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President rues inaction on family law reforms

Action needed on cohabitants’ rights, divorce, ancillary relief, transparency and cross-examination

In a speech delivered at the Law School, University of Edinburgh, the President of the Family Division, Sir James Munby has criticized the failure to progress reform of specific areas of family law. He highlighted cohabitants' rights, no-fault divorce, financial relief after divorce, access to and reporting of family cases and the cross-examination in person by alleged perpetrators of domestic violence of their alleged victims.

On cohabitants' rights he said:

"The frequency of the occasions on which the problem has been considered by the House of Lords and, more recently, the Supreme Court over the best part of 50 years, has demonstrated that, whatever the degree of judicial ingenuity, neither the common law nor equity is capable of producing an effective remedy. Reform is desperately needed."

He added that such reform is "inevitable".

Sir James regretted that provisions in the Family Law Act 1996 reforming divorce law, have never been brought into force. He added that the outcome of the pending appeal to the Supreme Court in Owens v Owens was awaited "with eager anticipation".

A third area in which he said it was increasingly recognised that radical reform is not merely necessary but inevitable is that of ancillary (financial) relief following divorce. The President noted that views as to what form change should take are sharply divided.

He continued:

"[A] vital aspect of the ongoing transformation in the family justice system has to be reform of our still creaking rules about access to and reporting of family cases. Nothing short of radical reform will enable us to rid ourselves of the relentlessly repeated and inevitably damaging charge that we operate a system of private – some say secret –  justice. The task is massive, the complexity of the law is quite astonishing – itself a reproach to any reputable system of justice – and the differences of view as to what should be done run deep and in some respects seem almost unbridgeable. Statutory reform is essential."   

Finally, the President regretted that judges in family cases lack the power to prevent what statute has forbidden in criminal cases, the cross-examination in person by alleged perpetrators of domestic violence of their alleged victims. "Such cross-examination," he said, "lends itself to abuse, not least the abuse that the court has to stand by, effectively powerless, while the abuse continues in court and, indeed, as part of the court process." Sir James noted that the Prisons and Courts Bill 2017, which included clauses which would have remedied the problem, fell at the General Election, and Government remains unwilling or unable to say when it will be reintroduced."

For the President's speech, click here.