Divorce, Dissolution and Separation Bill – what it means and where it is at now
On 25 February, MPs passed the new Children and Families Bill at its second reading in the House of Commons. The bill extends the statutory rights – in employment and family law – that both parents have in their children’s upbringing.
Under the bill, maternity leave – available from two weeks to 12 months following birth – can be used by the father instead of the mother, shared in blocks or taken together. Fathers have, since April, been able to share maternity leave from five months after birth. However, there has been a low take-up of this right. Time will tell whether allowing fathers to share leave earlier will make any difference. The bill also proposes extending the right to request flexible working to all employees from 2015, rather than just parents and carers, as at present.
But what about the sharing of parental responsibilities in the event of a family breakdown? The new bill provides statutory recognition that it is in the child’s interest for both parents to remain involved in the child’s life, unless the child is at risk of harm, stating, ‘the involvement of [each] parent in the life of the child concerned will further the child’s welfare’.
The bill also replaces ‘residence’ and ‘contact’ orders with a single ‘child arrangements’ order. This will set out where the children live and how much time they spend with the other parent. This is a welcome change as too often separated parents focus on whether one parent should have the label of a contact or a shared residence order, even though they have agreed the division of time.
These changes will not affect the family court’s approach, which has been that the child should sustain a relationship with both parents, although the child may spend less time with one parent. Contrary to some expectations, the bill does not refer to ‘equal division of time’ or ‘shared parenting’ following separation. However, its mention of ‘involvement’ and the removal of the residence and contact terminology should encourage shared parenting.
With increasing numbers of women in work, many fathers already share the parenting, and they would likely continue this in the event of separation. But for fathers who were the sole breadwinner with little involvement in childcare, separation often marks a significant change in their role and relationship with their children. While many fathers sadly end up having no contact with their children post-separation, others become more involved than before. Employers must be careful not to discriminate against fathers when considering flexible working requests, based on traditional gender stereotypes, particularly as the government wants to encourage shared parenting from the earliest stages of pregnancy.
The bill also addresses injustice in relation to parents who have children through a surrogate. Mothers who carry a child and give birth naturally are currently treated more favourably than mothers who use a surrogate. Unlike adoptive parents who can take extended leave, the only entitlement the intended (non-biological) parent currently has is unpaid parental leave, which is for a much shorter period than maternity leave (13 weeks, and can be capped by the employer at four weeks a year) and is dependent on the employer agreeing to the request. Under the bill, intended parents will be entitled to time off to attend two antenatal appointments (as will all parents), statutory adoption leave and pay, and flexible shared parental leave and pay.
These are all positive developments which may help to change society’s perception of traditional gender stereotypes and reduce discrimination for both genders, as maternal issues become ‘parental’ ones. Statutory changes in employment and family law to reflect developments in society should enable and encourage both parents to juggle work and children, and maintain a better work/life balance.
This article was first published in The Law Society Gazette, and has been reproduced with the kind permission of the copyright owner. This article must not be further reproduced without permission of the copyright owner or the Copyright Licensing Agency.
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