31 December 2021
Horizon scanning - what does the year ahead hold for family law?
On the 24th December 2020 I wrote about what the year ahead held for family law in 2021. You can read that article here
It is interesting to reflect on what I thought the key issues for 2021 would be and to observe at the end of 2021 that two of the items on that list will be my predicted top themes for 2022. Firstly, no fault divorce and secondly, transparency.
No fault divorce
No fault divorce had been heralded to come into force in autumn 2021. However, that has not materialised and the new date for implementation will be 6 April 2022. The current law requires a marriage to have irretrievably broken down. However, the requirement does not end there and it is necessary to also cite one of five facts in support. The five facts are:-
- That the other party has behaved in such a way that the petitioner cannot reasonably be expected to live with them;
- A period of two years separation and both parties consent to a divorce; or
- A period of five years separation (no consent required.)
Essentially, there is a requirement to "blame" the respondent to the divorce petition unless the parties are prepared to wait 2-5 years for their divorce. This is unhelpful as it starts proceedings off on the wrong foot and can cause conflict between the parties.
The Divorce Dissolution and Separation Act will officially be introduced on 6th April 2022 and will allow married couples to end their marriage without the need to rely on one of the five facts and assign blame. It will also be possible for the couple to apply for a divorce jointly, rather than one bringing the application (the petitioner) and the other responding (the respondent). It is hoped that this will make the divorce process less acrimonious and consequently that sorting out finances and children arrangements will be conducted in a less heated environment.
I heralded transparency as a key issue in 2021 and this theme will continue into 2022. In Q4 of 2021 we have seen the President of the Family Division publishing a report, "Confidence and Confidentiality: Transparency in the Family Court." The report proposes a number of reforms which my colleague Emily Foy wrote about in November. For a detailed analysis you can read her article here
In addition, in October 2021 Mr Justice Mostyn and His Honour Judge Hess launched a consultation on a proposal to introduce a Standard Reporting Permission Order ["RPO"]. This would have far reaching implications for those using the family courts. It would mean that journalists could have access to documents filed in a case containing parties' private financial and other information. Whilst they would still be subject to restrictions on what they can actually report there is a great deal of disquiet in the profession about the proposed reforms and the impact on parties’ private and family lives. This will remain a hot topic for further debate in 2022.
Cross border disputes
As a consequence of leaving the EU, the UK lost its membership of the Lugano Convention. The Lugano Convention deals with where cases should be heard when there is more than one possible jurisdiction that could hear a case. It also deals with the recognition and enforcement of judgments and therefore is important for international families. The UK applied to join the Convention in its own right but the European Commission has recommended that EU member states should block the UK from joining. This would leave the door open for disputes between the UK and the individual member states as to which country should hear a case - potentially leading to lengthy and expensive jurisdiction issues and the potential for the UK and a member state both giving judgment on the same case.
A final decision is awaited from the EU27.
The pandemic has demonstrated that remote hearings can be utilised effectively to improve efficiency and decrease costs for some family hearings. In person hearings will remain important for many types of hearing but some remote hearings are here to stay. You can read my longer article on this topic here
Alternative Dispute Resolution
Increasingly parties are looking to resolve their affairs away from the court system and are looking at alternative forums such as mediation, private financial dispute resolution hearings and arbitration. The court system is congested and it can take a long time for hearings to come on. Parties who are concerned that details of their case may enter the public arena, especially following the recent transparency review, may also choose alternative methods of dispute resolution. Whilst these alternatives are becoming increasingly popular amongst those who can afford to pay for such services there is disquiet in some quarters that this creates an unjustifiable two tier system where such alternative methods are only available to those who have the means to pay for them.
The amicable divorce?
Another possible development in this area has been raised in the Family Justice Briefing 2021 by Resolution. They have mooted the possibility of a future where parties consult with a single lawyer over their divorce, which is currently not possible for solicitors in the regulated profession. They have predicted that the family legal market may become segmented with different levels of service being offered by a more diverse range of professional advisers. With the advent of no fault divorce and the increasing appetite for the amicable divorce and “conscious uncoupling” this could be an area which develops quickly and offers clients alternatives to the current model.
A fast track for financial remedy cases?
The Farquhar Committee reported on the Financial Remedies Court in September 2021. They have made a recommendation that there should be a pilot scheme to fast track those cases where the net assets are under £250,000. If successful that number would be increased to £500,000. The fast track would see these cases dealt with within six months from Form A being issued. This move, if adopted, would hopefully lessen the burden on the courts and reduce costs for litigants with a more limited asset base.
In November 2021 the President of the Family Division issued two guidance notes – one dealing with the preparation of Witness Statements and the second dealing with the drafting of orders. The guidance sets out clear guidance on the format of these documents and requires professionals to comply with these standards. For witness statements these must be “as concise as possible” and “as a general standard……..should not exceed 15 pages in length.” With regard to orders the President is concerned that too much time is being spent on drafting orders with lengthy input from each side. In both sets of guidance the President has not yet gone so far as to issue a formal Practice Direction but has put a marker down that if the guidance is not adhered to going forward then the Family Procedure Rule Committee may have to do so. Going forward into 2022 I predict that we may see further standardisation of family procedure.
The President of the Family Division has had much to say during his tenure about the importance of wellbeing amongst family law professionals and I anticipate that this theme will continue to be important in 2022. In a recent case (E v B) the judge was highly critical of the parties’ completely inadequate time estimate which meant that the court only finished hearing the case at 6pm and had to reserve judgment, commenting that the Judge’s and Court professionals’ wellbeing should also be considered. There have been frequent reminders to solicitors about not sending emails out of hours unless urgent or likely to increase the chances of settlement. I anticipate that the court will be more likely to impose stricter controls on professionals sticking to a hearing template. We can expect further wellbeing initiatives from the President to be explored in 2022.
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