England v Wales: divorced but not separated

12th June 2020

The First Minister for Wales Mark Drakeford’s demarcation of the Welsh response to Covid-19 from that of central government in England demonstrates some of the powers devolution has brought to Wales and what the divide of the River Severn now means, including who you can meet up with and where, whether your children may return to school, even whether you can play a game of tennis!

As yet, those powers do not extend as far as the justice system. The Justice Minister (Chris Phelp) has reiterated that the government has no plans to adopt the recommendations for a separate Welsh jurisdiction, despite an independent report in 2019 by the former Lord Chief Justice (Lord Thomas of Cwmgiedd) that the country should take full control of its justice system.

In my 40 years of experience in family law I have found that the cultural divide in family law between England and Wales is enormous. Few people cross the border to resolve their family problems and of those that do, the usual explanation given is that of ‘privacy’.  I have dealt with a number of divorce and financial remedy cases where the reason given for coming to, say, Cardiff rather than Bristol was exactly that.

Even taking account of the fact that most family problems are resolved ‘locally’, the divide between England and Wales is greater than in most regions although the same legal principles apply in the regions on either side of the River Severn and the government has said that this will remain so.

In terms of the impact of Covid-19 on family law the following applies:

  • Arrangements concerning children – on 23 March 2020, the government published full guidance on staying at home and away from others, which clarified that, where parents do not live in the same household, children under 18 can be moved between their parents’ homes. Further clarification was given by the President of the Family Division and Head of Family Justice, Sir Andrew Macfarlane, which can be seen in full here.
  • Cafcass and Cafcass Cymru (the Children and Family Court Advisory and Support Service) continue to work remotely.
  • The divorce and financial remedy courts are still operating, although most court hearings will be held remotely by telephone or a video platform such as Zoom. You can still apply for a divorce and financial remedy order. The courts will also accommodate emergency applications for injunctions (such as non-molestation orders and orders freezing financial assets).
  • Mediation is being held, again, remotely using video platforms.
  • Private financial dispute resolution hearings (FDRs) can be conducted by legal professionals to help move financial disputes (arising from divorce or separation) forward where there may otherwise be a delay in waiting for a court hearing date. These can be highly effective and, although initially expensive, cost effective in the long run if they help avoid lengthy court proceedings.
  • Domestic abuse – the government has published specific guidance for victims of domestic abuse and the ‘Make Yourself Heard’ campaign by pressing ‘55’ on a call to ‘999’.

For more information on any of the issues raised above please contact the Family Law team at Harrison Clark Rickerbys Cardiff office at [email protected], [email protected] or [email protected] or on 0330 1072964.

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