Family Law London Blog

Shared parenting legislation, aimed at strengthening relationships between parents and children after separation, could detract from children’s wellbeing, the Law Society is warning.

Responding to a Government consultation in which ministers are proposing different ways to establish the notion of “shared parenting” after separation, Law Society President John Wotton said: “Introducing a legislative presumption of shared parenting could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for ‘equal time’.

"This could undermine the Government’s drive towards mediation and out of court settlements. The Government should avoid any implication in the statute of any right to equal time with a child, or any prescription of appropriate amounts of time.

The primary focus should be on the rights and welfare of the children, not those of parents. The principle that the welfare of the child is the court’s paramount consideration should be maintained.”

The Chair of Resolution, Liz Edwards, has spoken at the fourth European Collaborative Conference in Edinburgh.

Collaborative law is a dispute resolution mechanism that allows both partners to be represented by lawyers, while meeting to receive advice and discuss solutions in the interests of the family. The process involves two clients and their lawyers attending a series of face to face meetings. Other professionals are brought into negotiations where needed.

The process can be very effective, as it allows separating couples to talk through their difficulties with the support of their lawyers, but having agreed that they will not instruct the lawyers to go to court. It can allow disputes to be resolved outside of the court room, even when mediation is not suitable.

During her speech, Liz Edwards talked the effectiveness of this method of dispute resolution and highlighted it as one of the options available for separating couples wanting to resolve their issues outside of the courtroom.

She explained that Resolution is also exploring the use of other dispute resolution methods and techniques for family disputes, including early neutral evaluation; other mediation techniques such as directive mediation; and family arbitration.

A recent poll of divorce lawyers in America has revealed a growth in the number of women paying alimony and child support over the past three years.

The survey, by the American Academy of Matrimonial Lawyers (AAML), found that 56% of respondents reported seeing an increase in the number of mothers paying child support, while 47% also note a rise in women being responsible for alimony following divorce.

Ken Altshuler, president of the AAML, commented:

"The court system always ends up reflecting changes in our society and this is certainly the case with issues regarding who pays child support and alimony. As more women achieve success on their career paths, they are also finding themselves increasingly responsible for financial obligations during and after the divorce process."

The Government has announced its intention to introduce legislation to speed up the family justice system and reduce delays in the adoption system.

The planned Children and Families Bill would also strengthen the powers of the Children’s Commissioner – to champion children’s rights and hold government to account for legislation and policy.

The key measures affecting the family justice system under the Bill include:

• Creating a time limit of six months by which care cases must be completed.
• Making it explicit that case management decisions should be made only after impacts on the child, their needs and timetable have been considered.
• Focussing the court on those issues which are essential to deciding whether to make a care order.
• Getting rid of unnecessary processes in family proceedings by removing the requirement for interim care and supervision orders to be renewed every month by the judge and instead allowing the judge to set the length and renewal requirements of interim orders for a period which he or she considers appropriate, up to the expected time limit.
• Requiring courts to have regard to the impact of delay on the child when commissioning expert evidence and whether the court can obtain information from parties already involved.
• Requiring parents in dispute to consider mediation as a means of settling that dispute rather than litigation by making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings.
• Freeing up judicial time by allowing legal advisers to process uncontested divorce applications.

Website, Netmums, has recently carried out a survey of its members to find out more about the current state of relationships in the UK and what factors can place relationships in jeopardy.

The survey found that around 50% of respondents reported their relationship to be “good” or “strong”, but 14% said their relationship was currently “rocky”. A further 25% of respondents were not sure whether they would still be with their current partner in ten years time.

Around two thirds of members polled felt that it was much harder now to maintain a relationship than it was a generation ago. Just under 40% blamed this on the fact that more mums are now going out to work.

Having children was found to put additional strain on a relationship, with around four fifths of respondents saying the resulting exhaustion had a negative effect on their relationship. Money worries and lack of time alone as a couple were also reported as pressure points.

The Institute of Family Law Arbitrators (IFLA) has held a reception to mark the launch of the new Family Law Arbitration Scheme. 

The Scheme and the IFLA is the result of collaboration between the Chartered Institute of Arbitrators (CIArb), Family Law Bar Association (FLBA), Resolution, and the Centre for Child and Family Law Reform (CCFLR).

The IFLA developed the arbitration scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is also expected to save court resources and reduce pressure on the already stretched family courts.

