Family Law in 2024
As we come to the end of another year, our lawyers reflect on some of the changes (or lack of!) in family law in 2024, and the impact on people going through family law issues.
Julian Hawkhead, Senior Partner
Can it really be a year since I last wrote an introduction to the Stowe Family Law end of year blog? In many respects, time has flown by so quickly, but sadly, as my colleagues discuss in the following articles, where the need for reform in key areas of family law is concerned, progress is not as fast.
Firstly a few words about Stowe Family Law. It has been quite a year for the firm as we continue increase our capability to support more people as they require family law services increasing the number of specialist lawyers across more locations nationwide. Throughout 2024 we opened more offices taking our total number of locations to 94 and we now have 205 specialist family lawyers. We also said goodbye to Livingbridge as our former partners with whom we have achieved so much over the last 7 years and we welcomed our new partners Investcorp to support us through the next exciting chapter. We have some really exciting plans so watch this space!
With a new Labour Government in place, now is the time to prioritise a legal system that is there to protect the vulnerable and is readily accessible to those in need. It is an essential foundation for a stable and safe society.
In other areas of the family law world, we have seen an increased impetus to keep couples out of the court system and encourage them to adopt alternative routes to reaching a resolution whether that is mediation or other forms of dispute resolution. The rules that have been introduced feel more stick (through costs sanctions) than carrot but there is no doubt that a resolution reached consensually is longer lasting and less damaging to all parties.
The need for rights for couples living together without a legal marriage or civil partnership continues to be an area of focus for family law professionals, although there seems to be diminishing hope that the Government will prioritise reform here. A clear legal framework is necessary to define what happens when cohabiting relationships end is much needed.
I hope you enjoy reading these short articles written by my colleagues and may I take this opportunity to wish you a very happy Christmas season and a healthy and prosperous 2025.
Tamara Adams on development in fertility law
This year has not seen as much progress in fertility law as we, as family law professionals, would have hoped. However, some steps have been taken with the amendment to the Human Fertilisation and Embryology Act 1990. Previously female same-sex couples had to undergo screening for infectious diseases such as hepatitis B, C and rubella which could cost up to £1000 and was prohibitive for many. As of November this year, the screening requirements for same-sex couples are on par with those for heterosexual couples as these requirements have been relaxed. In addition, same-sex couples where one or both partners have an undetectable viral load for HIV will be allowed to pursue IVF treatment.
The ONS reported that women had an average of 1.44 children between 2022-23, the lowest recorded birth rates. Several reasons have been touted for this drop, including the impact of Covid-19, and social changes with women delaying having children to pursue a career. In this context, there is a need for change in fertility laws to make various methods of alternative journeys to parenthood more accessible and the legal process frictionless.
Unfortunately, we are still awaiting key changes in surrogacy laws which many family law professionals hope to see. The complexities of legal parenthood being assigned to the birth mother, rather than the intended parents, followed by a lengthy process of transferring parenthood, is complicated, costly and stressful, and can be a deterrent. Recently, Baroness Meron met with the Law Commission to discuss the recommendations made in the Commission’s report which was released in March 2023. It is hoped that the Government will release a response soon, putting surrogacy on the agenda.
I hope to see more change in 2025, particularly in surrogacy, to protect intended parents and make their journey to parenthood a joyful one.
Ciara Pugh on the need for cohabitation rights
Taking the media by storm this year was the fall in marriage rates, as reported by ONS, with rates falling to 49.4%, the first time they have dropped below 50%. Although same-sex marriages increased, and there were an estimated 167,000 people in same-sex marriages in 2022, overall marriage seems to be being replaced by couples choosing to live together as cohabitees.
The fall in marriage rates reflects a changing society, and the need for the law to maintain pace with shifting priorities and family structures. There are a variety of reasons that could be attributed to the decline. For example, these ONS figures are from 2022, where the impact of the Covid pandemic was still being felt on the wedding industry. Nevertheless, the way we view marriage and relationships is constantly changing, and couples are either delaying or rejecting marriage entirely.
