Bonus: Courts Compared - Family Law in Australia vs the UK

In this bonus episode of This Week in Family Law, we chat to UK family lawyer Katie Phillips to compare the differences in family law between Australia and the United Kingdom. Katie describes her path to becoming a family lawyer in the UK, and reveals some key differences in de facto relationships, no-fault divorce, family violence, spousal maintenance and more.



Chapters:
0:00 - Introduction
2:08 - Family Law in Australia vs UK



Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.



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This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.




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Transcript

SPEAKER_01 0:09

Welcome to a special bonus episode of this week in Family Law. I'm Jenna Downey, Family Lawyer and Managing Director of Leap Family Law. We have a special guest with us today to talk to us about the differences of family law in England and Wales. And for our listeners, you will be familiar with family law in Australia, and I hope you'd find this conversation very interesting. Our guest speaker is Katie Phillips, who is a family lawyer who practiced in England and Wales. How are you, Katie?

SPEAKER_00 0:38

I'm really well, thank you. Thank you for having me. It's nice to be somewhere warm rather than in the middle of winter in England. So yeah, good, thank you.

SPEAKER_01 0:45

And you've been here for quite a quick whirlwind trip of about a week or up, and you're six days into that.

SPEAKER_00 0:50

Yeah, I fly home to my lunch.

SPEAKER_01 0:52

And it's been so interesting to talk to you about the differences in family law, which we will delve into shortly. But it would be helpful for our listeners to start off with to hear a little bit more about you and for you to introduce yourself.

SPEAKER_00 1:04

Yeah, so I've been working in family law for about 20 years. I started um straight out of high school. Uh so when I was about 1920, uh, and I started as a secretary, um, initially in even in the post room, um, so working out uh sort of very, very basic level. Uh, I then started working as a secretary, and over the years I trained and progressed. So in the UK we have um an education system called Silex, who are the Chartered Institute of Legal Executives, and so you can study and um and work at the same time. So the idea is it almost works like an apprenticeship, so you get the practical experience whilst also studying um alongside that. And so I qualified as a legal executive and then I cross-qualified as a solicitor. Um, so I've at my time in uh in practice, I've sort of done every job um going really, and it's it's been really fascinating, especially coming into LEAP, and I joined about six months ago, to be able to use those skills and that experience as a secretary, as a paralegal, um, to sort of help really shape the shape the technology, which is great.

SPEAKER_01 2:09

And has all your experience been in the one practice area of family law?

SPEAKER_00 2:13

Yeah, so in the UK, family law is obviously very wide, as I imagine it is here as well, but we tend to specialise in particular areas within family. So I mainly focused on financial remedy, so the financial aspect of a relationship breakdown, um, with also some children act work as well, so uh disputes between parents. Um we have a couple of other sort of distinct practice areas within family, which include care proceedings where the state may be looking at taking the children off the parents, um, international child production, um, and then cohabiting couples as well. And that tends to fall separately as well.

SPEAKER_01 2:46

And uh England and Wales, it's just a one jurisdiction, isn't it?

SPEAKER_00 2:51

Yeah.

SPEAKER_01 2:51

And then you have Scotland and Ireland, who I guess that's slightly different.

SPEAKER_00 2:57

Slightly different, but it's a it's definitely um completely different jurisdiction. Um, we have different court systems, different structures, um, documents and processes are named differently. So it's it's very different in terms of the systems, which is similar to what I found um at a family law conference, listening to how your your practice area um develops and has changed, but also how there are so many similarities, but also so many differences. Um it's it's almost like understanding the language, but a completely different dialect being spoken.

SPEAKER_01 3:27

And a topic that has come up in conversation when we've spoken about these differences is what we would refer to as de facto couples, but you would refer to as unmarried couples. Yeah, like a cohabiting couple. A cohabiting couple. And can you talk to us a little bit about what your laws are in relation to couples that are not married and living together?

SPEAKER_00 3:51

So in the UK we don't have um a common law marriage. There's no um rights that you would automatically acquire from living with somebody um in a in a effectively a common law marriage or common law relationship as outside of any property claims or outside of any children's claims. So in relation to things such as pension claims or superannuation claims, there wouldn't be any. Um any maintenance claims would only be limited to any children that those two couples had had. And any claims in relation to property um would be limited to either any property that they own jointly or any property that the parties had contributed to, either from a construct constructive or resulting trust, it wouldn't um it wouldn't automatically arise after, say, two years of being in a relationship.

SPEAKER_01 4:38

Whereas in Australia, de facto couples are provided for within our legislation to put protections in place which place them in a similar position to married couples after a period of time, or if there are um certain circumstances that have occurred throughout the relationship, even if it's shorter than the the two-year period, that generally constitutes a de facto relationship.

