Family law – does one size fit all when it comes to marriage, civil partnerships and the end of those relationships?

You might have seen the image of Lady Justice – the statue of the lady with the weighing scales and blindfold on regularly depicted in Courtrooms across the UK? Today, this depiction of justice is taken to mean justice is impartial and simply weighs the evidence before it.

What does that mean for someone facing a family difficulty who may need the help and support of the legal system in some way?

The answer should be that the law should be applied equally and fairly regardless of who it is that wants or needs the Court.

So, in theory, the outcome for any application involving the family court should be the same for everyone, right?

Not right.

People are both the same and different. We are all the same at the most fundamental level, i.e., a carbon-based lifeform reliant on the air to breathe and having a similar set of internal organs, but after that, there are billions of variations.

This variety, scaled down hugely, is seen throughout the family law system: that one family is never going to be exactly the same as another in how it’s made up. You might have the “nuclear” family set up of a male parent, female parent and children they share biologically and genetically. You might have children living within their found family perhaps because their own biological parents have been unable to provide them with the home they need because of their LGBT identity. And not-quite married step-parents, half-siblings, adopted children; related and non-biological carers in place of biological parents and every other combination in between too.

“Family” can be a single word for a big, small, simple or complex group of people, born, adopted, acquired and found.

The laws which deal with those relationships and interactions (collectively “Family law”) have to try and keep up with the people they apply to but the change in law can take a while to catch up to reality.

In England & Wales, legal change does happen, just not overnight. So, when a family breaks down currently, in 2024, what options are now available for ending the different types of legally created family relationships and do they cover everything?

Divorce

You might recall the “old” style of divorce which required factual statements about why the marriage had broken down – one of which was “adultery”.  The technical definition of adultery was that sexual intercourse had taken place between a man and a woman outside of the marriage. So, although couples of the same gender have been able to get married since 2014, they were not able to rely on adultery to get divorced, even though it is entirely possible one of them could have had sex with someone of the opposite gender.

As of April 2022, we now have “no fault” divorces available which mean that you don’t have to say who did what, only that the marriage has broken down irretrievably. This can be a lot better regarding the reality of relationships which come in all shapes and sizes and break down in all ways and sometimes have ended “just because”.

What about an annulment?

It is also possible to end a marriage on the basis that it was never legally valid (and is “void”) or was legally valid but no longer is (“voidable”).

A void marriage is one where, for example, someone was already married to another person or you find out you are too closely related to be legally married. The marriage could and should never have existed.

One of the reasons a marriage might be voidable is if one (or arguably both) of the spouses is in the process of transitioning to a different gender.  Another is where there has been a refusal to consummate the marriage (but this is not available for same-sex couples whether in a marriage or a civil partnership yet, something that Family law needs to get with the times about perhaps?).

And what about Civil Partnerships coming to an end?

The rules for ending a Civil Partnership are generally the same as for marriages in terms of what you need to end them, but the terms used are different – we “dissolve” a Civil Partnership rather “divorce.” Additionally, terms like “husband” or “wife” aren’t legally applicable in a Civil Partnership, so “Civil Partner” is used instead. While this term may feel somewhat formal and a bit of a mouthful to say, and just using “partner” can sometimes feel ambiguous, language around relationships continues to evolve.

What about Judicial Separation?

A relatively rarely used process but one that might appeal to people unable to divorce or dissolve a civil partnership. It is a process similar to a divorce or dissolution save that it does not fully end the legal relationship so that means you are not free to remarry/form a new partnership. It’s a “legal separation” in more common parlance.

It can be used if you have been married/civil partnered for less than 12 months or, perhaps more commonly, where there are religious, cultural or societal limitations around divorce.

You can still obtain an order sorting out all the finances with one major exception – the Court cannot issue final orders for pension fund sharing. Your solicitor can explain more on this front.

If you then wanted to remarry/form a new civil partnership, you would still have to obtain a final order of divorce/dissolution.

When it comes to finances, the Family Court should look at the same factors, regardless of the type of legal relationship between the people separating, and then consider how to apply the financial resources to best meet their needs and achieve a fair financial outcome. As with marriage and civil partnership, one size (financial outcome) does not fit all—it all needs shaping to you and your family.

For tailored legal advice that suits your family, however that may look, please contact the experienced and capable Family team at Geldards