fivehundred magazine > Private Client Yearbook 2024 > Breaking down silos: family law in the UK in 2024 and beyond

Breaking down silos: family law in the UK in 2024 and beyond

Lucy Enright talks to leading family lawyers about how the law needs to keep up with what family looks like in 2024.

As familial relationships become increasingly complex, the law governing these relationships does too. With the idea of the family unit extending to include unmarried, cohabiting couples and nontraditional routes to parenthood, the law surrounding and protecting all families is shifting to reflect this.

Unmarried couples were declared the fastest growing family type in the UK in 2019, with the Office for National Statistics reporting a 25.8% increase in cohabiting couples from 2008 to 2018. Despite this, and despite the fact that other countries such as New Zealand and Australia have provisions for so-called ‘de-facto’ relationships, there are currently no protections for couples in this position in the UK.

As Farrer & Co partner Frederick Tatham notes: ‘In the UK there’s been a big societal shift; marriage is becoming less popular, and the current law can lead to unfairness’. He points out that these couples are often unaware that they do not have the same protections as those who are married. ‘A lot of parties believe that they’re protected by a common law marriage’, he adds.

Payne Hicks Beach head of family Rebecca Cockcroft agrees: ‘many clients are under the misapprehension that there is such a thing as a common law wife. There isn’t. You could be living with a partner for 20 years, have three children, have no assets or income of your own (because you have been a homemaker raising a family) and your claims are extremely limited and child based’.

This position may change if the Labour Party is successful in the next general election, after Shadow Attorney General Emily Thornberry pledged to reform the law in this area during the party’s 2023 conference.

Hunters Law partner Richard Kershaw argues that this change is overdue, stating: ‘the law for unmarried couples needs to catch up with what’s actually happening in society’. Family Law in Partnership director James Pirrie optimistically observes that: ‘the arrival of same-sex marriage came out of a clear blue sky, and this may be the same’.

Resolution, the body of family practitioners focused on collaborative and constructive approaches, are campaigning for reform as a part of their Vision for Family Justice. The campaign sets out the need to recognise the ‘changing face of families’, alongside calls to improve public funding for early legal advice, increase protection for victims of domestic abuse, and resolve issues around the accessibility of the courts.

Fertility and assisted reproduction

While reform is still needed to bring the laws protecting unmarried couples in line with what family looks like today, when it comes to fertility and assisted reproduction there have already been significant changes.

In October 2023, updates to IVF law ended the requirement for female same-sex couples to go through expensive screenings that were not required for heterosexual couples, and to allow access to IVF treatment for individuals and couples with HIV who have an undetectable viral load.

Meanwhile, the Law Commission published a report on surrogacy in March 2023, setting out a number of recommendations. Cockcroft explains that ‘one of the biggest proposed changes will assign the intended parents’ parentage from birth for domestic surrogacy’. For international surrogacy, she points out that ‘the intended parents still need to work under the old legislation and obtain a parental order for legal parentage to be assigned’. She notes that ‘the whole process of getting a parental order can take months.’

As it currently stands, the surrogate and their partner will get listed as the child’s legal parents at birth, rather than the intended parents, with this only changing once a parental order for legal parentage is in place.

It’s a controversial issue; while Pope Francis called for a global ban on surrogacy as recently as January 2024, the number of parents in England and Wales having children through surrogacy quadrupled between 2011 and 2021, increasing calls for regulators to update their rules around the process.

Financial remedies

Elsewhere, The Law Commission is reviewing the Matrimonial Causes Act 1973, which has been the basis for financial remedy applications for 50 years. The review is expected to be completed by September 2024. The question going forward, says Tatham, is around the ‘tension between fairness and certainty’, between ‘a system of judicial discretion which can result in long, drawn-out, difficult to settle, and costly’ processes but which should enable ‘a bespoke solution’, and the potential of a more formulaic approach which ‘although potentially clearer, might lead to unfairness’.

