Some Thoughts on Possible Structural and Resource Issues for the Financial Remedies Court Arising Out of the Government’s Approach to Reform of Financial Remedies Law in Their Paper ‘A Fairer End to Relationships’

1.⁠ The consultation period for responding to the government’s white paper ends on 14 August 2026 and it is anticipated that judges with a particular interest in financial remedies will be responding individually and collectively both to the broad proposals and to some of its detailed parts. The general view of the body of judges is likely to be broadly to welcome the overall scheme of the reforms, though not all the details, in particular judges are generally convinced of the injustice of there being currently no available financial remedies for separating cohabitants.

2.⁠ The purpose of this paper is not to comment on the merits of the reforms themselves but to make some observations on the possible structural and resource issues for the Financial Remedies Court (FRC) which may arise out of the anticipated legislation which may emerge from the suggested reforms. The comments also relate to the separate, but linked, government published paper Regulatory Impact Assessment on the Cohabitation and Financial Remedies Reform Consultation.

3.⁠ This paper refers to the two government papers as ‘the consultation paper’ and ‘the impacts paper’.

4.⁠ The steer in the consultation paper appears to be towards what are called FR Reform Option 1a (which is codification plus reforms to the law on nuptial agreements but not lowering the bar on conduct) or Option 3a (which is codification plus reforms to the law on nuptial agreements and lowering the bar on conduct).

5.⁠ The steer in the consultation paper appears to be towards what are called Cohabitation Reform Option 1b (the needs model without any lowering of the bar on conduct) or Option 3b (the needs model with a lowering of the bar on conduct equivalent to Option 3a).

6.⁠ These are the preferred options, though the consultation paper expresses itself neutral, or at least expresses no preference, on the issue of whether there should be a lowering of the bar on conduct issues.

7.⁠ From the perspective of the FRC, a number of important issues would arise out of the implementation of the preferred options.

8.⁠ Neither the consultation paper nor the impacts paper (perhaps surprisingly) make any specific reference to the FRC or its structure and resources or sitting day requirements, but it is assumed for the purposes of this paper that any litigation arising from the new rights given to separating cohabitants would be dealt with in the FRC by FRC-ticketed judges, such that FRC sitting day requirements are an essential part of the financial cost of these reforms.

9.⁠ Since these proposals represent a rare opportunity to engage in statutory change in this area of law, this reform also provides the opportunity to gather together the range of financial disputes relating to families suffering separation and bereavement under one administrative head, i.e. within the FRC. It appears to have been a drafting omission in the legislation which led to the creation of the family court in 2014 that family-related claims under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A) were excluded from the family courts (and thus, when it later came into being, the FRC). Very small amendments in s 23 of TLATA and s 25 of I(PFD)A would correct this anomaly. The 2014 drafting omission creates quite difficult logistical problems where, for example, there are linked applications by a cohabitant under TLATA and Children Act 1989, Schedule 1, particularly in those family courts which do not have a co-existent civil jurisdiction. This anomaly would surely raise its head again with greater regularity where cohabitants were simultaneously pursuing claims under TLATA and the new ‘cohabitants’ rights and possibly also claims under Children Act 1989, Schedule 1 and it would be unfortunate if the opportunity of statutory change was not taken now to correct the 2014 error.[[1]]

10.⁠ Further, I(PFD)A claims (particularly those concerning a surviving widow) logically should be heard by the FRC as the issues arising, most obviously the assessment of needs in a family context, very much match the issues in the existing cases within the FRC. This will also be true of cohabitants’ claims on bereavement if the reforms are implemented.

11.⁠ Correcting the 2014 drafting omissions was strongly recommended by the Briggs Report on Civil Reform as long ago as 2016 and has been strongly supported by successive Presidents of the Family Division, yet no opportunity for statutory change has presented itself in the meantime. This is surely the moment to correct the previous drafting omissions. This change would, of course, result in some switch in sitting day resources from the civil courts to the FRC, but should not have any overall impact on resources; but these changes would make sound sense and the administrative efficiency of having all these claims under one administrative head is obvious.

12.⁠ Putting the above changes to one side, and turning specifically to the reforms proposed in the government’s consultation paper, it is surely right to comment that a proper and robust analysis needs to be carried out to ensure that any additional costs (in terms of FRC sitting day requirements and FRC administrative resources) are identified and funded to deal with an increase in caseloads and the length of cases arising from the consultation paper reforms. While there may well be significant non-monetised social and welfare benefits arising from the reforms, it is surely right that the resource implications need to be considered in the context of an assessment of the reforms overall.