The scheme covers: financial disputes arising from divorce; claims on inheritance from a child, spouse etc; financial claims made in England and Wales after a divorce abroad; claims for child maintenance between unmarried parents; disputes about ownership of a property between cohabiting couples and civil partnership financial claims. Disputes will be resolved exclusively by applying the laws of England and Wales, in the same way as the Family Courts.

Lord Falconer, who chairs the IFLA, said:

“Arbitration has a long history in certain areas. For example, many commercial and construction contracts provide for dispute resolution in this way. Arbitration in family law will be another tool in the box of methods of alternative dispute resolution. At a time when there is a need to find solutions in family disputes outside the courtroom, it is a logical next step to offer arbitration as another means of doing so.”

Speaking at the 24th Resolution annual conference in Leeds, the President of the Family Division, Sir Nicholas Wall gave a strong backing to Resolution’s position that there should be legal provision for no fault divorce.

In a speech to over 300 delegates, Sir Nicholas said: “My position is very simple. I am a strong believer in marriage. But I see no good arguments against no fault divorce.”

He went on to say, “In the nineteenth century and for much of the twentieth, divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the “innocent” party. All that, I think, has gone.”

He also expressed concern that Mediation and Information Assessment Meetings are not working, observing that the government had introduced the process without making them compulsory, as this was felt inconsistent with the voluntary nature of mediation. He acknowledged that in some areas, judges are not following rules requiring them to encourage attendance at mediation. In concluding, he told practitioners that their aim “must be to encourage the court to make proper use of these powers".

Peers in the House of Lords have voted through an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which will help ensure that victims of domestic violence continue to receive legal aid on issues around divorce or separation, by extending the evidential criteria required to demonstrate that domestic violence has taken place.

The amendment was proposed by Baroness Scotland and supported by Baroness Butler-Sloss, the former President of the Family Division, among others. In one of three votes against the government on the first day of Report stage of the Bill, this amendment was carried by 238 votes to 201.

Speaking in response to the amendment, Resolution’s Chair, David Allison, said:

“We are pleased that Peers voted through an amendment which seeks to ensure victims of domestic violence continue to receive legal aid to assist in resolving issues arising on divorce or separation. The Government and MPs now need to take notice of this sensible move and uphold this important amendment when the Bill returns to the Commons.

“In addition, we were pleased to hear the Government will accept undertakings as evidence of domestic violence for the purposes of providing legal aid, regardless of what changes are made to the Bill. Many women who have been abused seek undertakings from their alleged abuser, with the oversight of the family court, as a way to protect themselves and their children, without needing to go through a traumatic trial.”

New research from dating site, ThePicnicProject.com, has found a growing number of women would rather date a mature divorced man than someone younger than themselves.

According to the survey:

• 12% of single women would rather date a divorcee than someone younger, which amounts to an estimated 655,000 single women.
• An estimated 48,000 single women in the UK admit they are actively looking for a divorced man to date.
• Around 2% of respondents (892,000) said they have recently broken up with their partner, or are in the process of breaking up with their partner.

Women cite better relationship experience as the main attraction to divorced men (12%), along with an increased likelihood that they'll be sensitive to their partner's needs (8%) and the fact they've demonstrated serious commitment in the past (7%).

A quarter of women also admit they would not be deterred by children from another relationship.

The Law Commission has recently announced that, at the request of the Ministry of Justice, it is to undertake a targeted review of two aspects of the law that entitles married couples and civil partners to claim financial provision from one another on divorce or dissolution of their partnership.

The Commission will examine the extent to which one party should be required to meet the other's needs after the relationship has ended. It will also consider how what is known as “non-matrimonial property” (acquired by either party prior to the marriage or civil partnership, or received by gift or inheritance) should be treated on divorce or dissolution.

Professor Elizabeth Cooke, the Law Commissioner with responsibility for family law, said:

“We are delighted that the Ministry of Justice has asked us to undertake this very important review. When two people bring their marriage or civil partnership to an end it is vital that the law assists them to resolve their financial arrangements as quickly and fairly as possible. The current law creates too much potential for uncertainty and for inconsistent outcomes. In particular, the extent to which one party should be required to meet the other's financial needs is far from clear. Likewise, there is uncertainty over the treatment of property brought into the relationship or inherited by one of the parties.”

A woman from Long Island appears to have made legal history by being the first person in the state to be granted a contested no-fault divorce, reports the New York Post.

Previously, in a contested divorce, the partner seeking the divorce had to claim that the breakdown of the marriage was the fault of the other partner e.g. on the grounds of adultery. A legal amendment introduced just over a year ago added a no-fault provision in an attempt to make the divorce process less acrimonious. Under this change, only one partner needed to claim that the marriage had been irretrievably broken for at least six months.