SPEAKER_00 5:04

In the UK, we have this misconception that you you would be a common law, um, a common law wife or husband, and that those claims would arise. And it's just not the case. There is there is nothing um available for those those couples. So to be in a cohabiting relationship for 20 years and perhaps to raise children, the end of that relationship doesn't necessarily give the the weaker financial party any claims against the other person, which I think is is um a big area for reform and the government are looking at but have historically looked at, um, but but nothing's come uh of those those considerations and they aren't necessarily looking at any specific or targeted reform to those to um to those couples at the moment.

SPEAKER_01 5:42

Did it come up a lot in practice that people would come to you and they would have lived together for quite some time and they say, What are my rights?

SPEAKER_00 5:50

Yeah, and a lot of people in the UK, uh especially England, have this um view that marriage is just a piece of paper, um, and it just simply isn't. There's a whole bundle of rights that come along with um marriage that people don't necessarily appreciate, and that's where that misconception of the common law, marriage. Um people almost feel deceived that they can have been in a relationship for so long. Um, but because they haven't got this piece of paper, as far as they're concerned, that they should be treated as a spouse. Um, but there are also couples that just want to live together and they don't necessarily want to have those claims or those rights against each other, and so they don't pull assets, they don't um perhaps sacrifice careers or or change the way that they share the parenting for the children and those parenting responsibilities, and so they maybe don't want those those rights and duties that that would perhaps come with the de facto relationship.

SPEAKER_01 6:42

And can you talk to me a little bit about same-sex couples? And I know it's l legal for same-sex couples to now be married, but before that, what was and you know, unmarried, cohabitating couples, they didn't have the same rights as a married couple, but as a same-sex couple who couldn't get married, there was obviously some issues there.

SPEAKER_00 7:06

Yeah, so so um before we introduced same-sex marriages and legalise that in the UK, uh, what we did have was um a same-sex couple could enter into a civil partnership, and you can still enter into a civil partnership, but the the rates they're being taken up are significantly lower now that obviously they can enter into a marriage. But a civil partnership um still you would go to effectively a registry office and and go through a ceremony, um, but it would give uh the couple the same rights as a as a married couple, but it is only or and is and was only available for same-sex couples.

SPEAKER_01 7:40

No fault divorce is a topic that I'm really interested to talk to you about. No-fault divorce has been in place in Australia for quite some time, many, many years. Uh, but it's only recently happened in the UK. Can you talk a little bit about that?

SPEAKER_00 7:56

So, prior to the rule changes, you had to um establish that the marriage had irretrievably broken down, but you had to then prove that based on um one of five reasons, and three of those related to being separated for two years or more. One was adultery, uh, and then the other one was the other person's unreasonable behaviour. So, within a divorce petition, you would have to make allegations against the other person that they'd acted so unreasonably that you couldn't be expected to live with them. And this isn't just, oh, they didn't do the washing up or they didn't pay much attention or sort of engage in family life. There had to be like a level of um, a level of of unreasonableness about the behaviour, that it's it's so bad that I just I just can't live with this person anymore. It can't um be sort of something trivial, or if it is trivial, it has to be a pattern of behaviour. Um the the laws obviously changed, thankfully, and in my view, it was really important because if you could get married because you loved somebody, surely you could separate from that person because you no longer loved that person. Um, they also, when they brought in the no-fought divorce changes, also radically changed how the receiving person could or the defending person could object to a divorce, and so they've really um reduced and restricted the ability for somebody to defend a divorce, which prevents people from being trapped in a marriage that they don't want to be in. And often the person who would defend a divorce would be somebody who's in a in a position of abuse, uh, and so the victim would effectively be trapped in this marriage and have to wait for either two or five years in order to divorce from that person.

SPEAKER_01 9:33

In Australia, um the divorce process is relatively simple. You a couple needs to be separated for a period of 12 months, and then an application for divorce can be made. The other party does have an opportunity to respond to that to that application if they did want to. Um, but that would be, I'm going to say, relatively rare that they would respond and the divorce wouldn't actually proceed on the basis that the parties hadn't been separated for a period of 12 months and their relationship hadn't irretrievably broken down.

