Looking ahead to 2024 in family law

As we head into 2024, this article looks at some of the potential developments that may come into the family law arena.

1. Nuptial agreements

Perhaps an area of family law that is long overdue for a further step forward is that of nuptial agreements. The Law Commission filed arguably the most substantial report in this area of law in 2014 being the Matrimonial Property, Needs and Agreements (Law Com No 343). This report recommended the introduction of qualifying nuptial agreements when certain binding conditions had been met.

It is understood that the Law Commission will again address this issue in September 2024. As part of that review, the Law Commission will consider whether the 2014 recommendations should be pushed beyond its previous position.

The use of nuptial agreements in family law within England and Wales has been something of a relative slow burner. Perhaps 2024 will see further significant movement forward.

2. Alternative Dispute Resolution

Practitioners will be acutely aware of the pressure on the family law system and how this was only compounded by the Covid-19 pandemic. 2023 saw a greater push to move aspects of family law into the alternative dispute resolution (ADR) ring.

The government has already extended the Family Mediation Voucher Scheme to the 31st March 2025. Dovetailing this, the Family Procedure Rule Committee (FPRC) started a consultation in 2023 seeking views on proposed rule and Practice Direction changes to encourage the early resolution of private law children and financial remedy matters. The FPRC approved several amendments to the rules in the summer of 2023 that come into force on the 29th of April 2024. Certain exemptions to Mediation Information and Assessment Meetings (MIAMs) are either changed or removed entirely.

At the “gatekeeping stage” in private law children proceedings, and at the allocation stage or at the first hearing in financial remedy proceedings, the court will inquire about any MIAM exemption claimed and review supporting documentation. If a MIAM exemption is not valid, or is no longer applicable, the court may direct that a MIAM takes place. Additionally, if directed by the court, the parties must provide their views on using ADR to resolve the dispute.

The continual move towards increasing the use of ADR in family law will inevitably advance yet further in 2024. When handled correctly, the benefits to the children involved, the parties and the court system are truly astonishing.

3. Small money fast-track procedure

A further development in the functioning of family law in 2024 will be the development of the fast track procedure. The fast track procedure has been brought into financial remedy cases. Following proposals by the Farquhar Committee, the FPRC has approved plans to pilot the fast-track procedure for small money financial remedy cases. It is understood that HMCTS has undertaken work to ascertain which regions might be most suitable for the pilot.

The proposal is for cases with net assets of less than £250,000 to be finalised within six months of issuing proceedings. Financial Statements (Forms E), valuations, mortgage capacities, questionnaires, replies and settlement proposals will be provided before the first hearing which will be treated as a Financial Dispute Resolution appointment.

4. Transparency

2023 saw a significant development in reporting within family law cases. Private law children cases, saw the commencement of Family Reporting Pilot (FRP) on 30 January 2023 in Cardiff, Leeds and Carlisle. This 12-month pilot allowed accredited media representatives and legal bloggers (reporters) to report on family cases, subject to strict rules on anonymity. It applied initially to public law children cases and was extended to private law children cases from May 2023.

The Financial Remedies Court (FRC) also published its final report in this area and recommended that as a default position, reporters should be permitted to report the contents of financial remedy proceedings, provided that the anonymity and confidentiality of the parties is maintained. Interestingly, to enable reporters attending a hearing to better understand the issues, the parties’ ES1s and position statements should be provided to them.

Following the report, President of the Family Division Sir Andrew McFarlane announced that a 12-month transparency reporting pilot will start on 29 January 2024 in the Central Family Court and the FRC courts at Birmingham and Leeds. The pilot will allow reporters to report on proceedings for financial remedies on divorce, and proceedings for financial provision for children (Schedule 1, Children Act 1989 (CA 1989)) and financial relief after an overseas divorce (Part III, Matrimonial and Family Proceedings Act 1984).

This development could have very significant for practitioners and parties and will be something that will be closely followed.

5. Reforming the Child Arrangements Programme (PD12B)

President McFarlane has previously raised the need to reform the Child Arrangements Programme (CAP) (PD 12B). The President raised concerns that there was an unprecedented number of children law applications being brought before family courts and in relation to private law, the court is not the best place for parents to resolve their disputes.

Practitioners will be aware of PD 36Z (Pilot Scheme: Private Law Reform: Investigative Approach), which came into force on the 21st of February 2022 in Dorset and North Wales. PD 36Z modifies PD 12B to provide an alternative procedure for applications allowing for earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings.

PD 36Z intends that the court will also seek to hear the voice of the child more clearly. The pilot ends on the 21st of February 2024 but is likely to be extended until the 28th of February 2025 so that PD 36Z can be expanded into new areas.

This will hopefully lead to a very significant development in private law children cases that will not only benefit the system but more importantly the child/children and families.

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