20 November 2023

Family Justice – what improvements need to be made?

Family Awareness Week 2023

There are many issues in family law that can leave people with a sense of injustice. These are often not through the fault of either party or their solicitors, but against the current socio-political climate that has resulted in a system fraught with gaps that are in desperate need of reparation.

Here are some of the more common issues :


Reinstating legal aid for private children matters to prevent backlog

When conflict arises in relation to your children, it can be difficult to know where to turn. Legal Aid was previously available to assist people, but this has of course virtually disappeared and mediation pushed.

Mediation is a fantastic tool that is often highly advisable, yet the issue remains that people, especially during the cost-of-living crisis do not always have access to funds to attend mediation or receive legal advice, nor do they perhaps understand what mediation is and how it can help. People turn to a Court application without appropriate advice or attempts to settle because they have limited options and understanding. This leaves families in a limbo waiting for a listing and without any resolution for the people who are truly affected – the children.

Reform is needed, whether that be by funding or improving the public’s knowledge and perception of mediation. The Court system simply cannot cope with the volume of applications and access to appropriate services is needed. Aside from it being an administrative nightmare, it is fundamentally wrong that these children are without a parental relationship because of the lack of support provided by the system.


Providing more rights for cohabitees

Whilst it would definitely help to have clear boundaries and discussions regarding money before cohabitation, that does not always reflect what happens. This can result in people who have been in a long-term, cohabiting relationship being left with limited assets upon separation.

There is a myth that ‘common law marriage’ is a concept in the UK but this fundamentally untrue. The only right a cohabitee has is to the jointly owned property and assets. All assets in the other person’s sole name are theirs and there is no right over these. Understanding this can help ensure that people can provide security for themselves. However, a party may not always want to share their assets and therefore reform is required to reflect the position in a relationship that one has held for many years.

The Labour party has promised reform in this area, and it would be hugely beneficial to see some action. If a man has lived in a house with his girlfriend for fifteen years but that house is in her sole name, there is no automatic right to any of that asset. It is a difficult and costly argument to prove that a portion of that property was meant for him whereas in a marriage, there would be an automatic assumption. People and relationships are individual and nowadays, marriage is not a primary concern for many for a variety of social and financial reasons. Cohabiting families have accounted for three-quarters of the growth in the number of families in the UK in the last ten years. Whilst we can set out the legal benefits of getting married, that is not the solution and reform is needed.


Ensuring the system works to the best of its ability

The HMCTS portal provided a lot of promise to increase the efficiency of matters, but the reality unfortunately does not always match. Evidence has been collected from various solicitors and it has been a consensus that the online portal in various areas of law has created delays that otherwise would not have been present.

We recently had to attend a remote hearing and were told to upload the Financial Remedy Order so the Judge could approve it there and then, which unfortunately has still not happened. Whilst the support staff do try and provide meaningful assistance, without the ability to directly contact a Court we are often no further along than we would have been without it.

Hopefully improvements can be made, and the system streamlined for all of those users, but it is sadly seeming indicative of the Family Court system and their delays overall. Children are going without seeing their parents and people are having to remain in properties that they cannot afford because delays and backlogs have created a mountain of applications that, coupled with the physical issues with the system, means that seeing to the tasks in a timely manner is a monumental task.



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