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  1. Law
July 9, 2024

English family law is failing to keep up with changes in society

By Rory Sachs

From the advent of no-fault divorce to the growing popularity of prenups, the family law landscape has seen major change in recent years. Yet the statute books are not keeping pace with the realities of modern family life in all respects.

[See also: Why prenups are finally becoming more popular in the UK]

In 2021, the proportion of people aged 16 or over in England and Wales who were married dipped below 50 per cent for the first time, according to the Office for National Statistics. People who live together in long-term relationships but are not married make up a growing share of the population. Yet at a national level, the UK lacks formal protections in legislation for these ‘cohabiting couples’.

Question of cohabitation

This creates problems for some wealthy clients, says Vardags partner Robert Hines. ‘It’s an area that many family lawyers feel passionate about, because there is just an inherent unfairness in the law at the moment.’

Hines adds that he has seen instances of unmarried couples where both partners have had successful professional careers – and then one has left it behind for family commitments. ‘If they were to separate, the financially vulnerable party would be in a very difficult position. You have people who have been in a 20- or 30-year relationship and are left with nothing at the end of it.’

[See also: Spear’s Family Law Survey 2024: Leading lawyers reveal the trends shaping the industry]

The UK lags behind other jurisdictions in providing protections to parties in an unmarried couple choosing cohabitation. In Australia, federal legislation was passed in 2008 giving former de facto partners the same legal rights as married couples. Closer to home, the Family Law (Scotland) Act 2006 provides certain rights for cohabitants over their finances and shared belongings.

Last October then shadow attorney general Emily Thornberry announced that a Labour government would introduce reforms – something which Jo Edwards, chair of Resolution’s Family Law Reform Group, called a ‘hugely welcome development’. But the details remain unclear.

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[See also: Best family lawyers for high-net-worth clients in 2024]

A Labour government could take ‘years’ to flesh out its policy on cohabitation, says Mark Harper of Hughes Fowler Carruthers. But he recommends the party doesn’t overthink it. ‘A lot of people are rightly rude about Theresa May, but she did have the courage to say, “We are going to introduce no-fault divorce. I’m not going to have a Law Commission report on this, we’re just going to draft the legislation.” We need a new Labour government to have the confidence to just do it.’

Surrogacy: birth of a new era

When it comes to children law matters for HNWs, the specificity and complexity of cases increasingly demand a specialist lawyer, according to Katharine Landells, a partner at Withers. For one thing, she says, independent schools are ‘more readily reporting issues to social services than they may have done in the past’ and are ‘more likely to have a head of pastoral care… who is the head of wellbeing of pupils, rather than it being a housemaster’.

On top of this, there’s also ‘much more social pressure on dads to step up to the plate and do [a] 50-50 job’, increasing the number of UHNW fathers who are pushing for equitable custody arrangements.

[See also: How increased transparency in the courts is changing family law]

Sarah Williams, who heads up Payne Hicks Beach’s modern family law department, agrees that wealthy clients increasingly want and expect their cases to be managed by specialists, rather than by experienced generalists. One area in which this may be particularly relevant is in cases related to surrogacy.

A growing number of UK-based couples and HNWs are travelling around the world to destinations such as California and Thailand to set up surrogacy agreements and find fertility treatments. University of Kent researchers report that the number of babies going through surrogacy in England and Wales almost quadrupled between 2011 and 2020.

As a result, says Harper, many family lawyers are having to ‘address issues that didn’t exist 10 or 20 years ago’. These issues can be further complicated by the ‘slow and cumbersome’ nature of legal reform: ‘It’s always a battle to try to get the law to evolve, to adapt to changes in society, and also biomedical technology.’

This feature was first published in Spear’s Magazine Issue 92. Click here to subscribe

Spear's Issue 92 cover
Spear’s Issue 92 / Illustration: Diego Abreu

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