By the end of this year, we could be looking back on a pivotal twelve months for family law in England and Wales.

Sarah Havers and Brogan Pennington consider the key family law developments for 2024, including the Labour Party’s cohabitation law reform commitment, the Law Commission’s review of the law on pre-nuptial agreements and the division of finances on divorce, and continued moves towards alternative dispute resolution.

Cohabitation

Ahead of a general election this year, the Labour Party has committed to reforming cohabitation laws, recognising that “for too long, women in cohabitating couples have been left with no rights when those relationships come to an end”.

Cohabiting couples are the UK’s fastest and most significantly increasing family type. So, it is no surprise that the clamour for reform to safeguard those most vulnerable and reflect changing family structures has gathered pace in recent years.

Many couples mistakenly believe they are protected under ‘common law marriage’ and are automatically afforded the same rights as married couples. This is not the case in England and Wales. The only financial claims a cohabiting couple may have upon separation are on behalf of any minor children of the relationship or potentially in relation to property (in specific circumstances).

The difference upon relationship breakdown for a married couple versus a cohabiting couple can be stark and can leave the financially weaker cohabitee in a highly vulnerable position.

At present, an unmarried couple could have lived together for 20 years, but if they have not had children or their children are already adults, they will have no financial claims upon the breakdown of their relationship. In contrast, the starting point for determining a married couple’s financial claims upon divorce is that they should share equally in the wealth generated during the marriage regardless of whose name it is held in.

The unfairness generated by the current lacuna in the law is further highlighted by the contrast between a cohabitee’s rights on separation versus upon the death of their partner. If one half of a cohabiting couple dies without making sufficient provision for their partner in their will, the surviving partner may have a claim under the Inheritance Act 1975 as a dependant. However, if they simply separate, then there are no financial claims.

Reform in this area is long overdue. Several proposals for reform have been put forward by many bodies, such as Resolution, and approaches taken in other jurisdictions, such as Scotland and New Zealand, have also been proposed, for example:

1. Introduction of certain “eligibility criteria” for those long-standing cohabiting couples.
2. The ability to apply for maintenance to reflect relationship generated disadvantage.
3. The creation of a legislative “safety net” for those most vulnerable on relationship breakdown.

If the Labour Party does come into power and follows through on its commitment to reform the law for cohabiting couples, there will inevitably be a rise in cohabitation agreements to regulate the financial terms of an unmarried couple’s separation.

Review of 50-year-old law governing the division of finances on divorce

The publication of the Law Commission’s scoping paper, due in September 2024, is eagerly awaited by family law practitioners in the hope that it could pave the way for a full review and reform of the current financial remedy law. This is arguably the next logical step following the introduction of ‘no-fault divorce’ in April 2022.

In its review, the Law Commission will carry out a detailed analysis of the current laws that were put in place half a century ago to determine whether they are working effectively for all involved or whether the current framework requires reform to align with the needs of society today. There will be various considerations, but a key focus will be on fairness versus certainty.

The Law Commission has confirmed that the report will consider whether the court’s current discretionary power to decide a “fair” division of finances upon divorce is replaced by a clear set of principles enshrined in law.

Will pre-nuptial agreements finally become binding?

Pre-nuptial agreements in this country, although persuasive, are not binding. It is unlikely we will see any significant change to the law on pre-nuptial agreements in 2024. However, as part of its scoping report due later this year, the Law Commission will revisit its previous 2014 recommendations to make such agreements binding (as ‘Qualifying Nuptial Agreements’) to see whether these recommendations need updating.

The government has already stated that pre-nuptial agreements affect “a relatively small and privileged cohort, and [the issue] must take its place in the queue on that basis”. While reform does not seem imminent, the Law Commission review demonstrates that the status of pre-nuptial agreements and the possibility of them becoming legally binding remains a live and ongoing issue and may add to the pressure to legislate.

If pre-nuptial agreements become binding in England and Wales, it would bring our law in line with many of our European neighbours and the United States. Subject to safeguards, binding pre-nuptial agreements would finally recognise the autonomy of couples to make their own decisions in the event of divorce.

Transparency in children cases – justice needs to be seen to be done

In recent years, the family court, particularly in financial remedy cases, has undergone a wholesale shift towards far greater transparency, with the media able to attend hearings and report. The parties no longer have an automatic right to anonymity.

It is anticipated that in 2024, a similarly seismic shift will be seen in relation to children proceedings in the family court. This follows the launch of the pilot scheme in January 2023 in relation to public law cases permitting media access and reporting of hearings (subject to the anonymity of the children involved).

We anticipate that this increased transparency in children cases will translate into an uptake in alternative dispute resolution (ADR), particularly arbitration, as parties attempt to maintain privacy and exclude media presence.

Arbitration

In a push towards transparency, anonymity in the family court has been a hot topic, particularly over the past year. As a result of this increased transparency, parties are increasingly moving away from resolving their disputes (both financial and children-related) in the overstretched family court system and towards using arbitrators who have both the experience and time to grapple with the issues of their case. Arbitration guarantees parties privacy while allowing cases to progress quicker and more cost-effectively. We expect to see a continued uptick in the number of families turning to arbitration to resolve the issues arising upon the breakdown of their marriage or relationship.

While we are not likely to see reform of the law relating to cohabitation or pre-nuptial agreements in 2024, it is a positive step that these topics are back on the political and legal agenda for the coming year, which will hopefully result in reform in the near future.