I wonder what I would have said in 1998 if I’d been asked where I saw family law in 25 years’ time. Certainly, a lot has happened in family law since the end of the 20th century.
One of the most significant changes has been in the legal recognition of same-sex relationships. In 1998, section 28 of the Local Government Act 1988 (LGA 1988) still labelled ‘homosexuality’ as ‘a pretended family relationship’, although in 1999 the House of Lords was willing to recognise the relationship of two gay men as family members in the case of Fitzpatrick v Sterling Housing Association. While the general drift was towards greater acceptance of gay and lesbian people, I’m not sure I would have been confident enough back then to foresee new laws permitting same-sex couple adoption (2002), civil partnerships (2004), recognition of two female parents following assisted reproduction (2008) and, of course, same-sex marriage (2013). The latter was surprisingly driven forward by a Conservative government, although one which was notably different to that which was responsible for the LGA 1988.
There were other areas where the law was clearly unsatisfactory, and which I would have hoped would be changed in the following decades, such as the law on divorce and the division of family property. Divorce law changed from April 2022; while the Law Commission is currently looking into financial remedies on divorce, aiming to produce a scoping paper by September next year. Another area of hoped-for change would have been to the legal position of cohabitants on relationship breakdown, but that’s not happened and I’ll return to it below.
A couple of final points before looking forward, regarding the influence of the Human Rights Act 1998 (HRA 1998) and the removal of legal aid from most family law work in 2013. The HRA 1998 has changed the legal culture in the UK and its influence is as difficult to overstate as it is to measure. Indeed, I would argue that many of the changes in family and child law over the last 25 years have occurred through the direct or pervasive influence of the HRA 1998. While many would view the HRA 1998’s impact as positive, few would say the same about the drastic reduction in legal aid provision following the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In 2013 only 14% of family cases involved parties where neither of them had legal representation; that figure is 40% in 2023. Many couples are now not able to get the legal advice and representation they need at a time when they need it most.
Given there’s been so much change since the turn of the millennium, what is left to reform in the field of family law? Some possible developments are more foreseeable from today’s vantage point than others, so I’ll start with those. Reform of the law around how people get married seems likely. The Law Commission has carried out a full review of weddings law and submitted recommendations to government, some of them based on research conducted by OU Law School’s Professor Stephanie Pywell. Another area is reform of surrogacy law. Again, the Law Commission has sent its report and draft Bill to the government and it’s likely that some changes will ensue at some point, particularly around assigning parentage to those involved. But maybe I’m overstating things because history shows that the path of law reform is littered with Law Commission reports which governments have not acted upon. The law of financial provision on divorce is one of the Law Commission’s ongoing projects, although it is likely to be some years before we see the detail of any proposals. It’s reasonable to think that this area of law will change in the next 25 years but I wouldn’t be surprised if it doesn’t.
The issue of cohabitants’ rights seems to be rising up the agenda and remains a campaign of family law solicitors, and the Labour Party has recently said it will reform cohabitation law if it gets into government. Undoubtedly, laws will only change when there is support from the government of the day in the form of time and resources to steer bills through parliament. It’s never as simple as bad laws being prioritised for reform; governing is complex and compromise is often necessary.
I’m going to say, optimistically, it’s more likely than not that the general drift of the law will continue in a liberal – i.e. an approach allowing individuals to decide their own path through life – direction. There is, of course, no guarantee this will be so and it’s possible for law reform to be undone, e.g. look at what happened with same-sex marriage in California. That said, I don’t feel optimistic that the experience of users of the family justice system will improve much or at all. No main political party is committed to significantly increasing funding to improve access to justice and the current government’s support for mediation, while helping some families, is not the answer for many others. As a consequence, I think there will be greater use of a private justice system in the form of early neutral evaluation and arbitration for those who can afford it.
A final thought: substantive and procedural law aside, how we will teach, test and train the next generation of family lawyers in an age of generative artificial intelligence is something we’ll need to work out sooner rather than later.
Dr Andrew Gilbert is a Senior Lecturer at The Open University Law School. Before becoming a lecturer, Andrew was a family law solicitor with a caseload largely funded by legal aid. He has taught family law for many years, most recently working on the production of the new module W230 Family Law. A book based on his PhD, British Conservatism and the Legal Regulation of Intimate Relationships, was published by Hart/Bloomsbury in 2018.