And a look ahead to 2020….

Posted on 17 January 2020

And a look ahead to 2020….

The Supreme Court is expected to give judgment in the cases of Villiers v Villiers and XX (Respondent) v Whittington Hospital NHS Trust in the coming year. Villiers relates to jurisdiction between the constituent parts of the UK and whether proceedings for divorce and maintenance are "related actions" for the purposes of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. XX raises the question as to whether a party recovering damages after a hospital's failure to detect cancer can recover damages for the expenses of surrogacy arrangements (potentially abroad). The shape of the UK's future political and legal relationship with the EU after Brexit will also hopefully become clearer as the year progresses.

Two Bills that have been revived in the Queens Speech following the election are the Domestic Abuse Bill and the Divorce, Dissolution and Separation Bill. The Domestic Abuse Bill Introduces the first statutory definition of domestic abuse (which includes economic abuse), introduces new Domestic Abuse Protection Notices and Domestic Abuse Protection orders, prohibits the cross-examination of complainants by their alleged abusers in the family courts and provides automatic eligibility for special measures for victims to support their giving of evidence in the criminal courts. It also establishes a Domestic Abuse Commissioner to champion victims and survivors.

The Divorce, Dissolution and Separation Bill reforms the process of obtaining a divorce, dissolution or judicial separation and seeks to introduce a system of so-called "no fault" divorce. The aim of the reforms is to reduce conflict between separating couples and the damaging effect of such confrontation on children. The Bill retains the sole ground of divorce as "irretrievable breakdown" of the marriage, but no longer requires that this ground must be evidenced by one of five "facts". Instead, there is to be a statement that the marriage has irretrievably broken down. There is also provision for the parties to make a joint application, where the decision to divorce is mutual.  Significantly, the Bill removes the ability of one party to contest the decision to divorce.

Kate Clark comments: "Both of these Bills are long overdue and it is hoped that they will now pass through Parliament relatively swiftly. The current law on obtaining a divorce was enacted nearly 47 years ago and requires parties to either be separated for a minimum of two years, or to rely on a fact connoting blame before a divorce can be granted. Society has moved on and it is high time that the law reflected the need for families to focus on as amicable a future as possible after separation – particularly where children are involved.  It is also important that the law recognises the potential impact of domestic abuse in all its forms. A number of recent cases have shown the difficulty faced by the courts when a party alleging abuse is to be cross-examined by their alleged abuser. It is hoped that the Domestic Abuse Bill will help provide better outcomes for all those involved in cases where abuse is alleged".

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