13.⁠ So, what does the impacts paper say about this?

14.⁠ The essential claim in the impacts paper is that if Options 3a and 3b are introduced then the savings resulting from the clarity arising from the codification of financial remedies law will be significantly greater than the additional costs resulting from the additional sitting days caused by lowering the bar on conduct and dealing with the entirety of claims made by separating cohabitants with their new rights. While this may be a convenient view to hold for those promoting the reforms, it seems unlikely that this would be the result of a proper, robust and wholly objective financial analysis of the reforms and the impacts paper gives us only the most superficial and unsatisfactory analysis to reach this conclusion.

15.⁠ The consultation paper is short on details of what a codification of financial remedies law in one document would look like; but if it in reality (as seems to be the plan) goes no further than setting out in one fairly succinct document some guiding principles then, although arguably having the benefit of more transparency, it is quite difficult to see how and why any savings would arise from that. The case law at present already serves that purpose in terms of setting out guiding principles, and as anybody practising in this area of law knows, the arguments which lead to days in court are not often about the guiding principles themselves, but much more often about applying those principles to the multiplicity of factual details and factual perceptions which exist in real people’s lives. A prudent and objective observer would and should be very cautious about claiming that codification would lead to any or any significant savings. Indeed, it could reasonably and powerfully be argued that the very process of codification would lead to more litigation, at least for a period, as lawyers are likely to seek inventive ways to interpret nuances in the codification document to the benefit of their clients.

16.⁠ Against the above, most family law judges (who are very familiar with dealing with conduct and domestic abuse arguments on the front line) take the view that lowering the bar on conduct arguments, in particular introducing a financial penalty for proven domestic abuse allegations in financial remedies cases, would lead to a very significant increase in the length of individual cases and the non-settlement of cases with a commensurate increase in FRC sitting day requirements. Again, there may be non-monetised social and welfare benefits resulting from such a change – that is a political judgment for politicians to make – but there can be little doubt that this would come at a considerable cost in terms of FRC sitting day requirements.

17.⁠ Also against the above, the introduction of financial remedies for separating cohabitants, whose rights have hitherto been very limited, will inevitably lead to a substantial increase of case load for the FRC. According to ONS statistics for 2026 there are currently approximately 13 million married couples and approximately 3.5 million cohabiting couples in the UK. Thus, the changes would make available a financial remedies claim on separation to 16.5 million couples rather than 13 million couples, an increase of 27%. Currently, the divorcing population produces each year about 35,000 to 40,000 consented case applications[[2]] and about 13,000 contested case applications[[3]] within the FRC each year. It is reasonable and prudent to assume that the separating non-married couples would produce a proportionate case load for the FRC – that would be about 9,400 to 10,800 consented case applications and about 3,500 contested case applications. The impacts paper suggests the figures for Option 3b would be about 4,500 to 5,000 consent case applications and about 1,950 contested case applications. This seems likely to be a significant underestimate. Again, there may be some obvious non-monetised social, welfare and justice benefits resulting from these reforms, but there can be little doubt that this would come at a considerable cost in terms of financial remedies sitting day requirements.

18.⁠ The experience of FRC judges is that where insufficient resources are made available in terms of administrative support and sitting day requirements, this creates real problems for litigation timescales and creates its own injustice. It is suggested that a more thorough, more robust and properly objective analysis of the likely cost of these reforms should be carried out before any decisions are made so that the reforms can be approached with fully open eyes in terms of their financial costs. The reforms may well have wider benefits which make them objectively attractive; but turning a blind eye to the consequential costs cannot be right or sensible. If the reforms do proceed, then there will be significant financial and resource implications for the FRC and a proper level of resources will be required to deliver them and this fact needs to be properly addressed.

HHJ Edward Hess
Deputy National Lead Judge of the FRC
Lead Judge of the London FRC
July 2026

[[1]]: These ideas were dealt with in more detail in ‘The Financial Remedies Court: A New Horizon’ by Rhys Taylor and Professor Emma Hitchings [2025] FRJ 225.

[[2]]: The figure for the 2025 calendar year was 35,670.

[[3]]: The figure for the year ending 30 June 2026 is 13,220.