Family law reform: the missing pieces

Family analysis: Fiona Wood, family practice group leader at Pannone part of Slater & Gordon, discusses how the recent reforms have affected her practice.

What are your views on the quantity and pace of recent reforms?

I deal mostly with divorce and its financial consequences. There have been very few recent changes in this area of law save for judicial decisions which give us guidance on interpreting and implementing the legislation. Since the House of Lords' decision in White v White [2000] 3 FCR 555, [2001] 1 All ER 1, the case law has predominantly been fine tuning how we approach financial remedy cases rather than reforming the law. I feel that the pace of reform in this area is slow.

There is still no law that deals specifically with cohabitants if their relationship ends. Claims can be made on behalf of children or under trust law in some circumstances, but there is no specific statute that deals with the end of a cohabitant's relationship in England and Wales. Scotland does have legislation which allows cohabitants to make financial claims on the breakdown of their relationship. Given that the marriage rate is in decline and the number of couples who cohabit is ever increasing, the law does not seem to be keeping up with how society is changing.

With regard to pre-nuptial agreements the Supreme Court case of Radmacher (formerly Granatino) v Granatino (pre-nuptial contract) [2010] UKSC 42, [2010] 3 FCR 583, gave us fairly strong guidance and has made the position regarding pre-nuptial agreements much clearer. Given the divorce rate, people should be able to enter into pre-nuptial agreements knowing that the terms of the agreement will take into account if their marriage does end and thus hopefully avoid lengthy and expensive litigation. It is not unreasonable for people to want certainty as to what will happen financially if their marriage ends.

From a funding point of view the withdrawal of public funding for the vast majority of divorce cases has had an impact on my work despite the fact that I do not undertake publically funded work. I have more litigants in person as opponents than I used to. Unfortunately, in my experience you are less likely to settle a case with a litigant in person than with someone who is represented. I am also concerned that untrue allegations of domestic violence are being made so that public funding can be obtained by some individuals for their divorce.

The introduction of compulsory mediation before financial remedy proceedings are issued is done with good intentions. Couples should try to mediate rather than go to court. However, not all cases are suitable for mediation and the vast majority of solicitors would advise clients to mediate if they thought that they were likely to benefit from this. I am not aware that this has led to less financial remedy applications being made.

What are your experiences from the front line?

We receive an ever-increasing amount of enquiries from cohabitants who are very frustrated by the limited claims that they can make if their relationship ends. There are many cohabitants who have lived like many married couples with the mother looking after the children and the father being the breadwinner. These women are affected very significantly if their relationship ends as they have very limited or no financial claims of their own and can only claim for their children while they are minors. Their position is in stark contrast to the financial claims that can be made by their married counterparts, with the mothers of young children often receiving the benefit of a joint lives maintenance order.

Since the position regarding pre-nuptial agreements has been clarified there have certainly been more couples entering into them before they marriage. People's attitudes towards pre-nuptial agreements have changed over recent years--no longer seeing them as unromantic and a sign that their marriage will not work.

How successful have the reforms been in achieving their objective?

With regard to financial remedy cases the discretion that the judiciary has means it is often hard to advise clients as to the likely financial settlement they will receive. While there is generally a range of what is appropriate, there are definitely some courts or even geographic areas that deal with certain things differently, especially with regard to spousal maintenance. In my experience the London courts tend to be much more generous regarding spousal maintenance both in quantum and duration than the courts in Manchester. However, there are even local differences regarding spousal maintenance with some courts or even judges being more likely to grant joint lives maintenance orders than others.

The fact that the majority of reported cases deal with assets that are greater than the parties' needs also makes advising the majority of those divorcing, who would not be considered to be 'big money' cases, more difficult.

What has all this meant for clients?

For financial remedy clients the fact that the law governing this matter is a law of discretion makes it difficult for them to be given specific advice about the likely outcome of their case should they not be able to settle matters. The fact that there is usually a range of outcomes can make it harder to settle cases, thus increasing your client's costs.

The withdrawal of public funding has in my experience led to some clients having false allegations of domestic violence made against them by spouses that use this to obtain public funding for their divorce. Also, when their spouse cannot afford legal fees and they do not qualify for public funding they are increasingly acting as litigants in person which, in my experience, is less likely to lead to a settlement.

What are your thoughts on the future shape and pace of reform?

I would like to see legislation that covers cohabiting couples if their relationship ends. I suspect this is unlikely to happen for some time due to political reasons. However, without this change we are ignoring a large number of people, given the decline in marriage and the increase in cohabitation.

What other challenges are family lawyers facing at the moment?

Clients want affordable legal costs and in particular they are looking for price certainty. Family lawyers will need to offer more fixed fee options for clients if they want to continue to attract work. Very few other areas of law charge solely on the hourly rate. Family lawyers are going to have to adapt to this going forward.

Do recent and current reforms indicate any emerging trends?

The virtual withdrawal of public funding in the vast majority of private law family cases and the introduction of compulsory mediation before court proceedings can be issued confirms the trend for less and less public money being made available for private family law disputes.

What are your predictions for future developments?

The Law Commission's report 'Matrimonial property, needs and agreements' (LNB News 27/02/2014 97) made recommendations to clarify the law of 'financial needs' on divorce or dissolution of a civil partnership and to introduce qualifying nuptial agreements in England and Wales. This clarification would be welcomed by practitioners.

Fiona Wood is a principal lawyer in the family team and specialises in financial settlements upon divorce, particularly those with complex business and farming assets. Fiona also deals with issues relating to children, cohabitation disputes, civil partnership disputes and pre-nuptial agreements. Many of her cases have an international element, her clients often having assets abroad or living abroad. She is a Resolution accredited specialist in advanced financial provision.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

 

 

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