What this does mean is more people are choosing to live together as cohabitees rather than getting married. Although cohabitation is the fastest growing family type in the UK, as it stands there is little to no financial protection for cohabitees should the couple break up or one party die without leaving a Will. This is the case regardless of length of time living together, or if the couple shares children (though there are some financial claims that can be brought for the benefit of children).
Family lawyers have been campaigning for cohabitation reform for years. In October 2023, a glimmer of hope appeared in the form of Labour MP Emily Thornberry’s promise to make cohabitation a priority should the Labour Party take hold of Government. Disappointingly, such a reform has failed to land on the Government’s agenda as yet, leaving many individuals vulnerable should their relationship end.
However, the fall in marriage rates has renewed calls for cohabitation reform. I hope that in the not-too-distant future, there will be financial protection for cohabitees. This could be in the form of an opt-in or opt-out system where couples choose whether they wish to have rights. These are unlikely to be the same as those afforded to married couples, but financial protection is needed to protect vulnerable individuals. Our new Labour Government is confronted with an exciting opportunity to finally reform this highly problematic area of family law and let’s hope we see some change!
Rachael Lodge on the drive to avoid court
The Family Justice System has been working hard over the past few years to reduce acrimony in divorce and family proceedings, and to ensure families going through relationship breakdowns have the best chance at setting themselves up for a more positive future. This is all within the context of a struggling court system which is underfunded and over-stretched.
As such, one of the most significant changes in 2024 was an update to the Family Procedure Rules. These are a set of rules followed by courts nationwide which govern practice and standardise court procedures. In April of this year, the rules were updated to place a greater focus on reaching amicable agreements, using non-court dispute resolutions (NCDR) such as mediation, collaborative family law and arbitration.
The main changes are a wider definition of what NCDR means, broadening the scope beyond just mediation, and including methods such as arbitration, collaborative divorce and private financial dispute resolution hearings.
Divorcing couples will now need to actively engage in NCDR, or provide a valid reason why this is not possible by laying out their views in open correspondence. Parties now have to express why NCDR is inappropriate in their case using the new FM5 form (for example, due to safeguarding concerns), where before this was simply a tick box exercise. The exemptions for not taking part in NCDR are more limited, and failure to engage may result in cost sanctions. We have already seen this acted on by Judges in several cases in the latter half of the year.
Although courts could previously adjourn proceedings where Judges felt NCDR would be appropriate, they can now do this without the agreement of the parties.
The hope is that moving forward, parties family law issues will be able to find constructive ways to resolve differences instead of using the courts. This will not only give the family courts more breathing room but will mean families can build a better post-separation future. The Ministry of Justice is undertaking a wider push to support families by ensuring they are aware of all the options available to them and supported throughout.
Emily Davies on the Pathfinder Pilot
The Pathfinder Pilot was initially introduced in March 2022, launched in a small number of family courts, to trial improved information sharing between services like local authorities with the courts. The pilot was a response to a review into the Family Justice System that highlighted how the adversarial nature of family courts and the system itself worsened conflict and further traumatised domestic abuse victims and children. Almost three years later, now is a great opportunity to reflect on the change and development in the pilot itself, and the impact it has had on families.
The pilot model requires detailed investigations to be conducted by Cafcass – the independent body advising family courts what is safe for, and in the best interests of, the children. Cafcass will prepare a Child Impact report, where they have an opportunity to hear from the child/children before the first hearing to better understand their worries, wishes and feelings, and to evaluate the potential impact of the ongoing family law proceedings, on the child/children involved. Cafcass also investigates any welfare issues, allegations of domestic abuse, and identifies whether non-court dispute resolution would be appropriate. The pilot aims to ensure that children of separating parents are listened to throughout the process, and are given more opportunities to express themselves, as well as improve the experience of survivors of domestic abuse.
Furthermore, the Pathfinder scheme is working to minimise the trauma domestic abuse victims (and their children) experience going through the justice system when separating from their abusive partner. The improved information sharing through the holistic multi-agency approach and early onset information gathering, means victims do not have to be re-traumatised by telling their story multiple times.
