The new year always sees a flurry of prediction pieces, however now the dust has settled on January and as we know a bit more about the likely impact of Brexit and the shape of a few key cases, we can take a more informed view of how 2017 might shape up for family lawyers.
Arbitration is already a well-established method of resolving financial issues during a divorce or separation and 2016 saw the introduction of arbitration as a process for assisting in matters involving children. Arbitration has been developed to try and help resolve disputes quicker, in confidence and in a more flexible, cheaper and less formal way than if matters are taken through the court system. As awareness of arbitration as a method to resolve matters increases it is likely that 2017 will see this model being used more frequently.
The court fee for a divorce is currently £550 and there are rumours that this may increase in 2017. It is estimated that the average cost to the public purse of a divorce is about £270, but more is charged as it is based on a policy of enhanced fees looking at the court structure as a whole. Bearing in mind if you want to legally end a marriage the only way you can do this is by going to the court, the court system has the monopoly. Many question whether it is fair for families, at one of the most stressful times in their life, to be subsidising the court system.
There are plans for a pilot scheme to allow divorce proceedings to be issued and dealt with online as an alternative to the court, in a move to save time and paperwork, modernising the divorce process. This could also open the way for the abolition of fault based grounds for ending a marriage because by reducing the conflict of family breakdown it will make the administrative process around it more likely to succeed online.
No fault divorce
At the moment, a divorce can only be granted if a person can prove that their marriage has irretrievably broken down, citing one of five reasons: adultery, unreasonable behaviour, desertion, two years’ separation with the consent of both spouses, or five years’ separation without mutual consent. This can create acrimony from the outset and over complicates an already stressful life event. There have been attempts to change the law through a private member’s bill and at the end of 2016 Resolution organised for over 150 family justice professionals to go to Parliament to meet with their local MPs to lobby the government for change. The campaign will hopefully gather further momentum in 2017 to end the blame game.
There is currently a pilot being run by the Ministry of Justice to introduce settlement conferences into court cases where issues in relation to children are being determined. The settlement conference allows the parties in the proceedings to speak informally to a Judge to try and resolve issues without the need for a full trial. The judge tries to clarify information, facilitate discussion, analyse issues and promote understanding between the parties with a view to helping identify solutions. If successful, legislation is likely to be passed to introduce the option of a settlement conference into all court proceedings for issues involving children.
Even though the referendum was some time ago now no one knows for sure what will happen in international divorce cases when the UK leaves the EU. Whilst the EU has a limited role in family law matters, as each individual member state has its own rules, it does promote judicial co-operation in family law matters which have cross border implications. There are a number of EU regulations and international conventions which may either no longer apply or will have to be re-negotiated over time. For the time being the existing EU regulations remain in force in relation to family law, and they are likely to do so until at least 2019. However, couples who are currently involved in or thinking about separating who have an international element to their case will need to bear in mind the potential difficulties that the UK’s withdrawal from the EU may cause and seek expert legal advice from a specialist family lawyer at the earliest opportunity.
Clarification of the definition of “needs”
When working out how assets should be divided following the breakdown of a marriage ‘needs’ have to be quantified. This can be very difficult to determine and has to be done within the context of the particular family, their resources and their standard of living. In 2016 the Family Justice Council issued Guidance on Financial Needs on Divorce, which has provided a helpful analysis and summaries of the relevant cases. It is hoped that this will mean that from now on there will be more clarity and consistency of approach when it comes to determining needs.
Cross examination by alleged perpetrators
Calls are being made for the government to introduce legalisation as a matter of priority to ban alleged perpetrators of domestic abuse cross-examining their victims within family court proceedings. The legal profession has been raising this issue for sometime now and continues to press for reform to the way in which vulnerable people give evidence in family proceedings. MPs are now also demanding review of the way the court system operates. Peter Kyle, Labour MP for Hove and Portslade, has been reported to have said that the current situation amounts to the “abuse and brutalisation” of victims by the legal system and that people need to they need to know in advance that the system is there to look out and protect their interests.
A couple of key cases to watch out for
- Gray v Work: This is a case where a millionaire is seeking a greater share of assets in divorce because he is a “genius” and therefore has made a “special contribution” to the family’s fortune. The Court of Appeal is expected to consider the case at a hearing in London in February.
- Quan v Bray: This is another case due to be heard early this year by the Court of Appeal. The decision should provide further clarity on the issue of nuptial settlements. In this case the vast majority of the spouses’ assets are held on trust for a charity. The wife argues that the trust was nuptial and so could be varied by the court in order to provide for her, however the husband argues that the trust is not nuptial and the assets were always, and should continue to be, preserved for the charity.
Against the backdrop of the above, there are two additional themes that have the potential to bring significant change in the next 12 months.
Firstly, we are seeing continued innovation in the family law space which is opening up exciting opportunities clients and firms alike. Family Law Partners is one of the firms leading the charge in this respect, having secured funding from the Government innovation agency, Innovate UK, for a knowledge transfer partnership with the University of Brighton to develop the application of Artificial Intelligence to support family law cases. Here my colleague Alan Larkin talks about why innovation matters to us. With increasing numbers of firms investing in technology and thinking differently about the provision of services, exciting times are ahead.
In the same way that technological innovation has the potential to create greater levels of value, choice and service for clients, regulatory changes are seeking to have the same effect. The Solicitors’ Regulation Authority’s stated intention, subject to a consultation exercise in the Summer, is to compel firms to publish price transparency information and performance benchmarking data on their websites. The intention is a positive one which we welcome although there are legitimate concerns that the data will be too crude to fully inform and empower clients when they seek to instruct the ‘right’ solicitor for them.