Divorce and family law – stormy year ahead

With the significant planned changes expected to come in with regard to divorce and family law next April, and with the ongoing draft legislation expected as a result of the Family Justice Review, the next 12 months looks like being a tough one for anyone involved in divorce or family law – whether as someone going through divorce, as a divorce solicitor or as an employee of the family courts.

The government are determined to press ahead with numerous and radical changes – and many of them are due to come into effect at the same time, or are likely to be in effect soon afterwards. It gives little time for many of these radical changes to bed in, and concerns are being raised at how the system will cope with such radical alteration taking place in such a short period of time.

What are the changes? Amongst the most significant proposals on the table are the following

• Legal aid – with certain exemptions largely based around domestic violence, legal aid is withdrawn entirely from divorce work next April. Whilst this is unlikely to affect the rate of divorce much, it does raise a number of questions. Whilst some of those currently eligible for legal aid will, no doubt, be able to raise the cash to pay for their own divorce and privately [e.g. wives with husbands on reasonable salaries can apply for maintenance to meet their own legal costs in the interim, and couples with equity in their property are likely to also be able to raise finance] what will happen to those thousands of couples who can’t afford divorce solicitors – they will have to run their divorce themselves. Expect massive court delays as more and more people clog up the system with unnecessary or incorrect applications and as judges and court staff spend far more time explaining the law and procedure to unrepresented individuals. That’s not to mention the fact that, as any family lawyer knows, unrepresented clients in court almost inevitably involve far longer court hearing – with judges falling over backwards to make sure such unrepresented people are not disadvantaged.

• Court cutbacks – it doesn’t help that staffing at the court service has been cut by 2,500 already in the last 12 months. Opening times for the in court counter service, which is often been an incredibly useful way of helping those who are without solicitors find their way through the legal minefield, will be cut – counters will only open between 10 AM and 2 PM every day for “urgent and unavoidable work only”.

• The forthcoming Law Commission report may deal with a number of significant changes – already there has been consultation on the enforceability of pre-and post-nuptial agreements – some experts expect the draft bill on these agreements as soon as 2013.

• Recently published legislation resulting from the Family Justice Review is likely to make the Mediation Information and Assessment Meetings (known as MIAMs ] compulsory for anyone going through a relationship based financial or child related dispute. It’s no secret that as a firm we are big fans of family mediation – two of our lawyers are jointly qualified as family mediators. However it’s also perfectly clear that mediation only works for those people who are prepared to compromise, be reasonable and work hard to get a settlement that is acceptable to both parties – sadly many people don’t share this view and still see any family related dispute as a divorce – mediation for them is wholly inappropriate and will simply fail.

• Further proposals from the Family Justice Review include the idea of shared parenting and the possibility of somehow beefing up sanctions against those parents who refuse to comply with court orders regarding children.

• Further proposals for reform have been set out in the government’s paper “Supporting separated families; securing children’s futures”. These include introducing a new child maintenance service and compelling parents planning on using the service to pay both fee for the application and collection.

• The introduction of a new single Family Court – replacing the two-tiered Magistrates/County Court system used currently.

There are undoubtedly some very good ideas hidden in these proposals, as well as some rotten and wholly impractical ones [automatic shared parenting, while great in principle is surely all about giving parents rights over their children rather than doing what’s right for individual children]. But introducing them all within a short period – sounds like a recipe for disaster to me. Let’s hope I’m wrong.