February 2024 saw the end of the initial phase of the pilot, and it was then rolled out to two further locations, Birmingham, and South-East Wales, ahead of a planned national rollout. Although the national rollout has yet to be confirmed, the progress made by the initial phases of the pilot have been positive. The change in process is being carefully monitored by legal professionals, as well as policymakers and Cafcass.
At present, it is apparent that a national rollout is not yet on the cards. However, I hope a review into the pilot will be produced in 2025, looking ahead to a nationwide implementation as the family justice system moves towards less adversarial, non-court-based approaches.
Read more about the Pathfinder Pilot.
Jake Mitchell on AI and Family Law
Technology is evolving, and in 2024 we have felt its impact in the legal world. Some of the fastest moving tech is the use of Artificial Intelligent (AI) and its usage in family law.
AI is not robots, but computer simulation. In law, language models like ChatGPT have an enormous amount of data, phrases and sentences plugged in to predict “what comes next?” in a sentence, forming complex answers. AI can answer questions, but you should take care it is not always accurate. You may have noticed Google’s new AI Overview, which takes a question you’ve searched, and pulls information from various top performing sites to give you a quick answer without needing to click on a particular website. This is helpful to an extent but should not be taken as ‘gospel’ as if the source AI takes from is wrong, so is the answer.
In family law, AI can be used to make our processes more efficient, saving the lawyer time and saving client money. AI can answer questions outside of office hours, check your documentation for spelling/grammar errors, summarise documents and even take a first-draft note of meetings. It can summarise long documents and organise your thoughts and papers. AI can also help with legal research, but beware, in the US there have been instances of AI entirely inventing cases.
This is likely only the beginning of some more impressive changes. However, as the technology grows we need to be ever more mindful of the pitfalls. Errors are common, answers not always correct, and oversight of activity is very important. AI won’t replace everything your lawyer can do, and family law involves supporting people going through deeply personal, emotional issues, where empathy and understanding is required. AI cannot replace this, but it can be part of the team.
Sarah Scriven on Domestic Abuse Protection Notice Pilot
On 27th November 2024, domestic abuse protection notices (DAPN) and domestic abuse protection orders (DAPO) were introduced by way of a pilot scheme, expected to last one year. It is hoped that these measures will provide better protection to victims of domestic abuse.
The pilot is taking place in certain areas: London boroughs of Croydon, Sutton and Bromley and Greater Manchester. The perpetrator must live in one of these areas. The British Transport Police are also able to apply for DAPOs.
A Domestic Abuse Protection Notice (DAPN) is issued by police to a perpetrator to provide immediate protection for victims of all forms of domestic abuse, even where there is not enough evidence for a criminal charge. The perpetrator and victim must be personally connected. The police must consider that there are reasonable grounds to believe that a person has been abusive to the other person. The DAPN contains specific instructions to the perpetrator, for example not to attend the victim’s home. If the instructions aren’t followed, the perpetrator could be arrested. If the police issue a DAPN, they will also apply for a DAPO.
A DAPO can also be made by the court to protect victims from all forms of domestic abuse. This order may be made by the court during ongoing criminal family or civil proceedings. Applications may be made by the police, a victim or by someone not directly involved known as a third party, for example a friend, family member or social workers. Breaching a DAPO is a criminal offence.
Prior to the pilot, the police could issue domestic violence protection orders, but these only last for 48 hours. A victim could make an application to the family court for a non-molestation and/or occupation order and in the criminal court, a restraining order could be made.
The introduction of the DAPN and DAPO give victims, but also organisations such as the police and social workers and third parties such as a friend and family an avenue to use to seek protection and it will no longer be down to the victim to make the relevant application themselves.
A DAPO has no maximum duration, and the court will consider how long it needs to last to protect the victim. A non-molestation will usually last for between 6 to 12 months but can last longer in exceptional circumstances.
If the pilot is successful, DAPNs and DAPOs are expected to replace domestic violence protection orders. It is hoped they will give police a tool that is more effective and provides longer term protection to victims.
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Final Word
I hope you have found this wide array of topics interesting and should you want to find out more about any of the topics we have covered here or any other family law issues please do not hesitate to get in touch.
With best wishes for the festive season,
Julian Hawkhead More