Until now, the provision had only been used in non-contested divorces, however in the case in question, a 79-year-old woman wanted to end her marriage, but her husband didn't. Based on the evidence presented, the judge agreed with the woman that the marriage was irretrievably over, and granted her the divorce despite the objections of her husband.

Justice Secretary Ken Clarke has urged separating couples to consider mediation when they separate or divorce, instead of turning to the courts.

Mediation can be a quicker, cheaper and more amicable alternative to court, where couples work through their issues in the presence of a qualified mediator to make arrangements both sides can agree with, rather than putting lawyers and a judge in charge of deciding a couple's future arrangements.

Rules introduced last year mean that separating couples now must complete a mandatory assessment to determine if mediation is a better option for them. The Government has already increased spending on mediation by two thirds, or £10 million, to £25 million each year, to allow separating couples to mediate.

Encouraging separating couples to consider mediation is one of a package of reforms introduced by the Government to encourage people and businesses to take responsibility for their own disputes, rather than turning to the courts. This includes:

• A first major overhaul of the civil justice system in 15 years, which will tackle fears that a damaging compensation culture and an unwieldy justice system is costing businesses millions of pounds and deterring deserving individuals from using the justice system. Under the proposals more people will be encouraged to use mediation instead of going to a court hearing.
• Government leading by example by signing a new Dispute Resolution Commitment which means all departments and agencies must consider using alternatives like mediation, arbitration and conciliation first before taking disputes to court. This will build on savings of more than £360m made in the last decade.
• Reforming the legal aid system, which is one of the most expensive in the world, so that courts are seen as a place of last resort, not a first choice, and more cases are resolved earlier with different approaches aimed at simpler dispute resolution.

The Ministry of Justice has published statistics on activity in the county, family, magistrates’ and Crown courts of England and Wales. The figures give a summary overview of the volume of cases dealt with by these courts over time, with statistics also broken down for the main types of case involved.

Family cases deal with issues such as parental disputes, child protection cases, divorce and separation, and cases of domestic violence. Volumes of many types of family cases have shown a fairly steady trend in recent years.

Key statistics include:

• There were 30,400 decrees absolute granted for the dissolution of marriage in the third quarter of 2011; a decrease of 1% compared to the third quarter of 2010.
• There were 5,500 domestic violence orders made in the third quarter of 2011; a drop of 14% on the 6,500 in the same period in the previous year. Domestic violence applications decreased 15% to 5,500 in the third quarter of 2011, compared with the corresponding quarter in 2010.
• On matters affecting children, there were 7,700 children involved in public law applications made in the third quarter of 2011, a 28% increase on the same period for 2010.
• There were 30,200 children involved in private law applications made in the third quarter of 2011; a 5% decrease on the third quarter of 2010. The trend in the number of children involved in private law applications has been downward since late 2009.

The relationship support charity, Relate, has seen a 116% increase since December in the number of people calling its helpline for relationship support.

Analysis of the calls received has shown that the biggest issues causing relationship breakdown were:

• Arguments  36%
• Affairs  20%
• Sex    9%
• Stress   9%
• Money   7%

The charity has also seen a 60% increase in visitors to their website.

Relate conducted a survey before Christmas and found the most common causes of fireworks over the Christmas period were identified as personality clashes (14%) and not agreeing on what to do over the break (10%). The survey also revealed that people are most likely to argue with their partner (29%) or their children (13%).

A recent bulletin from the Office for National Statistics presents annual statistics on divorces that took place in 2010 following court orders, in England and Wales. The figures show that there were 119,589 divorces in England and Wales in 2010, an increase of 4.9%.

The Law Society has welcomed the delay in implementation of new rules governing civil and family legal aid, announced by the Ministry of Justice. The announcement was made in a written statement to Parliament and moves the implementation date from the originally proposed October 2012 to April 2013. 

The charity Families Need Fathers, which provides support on shared parenting issues arising from family breakdown, has claimed that the Family Justice Review report fails to provide for children maintaining meaningful relationships with both parents and their wider family following family breakdown.

Justice Minister Jonathan Djanogly has spoken out in praise of family mediators for giving separating families the opportunity to resolve their differences without resorting to court.

Authorities in China have introduced an unusual measure to help married couples survive the “seven year itch,” reports the Telegraph.

Grant Thornton's eighth annual matrimonial survey of family lawyers has sought views on the impact of the requirement for separating couples to attend compulsory mediation.