Practical Law Family: what to expect in 2014

This article summarises the main developments expected in 2014 that will affect private family law practitioners in England and Wales.

We will be updating our resources to reflect the changes when these are made.

Key challenges for practitioners include the implementation of the single family court due in April 2014 and the introduction of mandatory standard form orders with their associated house rules.

The new single family court will be introduced in April 2014. It will be a national court for all family proceedings in England and Wales. Family cases will no longer be heard by the county court or the family proceedings court but will instead be heard by the family court.

The introduction of the family court will remove confusion about where family cases should be issued and heard. From April 2014, applicants will send their applications to the family court, which will allocate the case. All cases will be started in the family court. All levels of judges and magistrates will work alongside each other, hearing cases of an appropriate level of complexity. The family court will be able to sit anywhere, though it will usually sit in the county courts and magistrates' courts where family cases are currently heard.

The High Court will continue to operate in addition to the family court. This will preserve the inherent jurisdiction of the High Court and enable the family court to transfer cases to the High Court where recourse to its exclusive jurisdiction is needed. This will include wardship proceedings and certain international children cases.

The Court of Appeal and the Supreme Court are unaffected by the proposed changes.

In November 2013, the President of the Family Division, Sir James Munby, released for consultation the first batch of 30 proposed standard form orders, which are due to become mandatory from April 2014.

The project was announced in July 2013 in the Fourth View from the President's Chambers. Sir James Munby P explained its rationale, saying, ''inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised".

The orders have been prepared by a team led by Mostyn J and cover many aspects of family procedure. They include the following financial orders:

The proposed standard form orders also include the following:

Further batches of proposed standard form orders will follow in due course.

Mostyn J's team has also produced ''House Rules'' which will govern the format of all standard form orders, including for example, prescribing that orders should be in 12 point Times New Roman font.

To view the proposed standard form orders, see Standard document, Proposed family standard form orders.

Practical Law Family will be publishing the new standard form orders as soon as these become mandatory, together with integrated drafting notes explaining when the various orders should be used. We will also keep practitioners updated through our weekly and monthly legal updates about the further batches of orders as they are released for consultation and dates for implementation are confirmed.

The Law Commission began a project in October 2009 examining the status and enforceability of "marital property agreements". The term as used by the Law Commission includes pre-nuptial agreements, pre-civil partnership agreements, post-nuptial agreements, post-civil partnership agreements and separation agreements.

In January 2011, the Law Commission published Consultation Paper Marital Property Agreements (Law Com No 198). The paper reviewed the current law relating to marital property agreements, discussed options for reform and posed questions to consultees.

In February 2012, having considered the responses to its earlier consultation, the commission extended its project to consider the law relating to needs and the legal status of non-matrimonial property. Reform of these core areas of matrimonial finance will assist practitioners when drafting nuptial agreements and, in the wider sense, when advising clients of the possible outcomes in financial remedy proceedings. A supplementary consultation paper, Matrimonial Property, Needs and Agreements (Law Com No 208) was published in September 2012. Various discussions took place around the country including a symposium at Inner Temple Hall in December 2012. The consultation closed in December 2012.

The responses to the consultation papers show support for the introduction of qualifying nuptial agreements that will oust the jurisdiction of the court to make financial remedy orders, provided that appropriate safeguards are put in place. It appears from Law Com No 208 that the Law Commission is advising the government that:

The Law Commission expects to publish its final report on the Matrimonial Property, Needs and Agreements project in early 2014, together with a draft bill for Parliament.

For a summary of the practical implications for practitioners of the proposals contained in the consultation papers, see Checklist, Nuptial agreements: safeguards: Law Commission proposals and for a more detailed consideration of the proposals, see Practice note, The future of nuptial agreements: qualifying nuptial agreements.

The Marriage (Same Sex Couples) Act 2013 (MA 2013) received royal assent on 17 July 2013 and the government announced on 10 December 2013 that same sex marriages will take place from 29 March 2014.

The MA 2013 also provides for same sex couples who married abroad under foreign law and are currently treated as civil partners to be recognised as married in England and Wales and allows civil partnerships registered in England and Wales to be converted into marriages.

The government intends to implement the MA 2013 by laying statutory instruments before Parliament in early 2014. These will amend primary and secondary legislation and the Family Procedure Rules 2010. Implementation of the MA 2013 will lead to statutory reviews of the Civil Partnership Act 2004 and differences in survivor benefits offered by occupational pension schemes.

For further information, see Legal Update, Same sex marriage to take place from 29 March 2014.

The government has published Child Support Fees Regulations 2014, which are expected to come into force in 2014. These regulations provide that the Secretary of State (SS) acting through the Child Maintenance Service (CMS) can charge fees for the administration of the statutory child maintenance scheme.

The government has published Child Support (Ending Liability in Existing Cases and Transition to New Calculation Rules) Regulations 2014. These draft regulations make provision for:

The transition period will begin on the date that the draft regulation comes into force in 2014 and will end on 31 December 2017. The Secretary of State (SS) will issue notices to the NRP and PWC providing a liability end date for the existing case (regulation 6). The notice will invite the parties to enter into a family based arrangement or to remain in the statutory child maintenance scheme.

If the parties choose the latter, they must apply for a statutory child maintenance calculation under the gross income scheme before the liability end date (regulation 5). The calculation will be made on the information available on the date that the NRP is notified of the application but will be backdated to the day after the liability end date (regulation 7).

The following cases will not be subject to transition to the gross income scheme:

(Regulations 4(2) and (3)).

The Children and Families Bill 2013 (CFB 2013) was laid before Parliament on 4 February 2013. It will amend the Children Act 1989 (CA 1989) to abolish residence and contact orders and will introduce child arrangement orders (CAOs). CAOs will regulate when and with whom a child is to live, spend time with or otherwise have contact. Parental responsibility, specific issue and prohibited steps orders will be unaffected.

Schedule 2 to the CFB 2013 sets out the amendments to be made to the CA 1989. The term "live with" will replace residence orders. The term "spend time or otherwise have contact with" will replace contact orders. This allows the distinction between contact and residence to continue to be made where necessary to make sense of ancillary legislative provisions.

Contact activity conditions and directions will remain, but the reference to 'contact' will be omitted. Activity directions and conditions will apply to all CAOs. Enforcement provisions in the CA 1989 will apply to any provision of CAOs.

The CFB 2013 is expected to receive royal assent during early 2014, with a view to implementation by September 2014.