This blog post has been contributed by Professor Robert Jago, Module Convenor for Family law.
The year 2023 has proved to be a busy one for the Law Commission of England and Wales (Law Commission) in the area of Family Law. In March, the Law Commission with the Scottish Law Commission published a range of recommended reforms following the conclusion of its project on surrogacy laws and then in April the Law Commission launched a review of how the law distributes finances after divorce (and the dissolution of civil partnerships). In this blog we consider these two projects and reflect on their importance in the study of Family Law.
The Law Commission was set up in 1965 following the enactment of the Law Commissions Act 1965 and it is a statutory independent body which has three main stated aims. These are to ensure the law is fair, modern, simple and cost effective; to conduct research and recommendations which are then considered by Parliament and to codify the law, eliminate inconsistencies, repeal obsolete enactments and reduce the number of separate statutes. Over the years, in the area of Family Law, the Law Commission has reported on a wide range of issues including Restitution of Conjugal Rights (1969), Nullity (1970), Jactitation of Marriage (1971), Custody of Children (1976), Illegitimacy (1982), Review of Child Law (1985), The Grounds for Divorce (1990) and Domestic Violence and Occupation of the Family Home (1992). The Law Commission states that more than two thirds of the law reform recommendations made have been implemented.
The first project we are considering here is in surrogacy. Students will recall that surrogacy is where a woman who is known as the surrogate bears a child on behalf of another couple or individual who then intend to become the child’s legal parents. The present law in this area is governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. This project was launched in 2017 where it was stated the current law was not fit for purpose. This assessment was linked to the current process the intended parents must wait until the child is born before applying to the court for a parental order which can take more than six months. Until the order is granted the surrogate is still the legal parent of the child which means they have responsibility for the child and all decisions emanating from the responsibility which does not reflect the lived reality for that child. There are also ongoing concerns about the status of payments which are made legally for the reimbursement of certain expenses but lack clarity in terms of the amounts and the current monitoring of those payments.
A consultation paper, ‘Building families through surrogacy: a new law A joint consultation paper’ followed in 2019, which outlined a new process for surrogacy and after receiving over 680 responses the Law Commission published its final report ‘Building Families Through Surrogacy: A New Law Summary of Report’ and draft legislation in March 2023 ‘Building families through surrogacy: a new law Volume III: Draft Surrogacy Bill’. This report recommends a new regulatory regime for surrogacy which includes a new pathway to legal parenthood where the intended parents would become parents upon the child’s birth, and this would only be terminated if the surrogate withdrew their consent. In addition, individual surrogacy arrangements would be overseen by a non-profit organisation, international surrogacy arrangements would be subject to legal and practical requirements to safeguard the welfare of the child, the parental order process would be reformed where an order could be made even if the surrogate does not consent and the child’s welfare requires the order to be made, and a new surrogacy register would be created where a child could then trace their origins when they are older. The report also reviews the issue of payments and confirms that commercial surrogacy remains prohibited and new rules on payments would provide clarity where medical and wellbeing costs, pregnancy support and travel and loss of earnings would be recoverable but compensatory payments for carrying the child and living expenses such as rent would not. The underlying aim of the regulation of payments is to ensure surrogacy remains an altruistic act and avoids the possibility of exploitation.
Inevitably surrogacy can be a controversial topic. There are those who support a regulated process which can enable individuals, who are unable to have children, to enjoy the benefits that a family may bring. There are others who remain concerned about the risks of exploitation and tendency to prioritise the wishes and feelings of adults over those of children. In addition there are some who would argue the recommendations for reform do not go far enough. Please see, Position Statement on the Law Commissions’ “Building Families Through Surrogacy: A New Law”, (SurrogacyUK, 2023). Meanwhile others who feel they go too far. Please read, A child’s best interests, not the desires of adults, should be at the heart of surrogacy, (The Guardian, 2023). After the publication of the Law Commission’s recommendations, Ranvieg Svenning Berg asked whether, if implemented, the reforms would be ‘timid tinkering’ or ‘nothing short of revolutionary’ (Nuffield Council on Bioethics, 2023). Whilst reform does appear to be necessary these recommendations will not be implemented any time soon suggesting students will not be required to reconsider the law in this area just yet. In November 2023, the Health Minister, Maria Caulfield wrote to the Law Commission and confirmed that ‘While we appreciate the importance of this work, parliamentary time does not allow for these changes to be taken forward at the moment.’
Meanwhile, back at the Law Commission the focus has now shifted to the second project on how the law distributes finances following divorce (or dissolution of a civil partnership). For more see Financial remedies on divorce, (Law Commission, 2023). This is not the first time the Law Commission has reviewed this area of law, having previously reviewed orders for the sale of property under the Matrimonial Causes Act 1973 in 1973 and Family Property Law in 1971, 1974 and 1978. However, it is now fifty years since the Matrimonial Causes Act 1973 was passed and the statutory regime for distribution (post-divorce or dissolution) has been supplemented by judicial principle regarding needs, equal sharing, compensation, and autonomy. These developments have demonstrated a commitment to flexibility but have also generated a certain amount of uncertainty (see Is divorce fair? A closer look at ‘meal-tickets for life’ (Vardags, 2023) for a review of the current law and reform proposals to date). This project will consider whether the current discretionary powers of judges need to be reviewed and refined, the powers of the courts when it comes to finances for children over 18, how maintenance payments for ex-spouses or civil partners should operate, what provisions might be necessary for separated parties, how pensions feature in the distribution of assets and any other factors necessary for judges to consider when making the necessary orders. The Law Commission will publish a scoping paper in 2024 and in studying Family Law, students will be expected to think about what a reformed defensible distribution of resources system might look like coming on the back of divorce reform in 2020.
Whilst 2023 saw the end of the journey for the Law Commission’s work on surrogacy, it also saw the beginning of the journey for its work on financial provision post-divorce and dissolution. Back in 1998, John Dewar published his seminal article on the Normal Chaos of Family Law, where he explored the chaotic state that Family Law might sometimes appear to be in. Given recent activities at the Law Commission it may appear that the current law in a range of areas is chaotic and in need of reform. However, Dewar concluded that chaos should not be seen as a threat. In fact, he said ‘That family law should be in a chaotic state is perhaps scarcely surprising, given the social facts with which it routinely deals. Family law engages the passions as no other legal system does and it is a hallmark of passion that it must exceed rationality.’ Do you as a student of Family Law agree?