Family law/judiciary. Breaking up gets even harder to do

The Family Law Act had a fraught passage through Parliament but is now law. It is intended to support marriage and ensure that parties take all possible steps to prevent divorce.

If that is not possible then the aim is to conclude the arrangements with minimum distress to the parties and the children and to promote a good continuing relationship. But the incoming provisions make the path to divorce more difficult than under the existing law.

Not less than three months before a party files a Statement of Marital Breakdown with the Court, the party must attend an Information Meeting with a person who is appropriately qualified and has no financial or other interest in any marital proceedings between the parties.

Two weeks after the filing of the Statement of Marital Breakdown, the parties enter the Period for Reflection and Consideration. This nine-month and 14-day period is designed to allow the parties to consider whether the marriage can be saved and, if not, the Arrangements for the Future. It can be extended by a further six months.

The court then has to be satisfied that arrangements for the future have been made. They can be made by court order, by an agreement negotiated through a mediator or other third party, or in certain circumstances declared by the parties. A Section 41 certificate concerning the children will also have to have been made by the court. Only after these stages have been carried out can the court be satisfied that the marriage has irretrievably broken down. Then it can grant a divorce or separation order.

There are other matters that may delay the parties on the way to divorce.

The hardship bar now applies to all divorces. The court may make an order preventing divorce if it is satisfied that dissolution of the marriage would result in substantial financial or other hardship to the other party or to a child of the family.

It remains to be seen how this test is to be applied by the courts. Following the information meeting, there can be a meeting with a marriage guidance counsellor, for which funding will be available for those entitled to legal aid. Solicitors are to give prescribed information on mediation, counselling and so on.

The court may direct one or other of the parties to attend a meeting with a mediator at which mediation will be explained. No legal aid will be granted for representation by a lawyer unless the applicant has attended a meeting with a mediator to ascertain whether mediation is suitable.

The Legal Aid Board may also decline to grant legal aid for legal representation while counselling is being provided during the period for reflection and consideration.

Section 41 of the Matrimonial Causes Act 1973 is also now changed: the court must have particular regard “on the evidence before it” to the conduct of the parties in relation to the upbringing of the child, the general principle that the welfare of the child will be best served by his having regular contact with those who have parental responsibility and any risk to the child attributed to where the child is to live or with whom. This is a provision that may encourage litigation and require confirmation by the courts.

On financial issues the arrangements for the future, if not contained in a court order or vetted by lawyers or the court, may be a source of litigation in the future when the parties appreciate the consequences of their agreement.

One helpful provision in relation to children is that an interim care order or an emergency protection order may now contain a power to exclude. This will be an improvement on the situation where it is the child who has to be removed from the home.

The Family Law Act also includes transitional provisions to deal with divorce after the Act is passed. This will enable divorces to take place under the existing law where proceedings were begun during the transitional period, or where the parties began to live apart before that period began. The transitional period is expected to last two years.

There are many good intentions behind this Act but there are also amendments, particularly relating to conduct and to timescale, which may result in premature litigation.

It is up to family lawyers to ensure that the Act works in accordance with its principles and it is up to legislators to ensure the regulations are constructive and helpful after consultation.