No-fault divorce and greater legal rights for cohabiting couples are urgently needed in England and Wales, says family law expert
Photograph: David Sillitoe for the Guardian
Less well-off couples trying to separate through divorce proceedings are facing a “perfect storm” of court closures, legal aid cuts and bureaucratic breakdown, says Nigel Shepherd, the newly appointed head of the family law organisation Resolution, a 6,500-strong association which represents solicitors, barristers and other professionals involved in family law.
Shepherd, 60, who has taken up the post for the second time in his career, has already written to the new justice secretary, Liz Truss, pressing her department to carry out a review of the impact of the withdrawal of legal aid in most family cases.
Unless individuals can demonstrate they are victims of domestic violence, courtroom representation is no longer available under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Advice “deserts”, areas where there are few agencies or solicitors able to give help, have begun to emerge. For poorer individuals who cannot afford a solicitor, the withdrawal of legal aid for family courts has caused a surge in litigants in person, whose claims, if pursued, take far longer to resolve, according to Shepherd. As many as 80% of all family law cases may now involve one party who is unrepresented.
“London has a real problem if you want a high court hearing [for divorce cases],” Shepherd says. “You may have to wait nine months to a year.” This means that custody battles are more protracted. Online divorce, being developed by the judiciary, is not yet available.
Local authority funding cuts have also made it harder to obtain reports from social workers, Shepherd says, pointing to the warning last month by Sir James Munby, who heads the family division, that family courts are facing a “clear and imminent crisis” because of the increase in childcare cases.
The Ministry of Justice’s austerity programme of court closures has placed further strains on access to justice. “There’s pressure from court closures; 86 in the latest slice. It means people have to travel a lot further – difficult for those who use public transport,” says Shepherd. Clients from parts of rural Cambridgeshire, who have to travel to Peterborough family court, for example, already have a two-hour journey each way involving several buses and a train, according to Resolution.
And the administration of family cases is also feeling the strain. Regional legal centres such as Bury St Edmunds, which is supposed to coordinate family cases across the south-east, are difficult to reach by phone, according to Shepherd. “One of my friends spent six hours trying to get through. It’s very frustrating. Service in the south is poor.”
Shepherd, who has worked as a family solicitor since 1981 and first chaired Resolution in the early 1990s, believes two changes would greatly improve outcomes for poorer households going through family breakdown: no-fault divorce and greater legal rights for cohabiting couples.
“Our key campaign is no-fault divorce,” he says.
There are around 110,000 divorces a year in England and Wales. No-fault divorce might reduce pressure on the courts, says Shepherd, since a lot of his work involves stripping away misconceptions divorcing couples hold, such as the belief that they are entitled to a larger share of assets if they can prove their partner was to blame for the breakdown.If separating partners realised they did not need to allocate blame, he believes, the process could be simplified. Although regulations allowing couples to dissolve unsuccessful marriages by mutual agreement without blame were included in the 1996 Family Law Act, they never came fully into force. In the face of a hostile Daily Mail campaign warning that they would undermine family life, Tony Blair’s Labour government decided not to proceed with changes that would have allowed couples to part after 12 months without having to apportion culpability. The powers were finally repealed by the 2014 Children and Families Act.
But as far as Shepherd is concerned, no-fault divorce is back on the political agenda. In September, the House of Commons Library produced a detailed briefing paper on the arguments surrounding the initiative and last year, Richard Bacon, the Conservative MP for South Norfolk, introduced a private member’s bill on no fault divorce.“None of the evidence suggests that when you change the law you get more divorces – other than a temporary blip when it’s first introduced.” Many countries allow no-fault divorce, including Spain and Scotland. But in England and Wales, unreasonable behaviour and adultery still account for more than two thirds of all divorces, as these are the main legal grounds that allow people to part straight away without waiting two years to get a mutually agreed divorce.
Shepherd believes no-fault divorces should be available after six months by mutual agreement. “There would have to be six months of separation,” Shepherd said. “We don’t want people to be able to wake up and get divorced. We are not anti-marriage, but we are anti-unnecessary conflict.
“At the moment it’s a blame game. [Lawyers] get together to talk about what we are going to put in the divorce petition. I would like to get rid of unreasonable behaviour, adultery and desertion. All other government policy is about trying to take the heat out of the situation.” Resolution’s other main campaign is extending legal rights to cohabiting couples, of which there are now 3.3 million in the UK, more than double the number 20 years ago. A couple can live together for 30 years, bringing up children, but if they are not married there is nothing to protect against hardship if the relationship collapses and only one of the couple, usually the man, owns the house and assets.
“We think [partners] ought to be able to claim [support and assets] after two years of cohabitation, or earlier if they have children,” Shepherd says. “Forty-seven per cent of the population [mistakenly] still believes there’s such a thing as ‘common law marriage’ [to give them rights].
“For some people it’s a complete disaster. It’s particularly hard on women who have given up their career to raise children,” he argues. “Scotland protects cohabitees legally. At the last count in 2013, 57% of MPs believe the law needs to be reformed.” Resolution is convening a debate tomorrow on how to improve cohabitation rights and a meeting in parliament at the end of the month.
Brexit is for many a traumatic divorce from the idea of the European Union. According to Shepherd, it is also fuelling marital breakdown. “We have come across a number of families in this country [who are splitting up] because one of them voted differently in the referendum,” he says.
“I suspect it was unlikely to have been the sole reason [for divorce], but we have heard of cases from a number of our members. It was a really divisive campaign. It pushed some couples [over the edge]. It was the last straw that made them think ‘we are really incompatible’.” Brexit is proving a challenge to the lawyers, too. “We prepare quite a lot of prenuptial agreements under the European system but we can’t say now where we would like issues determined,” Shepherd says. “We don’t know what marriage regulations will exist.”
In the end, much of the acrimony over divorce could be alleviated with greater clarity over financial settlements. Publishing some rough financial guidelines on the amounts of maintenance to be expected might help, he suggests.
“The problem is that the case law is up in the air; judges in southern England are more generous than those in the north when making maintenance awards. We [in London] are a generous jurisdiction for people seeking money. We are still the divorce capital of the world. There’s a battle between high court judges, so one judge may be at one end of the spectrum and one at the other. You can’t say either.”
Curriculum vitae
Age 60.
Lives Cheshire.
Family Married with two daughters.
Education Brentwood school, Brentwood, Essex; Manchester Polytechnic (as it then was), BA, law with German.
Career 2016-present: national head of family law, Mills & Reeve; 2016-18: chair, Resolution; 2008-present: family law specialist, Mills & Reeve; 2006-present: fellow of the International Academy of Family Lawyers (worldwide group of peer-elected family law specialists); 1981-2007: family law specialist in a number of firms; 1995-97 chair, Resolution; 1991: elected to national committee of Resolution and chair of what is now the association’s dispute resolution committee; late 1980s: chair, Resolution’s north-west regional group; 1981: qualified as a solicitor.
Interests Family; football; tennis; golf; music; Twitter