SPEAKER_00 10:10

So it's slightly different in the UK in that you could, for example, have the blowout argument on a Friday and somebody could go online on the Saturday and start the divorce application. Um, but they've with the no-fault divorce, they've built in like effectively a cooling off period. So what you would do is you would apply for your divorce online, you would upload your marriage certificate, notice would then be sent to the respondent or to the to the other um person. They would then, like in in Australia, confirm that they've received it and/or said that they're in agreement to it going ahead. And then the applicant would apply for something called a conditional order, and that's similar, uh effectively a slot in the judge's diary in chambers to look at the papers and say, yes, this person is entitled to a divorce or isn't. And no one attends those hearings. And even prior to the divorce reforms, sorry, we didn't have people that needed to attend those hearings unless there was an issue in the case. Um, we then will receive that conditional order from the court, and then the person um has to wait six weeks and one day before they can apply for the final order. But our calling off period is built into that initial step. So from the point of the divorce being submitted, say on that Saturday morning, they have to wait six months before they can apply for that conditional order. So they're effectively in the sort of a holding period, but they can start the paperwork so that the idea is in the UK that we try and look at finances at the same time so that they they run along the same track at the same time.

SPEAKER_01 11:38

Um, my thoughts when I hear of no fault divorce and try sorry, when I hear of fault divorce and trying to prove fault in a relationship, my mind goes to you'd have clients or you'd even have lawyers um trying to get information or trying to get those secret photographs of someone in a relationship doing the wrong thing. Did that actually happen? Is that what you would deal with as a lawyer?

SPEAKER_00 12:05

You would hear all sorts. People come into the office and they would tell you, like, in within the first five meet five minutes of meeting you, they would tell you like the worst and the most personal and private things. And you'd think, I've just met you, like anybody, and you're telling me about like your husband's underwear or like what they left out after dinner. Um they they really would go to town on it because there was an understanding among um among the sort of delay public that actually if they didn't put enough information down that it would potentially be rejected by the court. And there are there are there was a particularly high-profile case before the changes came in where this long-suffering wife, and it was a it was an awful abuse, like it was it, but it was low-level abuse in in comparison to what some of those more unpleasant cases that we see were involving. But what this poor woman, she just, she was just miserable. Her husband was just dreadful to her, and but it wasn't one particular act or one particular incident. So when she wrote her list of unreasonable actions that her husband had had done, individually they didn't sound very much, and even collectively, she just kind of sounded a bit like a moony wife, but actually it was dreadful, and it had really got her down to the point that she was on antidepressants, she was really unhappy, she was really miserable in herself, and she just wanted freedom from him. Um, but obviously, what she went through, unfortunately for her, wasn't sufficient to meet the threshold. And her husband, as I was saying about the abuse, he he wouldn't agree to to the divorce, saying he wanted to remain married, but clearly she didn't want to be, so she was very trapped in in that that situation. Um, but yeah, people tell you all sorts of of things, and it's sometimes it's great, like the the same gossip, but the gossip that you would get, you think, oh my god, this is how do people live? Um and it really puts into perspective how boring and normal my own life is.

SPEAKER_01 13:56

And in Australia, I feel like you would still have clients come in to you and they would tell you all sorts of things. They absolutely do. Um it is at least we can have the conversation, and we've always been able to have, at least in my years of practicing, have the conversation of okay, you obviously thank you for sharing that information, but we have a no-fault jurisdiction for divorce, so there's really no point in um me including this information in um proceedings because it's just not going to be taken into account. There would be some instances where you would have clients, and it there would be some aspects that would be relevant for an affidavit in terms of property or parenting proceedings, but just in relation to a divorce, it's very, it's very straightforward, as I was saying before.

SPEAKER_00 14:50

It would very much set the tone off on like a really aggressive footing, um, because somebody would have to make some allegations. And there's always fault on both sides in a in a relationship breakdown. Often, often you find that no one has acted perfectly or that looking back on it or from an independent perspective, you think actually everyone could have maybe done a little bit better. But the relationship's broken down. And as I said, if if you can get married because you love somebody, you should be able to get divorced because you don't love that person anymore. And that doesn't necessarily, you don't have to sort of prove to somebody when you're getting married, oh I love this person for five reasons, and explain that sort of as a um and justify why it's reasonable for you to live with them. So it shouldn't be that you have to justify why it's unreasonable to live with them in in terms of a divorce. So it's obviously the reform is much better and uh and it takes a lot of that sting out and allows people to try and negotiate more amicably because you set it off on the right footing. You don't have that aggressive first letter having to set out this person's wrongdoing um in black and white, which can be really hurtful and really traumatic.

SPEAKER_01 15:51

And I heard you talk before about domestic abuse, which my understanding is that's your term for family violence. Can you talk to us a little bit about that?

