest about their finances during the divorce process.
I’d change none of it, But there are still two huge elephants in the room.
The first is the almost complete abolition of legal aid. If the country’s justice system has ever cried out in pain at what has been done to it, it is right now.
Access to justice is a fundamental right in any democratic society and our legal aid system used to be the envy of the world. When I started in practice most people qualified for some kind of assistance – except of course for the very wealthy - and it was taken for granted that everyone could go to court to put right a wrong.
Legal aid though was never a blank cheque: financial contributions were required both during and after the case, with time to pay and interest accruing. Then, on April Fools Day 2013 (how apt), most of it was suddenly swept away.
‘Avoid court!’ cried the Government, ‘try mediation instead!’ The only trouble is it hasn’t worked. The take-up of mediation amongst divorcing couples remains disappointingly low.
The decimation of legal aid has left people with no choice but to try representing themselves in court as ‘litigants in person’, perhaps with the aid of a book or a website, and many are failing miserably, losing cases that could be won with a little legal expertise. Sometimes such cases are very serious: witness the case of Karissa Cox and Richard Carter, whose child was wrongly adopted when they were denied legal aid.
Some think these swingeing cuts were well deserved and the government is furiously spinning the issue. Who cares about access to justice after all? It’s not a priority, until you find yourself in court. But take it from those of us who spend each day on the coal face of the British justice system: this is a real and terrible problem across the board.
I make frequent business trips to London, to visit our office close to Chancery Lane. Whenever I take a morning run past the very grand Ministry of Justice buildings, I cannot help but think ‘what an ironic name’ when once it wouldn’t have troubled me. It does now.
The second area in need of law reform is cohabitation law. For decades the percentage of those who live together has increased relentlessly, and according to the most recent statistics available, they are now the fastest growing family type in the UK. No fewer than 3.2 million couples live together – a very significant chunk of the population.
But what happens when such couples split up, many with children? All too often one partner may be left destitute, with no income, pension or home. Why should the State take over?
You may argue that not marrying avoids legal commitment but I disagree.
We should consider the economic impact of changes in society as it now is, and legislate for it.
I do not equate marriage with co-habitation, but some form of economic redress at the end of a qualifying relationship recognises the contributions of both parties and avoids further impact on the State.
The Scots think so and introduced the Family Law (Scotland) 2006, providing a limited range of protections for co-habitants north of the border. The Government here sadly fudged it, despite the Supreme Court adding its own powerful voice to calls for reform.
It is high time for them to think again and with these measures restore access to justice for us all.
Marilyn Stowe is Senior Partner of Harrogate-based Stowe Family Law.