Divorce (Financial Provision) Bill 2017-2019: response to issues raised during the Second Reading debate (original) (raw)

'Common defects of the Divorce Bill and Arbitration and Mediation Services (Equality) Bill 2016-17' (2017) Family Law 425-451.

The Divorce (Financial Provision) Bill 2016-17 and Arbitration and Mediation Services (Equality) Bill 2016-17 share several commonalities. Both are Private Members Bills currently before Parliament that have been introduced repeatedly in the House of Lords. Both had a second reading debate on the same day (27th January 2017). Both were received favourably by the Lords and passed to Committee stage. And most importantly, when both Bills were debated, research findings as to the consequences the proposed legislation would have on Family Law in England and Wales was largely unacknowledged. In this article, we discuss what was not considered but should have been in each of the Lords’ Second Reading debates and the implications of these omissions.

'The Sharia Law Debate: The Missing Family Law Context' (2016) 177 Law & Justice 181-192

Two official enquires and one Private Members Bill are currently grappling with the ever-controversial topic of the operation of sharia tribunals in England and Wales. While these developments are valuable in that there is still a missing evidence base in terms of Sharia tribunals, this narrow focus on Sharia misses the point that a wider reappraisal of family law matters is required. This article contends that the sharia debate points to wider concerns about two areas of family law in particular: the formalities concerning marriage and the privatisation of family justice. It concludes that concerns about sharia tribunals cannot be addressed without paying attention to wider family law developments.

Community of property - the logical response to Miller and McFarlane?

The House of Lords decision in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 edges us closer to a community of property approach to ancillary relief on divorce where assets exceed needs. Drawing on an empirical project funded by the Nuffield Foundation, this paper will consider whether discretion has had its day and should be replaced by a formal community of property regime in England and Wales. Nuffield Foundation

Cohabitants, Choice, and the Public Interest

Philosophical Foundations of Children's and Family Law

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions – such as what people who live together should owe one another and the balance between choice and protection – through a lens of legal attention to institutional matters such as legal sources and the respective roles of judges and legislatures. The examples used are Canadian cases on unjust enrichment and English cases quantifying beneficial interests in cohabitants' jointly owned home. A major theme is the limits on judicial law reform in the face of social change, both in substantive scope and in the capacity to acknowledge the state’s interest in intimate relationships. The chapter aims to relativize the focus on choice so prominent in academic and policy discussions of cohabitation and to highlight the character of family law, entwined with the general private law of property and obligations, as a regulatory system.

PRIVATE AUTONOMY AND MARITAL PROPERTY AGREEMENTS

After the Court of Appeal decision in Radmacher v Granatino, the question whether English law should introduce enforceable pre-nuptial or marital property agreements came into focus again. Taking the decision as a starting point, the article argues in favour of introducing such agreements. Adopting a comparative approach, the article explains how such agreements are used in Germany and demonstrates that the idea of private autonomy, which has been regarded as the basis of pre-nuptial property agreements in Germany since the 19 th century, can explain why couples should be allowed to make their own decisions with respect to the financial consequences of the breakdown of their relationship. Analysis of the different notions of contract in German and English law as well as comparing marriage with partnerships and other long-term contractual relationships illustrates not only the historical reasons why such agreements have not been allowed so far, but also helps to understand what safeguards the legislator and the judiciary could apply to ensure that parties do not abuse their freedom.