Legislation that we probably will not get from the new Conservative administration

  • May 26, 2015
  • By Hunters Law

Conservative governments are never eager overtly to legislate in the area of social policy, and all Governments are wary about dealing in the murky world of divorce law. The last days of the Major government were made more difficult in 1996 when the Family Law Act of that year (which introduced no fault divorce and other progressive and useful measures) fell foul of the “bastard” wing of the party.

This new Government would face no such problems with the Law Commission’s recommendations concerning marital agreements (including pre-nuptial agreements) which were published just over a year ago. This gave a considerable endorsement to the concept of Nuptial agreements, citing in particular how apt they might be where there were existing assets to protect, or for those marrying later in life where there existed well developed finances and existing family obligations. Indeed, it went so far as to recommend legislation to introduce the Qualifying Nuptial Agreement. The legislation would require that such an agreement (to cite the principal criteria) is concluded 28 days before the ceremony, that both parties have had had independent legal advice in relation to the agreement, and that there has been disclosure of material financial information.  If these requirements are met, the Court would be required to uphold its terms unless these left one party in a position where they were unable to meet their need for accommodation and an income.

There would be almost universal support for such legislation amongst family lawyers, and it would probably have a substantial majority in both Houses of Parliament.  A Bill has been drafted, and one must hope that legislative time might be found to put it in place.

Much less confidence would attend to the possibility that there might be legislation to protect cohabitating couples.  The canon of divorce legislation, which provides comprehensive protection to married couples or civil partners who suffer relationship-generated disadvantage, does not apply to people who cohabit without that status. It is a constant surprise to family lawyers how widely it is believed that the concept of the “common law wife/husband” still exists, and with it the thought that it affords protection. There has been no such status for well over 200 years, and if someone plays that role without a marriage or civil partnership certificate, and even if they do so for decades (which has been the position in some of the most distressing cases) the weaker party acquires no ability to make any personal claim from the other if the relationship breaks down. Many more couples prefer to cohabit these days, and about half of all children are born to couples who do so.  The law should reflect social trends such as this, and put in place measures that can provide the protection that is sometimes needed.  Once again, draft legislation already exists having been the subject of two private members bills introduced into the House of Lords, where they were extensively debated.

I fear, however, it will be seen as a step too far.

What about the Hunting bill? This tortuous piece of legislation was introduced in the teeth of huge rural opposition, required the use of the Parliament Act, and has been found to be almost largely unworkable.  Since then hunting has, if anything, prospered, drawing support from those who might not wish to hunt themselves, but thought that Government had no place in telling others not to do so.  The countryside expects repeal. A free vote on such a repeal was a commitment in the Tory manifesto. The hunts have provided huge support to Tory candidates in Tory/Lib-Dem marginals (and not so marginal), and, certainly in the South West could claim some credit for the astonishing Lib-Dem collapse in its former heartland witnessed on May 7th.  A free vote might pass through the House of Commons, and as the House of Lords objected to the legislation in the first place, there may be confidence that it agree to its excision.

But will they go for it? Government business managers may reckon that with everything else going on, to introduce an issue around which a viable opposition could coalesce (one that is not visible anywhere else on the political horizon), would be a strategic error. In circumstances where hunting is surviving and surviving quite well why risk it? They may also take the view, perhaps not shared by the hunting fraternity, that the sport is best protected over the long term by the retention of a flawed, discredited and unworkable Act, rather than returning the issue to the political fray, and clearing the decks for the anti-hunting lobby to fill it with a better bill when the force is with them again, when the flywheel of political preferences moves in their direction once more as, inevitably, one day it will.

Henry Hood 
020 7412 0050 

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