What to expect in the world of family law in 2023

It is of course impossible to predict what will be the big stories in the world of family law in 2023. Apart from a few things for which dates are already fixed, it is largely a guessing game.

And whatever predictions one makes there will no doubt be bigger stories, and some predictions may simply not come to pass.

Undaunted by any of that, here is a list of five things that MAY occupy the family law headlines next year:

1. Bill of Rights

As anyone who follows the news will know, the Government has for some time been considering introducing a Bill of Rights, to replace the Human Rights Act 1998. The Bill of Rights Bill is now going through parliament, and may reach the statute book next year.

The Bill will continue to give effect to the same rights and freedoms drawn from the European Convention on Human Rights, including the right to respect for private and family life, which is often invoked in family law proceedings.

However, the Bill will change the way in which those rights are interpreted, with the aim of ensuring that they are considered in view of the “UK’s distinct contexts”, rather than closely following the way they are interpreted by the European Court of Human Rights, as is the case now.

This may of course have an effect upon family law in this country, although whether it does, and what the effect will be, remains to be seen.

2. Financial claims survive death of respondent?

The accepted wisdom has always been that financial claims made by one spouse against another will expire upon the death of the respondent to the claim.

But that may change next year, when the Supreme Court considers an appeal by a wife against a decision that her financial claim against her former husband was dismissed following his death.

The wife’s claim was for financial provision following a foreign divorce. Such claims follow similar rules to financial claims following a divorce in this country.

The parties were divorced in Pakistan in 2012. In 2017 the wife made a financial claim against the husband in this country. The claim proceeded, but the husband died in 2021, before it could be adjudicated.

It should be pointed out that the spouse, or former spouse, of someone who dies can also make a claim for financial provision from the deceased spouse’s estate.

3. New children procedures?

Changes are afoot in the way that the courts deal with disputes between parents over arrangements for their children. It seems certain that these changes, or at least most of them, will happen, although whether that will be in 2023 is not yet clear.

The changes include a greater emphasis upon helping couples resolve their disputes out of court; a more investigative approach by the courts, rather than the current adversarial approach which often exacerbates animosity between the parties; a greater emphasis upon the wishes of the child concerned; and a system of reviewing court decisions at a future date, to ensure that they are working as intended.

4. Return to 26 week time limit

Care proceedings are supposed to be completed within 26 weeks.

But that time limit is regularly exceeded. Early in 2022 they were taking an average of 49 weeks.

To address this, the President of the Family Division issued a call for all involved in care proceedings to renew their efforts to keep to the 26 week time limit. His aim is for the necessary change in working practices to ‘go live’ in all local authorities and courts throughout England and Wales by mid-January.

Hopefully, therefore, we will see a huge improvement in the timeliness of care proceedings in 2023.

5. Changes to financial remedies rules?

Lastly, the Government recently indicated that it is conducting a review of the law of financial provision on divorce.

The law used to decide financial provision on divorce has remained largely unaltered for the last fifty years, despite calls for reform from various quarters. In particular, many feel that the current law is too uncertain, with the result that more cases are going to court than should do, because it is unclear how cases should be decided.

There have also been calls to make pre-nuptial agreements binding, rather than the present position whereby agreements are not binding upon the courts of England and Wales, and will only be upheld if the court considers that that would be a fair outcome.

Quite what changes to the law the Government is considering, and whether they will see the light of day in 2023, remains to be seen.

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England. For expert advice, please contact the team.