Within this ongoing review of financial remedies, the legal stance on pre-nuptial agreements in the UK remains a topic of debate. In February 2023 Mr Justice Moor’s judgment in MN v AN [2003] helped bring more clarity. In this case, the wife sought to challenge the enforceability of the prenuptial agreement, contending that she had not believed it would be binding when she signed and that she had signed under duress. However, the agreement was upheld on the basis of the extensive legal counsel received by both parties before and during the prenup signing.

Kershaw explains that it is: ‘quite clear that if you sign one of these documents you should expect to be bound by it’, and that ‘they will continue to gain weight’. A 2014 Law Commission review proposed the introduction of qualifying nuptial agreements as enforceable contracts and these proposals look set to be revisited by the Law Commission later this year. Tatham explains: ‘although the Law Commission are reviewing this, it is an issue that affects relatively few people, and therefore [there is] no date in sight for significant changes to the statutory position’.


2023 also brought the beginning of a transparency pilot scheme across Leeds, Cardiff, and Carlisle, through which accredited reporters and legal bloggers were able to report on family court proceedings with the proviso that they maintain the anonymity of those involved. A 12-month pilot scheme kicked off in January 2024 across the Central Family Court, Birmingham and Leeds.

Any system introduced after the pilot will need balance the need for privacy for those involved in sensitive proceedings, according to partners. Tatham describes the situation as ‘an unsettling time for lots of clients’, explaining that ‘we’ve seen a big shift towards transparency over the years’, which has, in his experience, ‘encouraged people to negotiate and to try to avoid the risks of going to a trial’.

Kershaw expands on this, explaining that while ‘some clients are keen to avoid court because of [fears about lack of privacy], some clients are quite keen to have a final hearing because they think their spouse has been engaged in some wrongdoing’.


The last few years have seen the emergence of a number of new processes in the family court, with the advent of both no-fault divorce and the one lawyer, two clients model both representative of what has been a growing trend towards alternative, non-court-based dispute resolution.

Both the unfolding worries around privacy and the ever-increasing court backlogs are factors that have been credited with driving clients away from traditional court-based solutions and towards private resolution. Cockcroft suggests that ‘we are going to see clients becoming increasingly worried about transparency and reporting’, and that ‘this will inevitably lead to parties wanting to privatise cases from the offset and an increase in arbitration’.

Pirrie notes, in reference to the ‘one lawyer, two clients’ model that, in future, a lawyer could act as a ‘lynchpin’, working in collaboration with financial planners and counsellors to approach separations as a team, adding that, more broadly, a non-court resolution system could involve ‘mediation as a foundation into which you pull in the various experts you need to deliver the answers’. He explains that taking a creative approach is ‘about breaking down the silos: instead of being guided by the structure of a process, you’re being guided by the needs that you’re presented with’.

Kershaw similarly describes the increase in ADR as being ‘about having a different tool in the toolbox, because the law in this area is not a one size fits all’, explaining that family practitioners ‘have to listen to people, have to hear what their needs are, what their position is, and then we’ve got to be bespoke about what we can offer them’.

Potanin v Potanina: Part III applications

London is increasingly referred to as the divorce capital of the world and, despite post-Brexit concerns that this status may change, its courts continue to be viewed as a key destination for high net worth divorces. The long-running case of Potanin v Potanina, in which judgment was handed down on 31 January 2024, could mark a turning point in attitudes towards so-called ‘divorce-tourism’ though.

The case revolves around the wife’s application for permission to apply under Part III of the Matrimonial and Family Proceedings Act 1984. This permission, initially contested by the husband, was eventually granted. Following their divorce, which, like the marriage itself, occurred in Russia, the wife relocated to England. In Russia she had been awarded $76.1m of her husband’s estimated net worth of $20bn, a figure she believed to be insufficient considering the marital assets.

Despite the already-agreed financial award in Russia, the court granted her permission to make an application for a financial remedy in the English courts under Part III, on the basis that there was deemed to be ‘a substantial ground for the making of an application for such an order’.

The Court of Appeal’s 2021 ruling clarified that the test for granting permission does not necessitate a high threshold but rather a ‘solid’ case, a criteria the wife was found to have met.

However, the 2024 Supreme Court judgment allowed Mr Potanin’s appeal, ruling that no ‘knockout blow’ was required in order for him to object.