SPEAKER_00 16:00

So on at the Family Law Forum, it was really interesting to listen to you or listen to the speaking, the speeches about um family violence. And initially I was expecting it to be the physical violence, but obviously as the as the day went on and the discussions developed, it was really interesting to hear that actually that encompasses all forms of domestic abuse. And I think from the public's perception, um we we moved from um using domestic violence because often there was this idea that domestic violence needed a physical bruise or a physical injury in order to satisfy that violence element. Um but actually domestic abuse covers everything, it covers coercive control, the economic abuse, the um the the really unpleasant viol uh really unpleasant abuse that comes that isn't necessarily a physical um injury because often in a family setting the violence is the physical violence is is atrocious. But actually there are there are a lot of other victims of abuse who will would see that and say, well, I haven't got a bruise, so I'm not I'm not a victim of domestic violence, um and and therefore feel like their their feelings maybe aren't validated or what they've been through or their experience isn't validated. So there was a big push and a big change of mindset in the UK a number of years ago to move away from using domestic violence.

SPEAKER_01 17:20

That specific term. Yeah, it's interesting because even though we refer to it as family violence, it does encompass everything that you've spoken about. So coercive um control, economic and financial abuse, um, emotional abuse, there's that it's quite wide-ranging in terms of what it does cover. So it seems like it is the same thing, but at the same time just different terminology being used.

SPEAKER_00 17:46

Yeah. And I found that a lot, there's a lot of similar approaches, but that we're using different terms. And um it's uh yeah, but it's it's really interesting that the support networks in the UK have sort of came together a few years ago to really make that push away from the term violence being being used. So it will be interesting to see if Australia follows suit.

SPEAKER_01 18:06

And I understand uh from speaking to you before spousal maintenance, that is quite different in England and Wales and what we experience in Australia.

SPEAKER_00 18:15

Yeah, so we we've um there's been a big change in the last few years in terms of attitudes both from the court but also from clients. So spousal maintenance is assessed in a very similar way to to it um to how it is here. You go through the process to see what the the needs are, other what the reasonable needs are, what the income is of that individual, what the income could be of that individual, if, for example, they've left their job and are purposefully unemployed. Um, and then also you look at the potential of the paying party, what their outgoings are, and have a look at sort of any any shortfalls or any adjustments that may be able to be made. Um, and then it is an assessment process. But we have um what may be a different set of outgoings on an interim basis as to what may be a spousal maintenance assessment at a final hearing, because the idea of interim spousal maintenance is that it's enough to get that person through to a final hearing or the final conclusion of a case. Um, but the the the longer term maintenance claims, we we call them periodical payments, but they also look at um at sort of how how that person's going to live post-operation. So it may be that actually the periodical payments are dependent on the size of the lump sum the person may receive, because that may then determine the level of the mortgage that they have to pay. And so they they often can change after the set of proceedings have concluded. Um, but also there's a big, big push that the maintenance should be for a reasonably shortish period rather than a what we used to call a joint lives maintenance order, um, which people used to refer to as being a meal ticket for life. So it would sort of it would it would go into to pension age.

unknown 19:53

Wow.

SPEAKER_01 19:53

What what what would you see as the typical average length of time that you would have a spousal maintenance order for continuing post final property settlement?

SPEAKER_00 20:03

In practice, it often depended on the age of the children and the stage of their education. If they weren't yet a primary school, there would often be a a staged approach or perhaps a reducing amount so that it would allow the receiving person to re-establish themselves or to get back into a working environment because it doesn't necessarily happen overnight and it also allows the person to then rebuild their career. But there was a big uh a big big change from both the paying and the receiving parties that actually they should roll it up and receive a lump sum instead in lieu of maintenance. We call it capitalised maintenance. So instead of having, say, 600 pounds per month for the next three years, it would be rolled up in a lump sum paid as a capitalized sum as part of the settlement, because that then allowed everybody to move on and allow us to have a clean break, a full clean break for the family, so that there was a severing of those financial claims going forward. And if the person that was to receive the spousal maintenance met somebody and moved in with somebody, then they didn't have the risk that that maintenance would end. Um, but likewise they had the security that they knew that money was going to be there, regardless of the paying party's position, whether they decided to stop paying it, whether they lost their job, they had that security and they could then dip into that fantasm when they needed it.

SPEAKER_01 21:19

Most uh spousal maintenance orders in Australia would be made on an interim basis until such time as a final property settlement is made, which there are definitely similarities there in terms of what you're talking about. In terms of ongoing beyond that, if an order was made, it would be for generally quite a short period just to enable the person in need of financial assistance to get back on their feet. Thank you, Katie, so much for this discussion. I know our viewers would be very interested in hearing this and they would have found it really informative. We've loved being in your ears for this bonus episode. Please join us for next week's episode, which drops on Monday.