- February 2019
Matrimonial Reflections from Ruth Jenkins, Family Consultant at our Ipswich office
This will be the last article that I write for Jackamans, as after nearly 10 years with the firm, and about 35 years working in family law in Ipswich, I am retiring from practice as a solicitor. I’ve been reflecting on the changes that I’ve seen in that time.
There were few contested divorces in the mid-1980s, and even fewer now, the recent high profile Owens divorce notwithstanding. More often than not the content of a petition is agreed before the proceedings are issued.
More significantly there are considerably fewer contested financial applications, with most being settled between the parties either after formal mediation or simply after negotiations through their solicitors. Speaking for myself achieving a settlement gives more job satisfaction than a judge’s order, and is less likely to be breached.
In the 1980s entrenched custody and access disputes were unfortunately common, but the Children Act 1989 introduced the concepts of residence and contact, with the notion that both parents retained parental responsibility and that it was the child’s right to spend time with both of their parents. That change of emphasis has created a different landscape for the arrangements for the children. Shared care is comparatively common compared with the 1980s when my perception was that mothers overwhelmingly retained custody of their children. There are still disputes of course, but my perception is that overall these have reduced.
I have to acknowledge of course that a significant driver in the reduction of disputes is also that legal aid has been more than decimated, so that many people simply cannot use the courts to resolve disputes, and achieve what they perceive as a fair settlement of their claims. A free advice session at a local solicitors or advice clinic is by no means an adequate substitute.
I don’t mourn the passing of the affiliation order process in the Magistrates court, virtually unchanged from Victorian times, to obtain a declaration of paternity and some financial support for the children of unmarried parents. DNA testing has played a role in that, as has the change in societal attitudes towards not only equal parenting but the choice to marry or not. That’s also been reflected in the recognition of same sex marriages and adoption by same sex couples.
Sadly the myth of the common law marriage persists, and this is my final chance to debunk the myth – if you are not formally married or in a civil partnership you have no financial rights against your former partner when the relationship breaks down, unless you can prove the existence of a trust. Take advice when you move in together. More positively, over my years of practice, pre-marital agreements (“pre-nups”) have moved from being unenforceable to being a factor to which a court will attach significant weight if properly drafted with the required safeguards observed.
This article provides only a general summary and is not intended to be comprehensive. Special legal advice should be taken in any individual situation.back to articles...