Insights

Our thoughts on the latest developments in our specialist sectors and services.

Family law: trends for the next 12 months

19 July 2018

One of our Family specialists, Alex Ward, shares what he views will be the top three trends in Family law for the next 12 months.

Blame game

The campaign for ‘no-blame’ divorces is gathering momentum. There is a groundswell of professional support for such a move.

As it stands, there is only one legal ground for divorce: the irretrievable breakdown of the marriage. This has to be evidenced by one of five facts. Three of these attach blame: adultery; desertion; and unreasonable behaviour.

The other two require separation: two years with the parties’ mutual consent or five years without it.

The most commonly used ‘fact’ is ‘unreasonable behaviour.’ Examples are listed in the divorce petition. This can add fuel to the fire – at a time when emotions may already be running understandably high. This in turn can undermine negotiations regarding the finances and children arrangements.

It can also cause clients public embarrassment.

Most of the documents in divorces are private. But the press can get hold of the decree nisi, which states which of the parties behaved ‘unreasonably.’

The press can also attend hearings in situations where a divorce is defended. Though rare, these hearings tend to be highly charged. There’s no getting away from the gory details.

Maintenance moves

London’s days as the ‘divorce capital of the world’ could be numbered.

Reflecting the prevalence in society of dual income families, there is increasing judicial support for maintenance to be restorative only. With no more ‘meal-tickets for life.’

This means we can help clients who are already paying maintenance. Depending on the facts, we can get that maintenance reduced. Or even stopped.

This said, England and Wales is still a generous jurisdiction, which is why pre-nuptial agreements are a must.

Private FDRs

There are three main court stages in financial proceedings.

The FDR (or ‘Financial Dispute Resolution Hearing’) is the second stage. It’s a judge-led mediation, and most cases settle at (or soon after) the FDR. But FDRs have their limitations.

Increasingly we are ‘going private.’

The family courts are incredibly congested. Judges also tend to specialise in either finances or children issues; very rarely both. This leads to four possible disadvantages:

  1. Delay – it can take six months or more from filing your application for financial relief to the FDR;
  2. Insufficient time – the standard time slot for FDRs is just an hour;
  3. Insufficient prep – judges deal with multiple FDRs each day. They are stretched; and
  4. Expertise – you might be assigned a judge whose specialises in children – not in finances.

With Private FDRs we can offer our clients a bespoke service. We get to choose the ‘judge’ (an esteemed barrister or High Court judge) and the date. We also get that judge to ourselves – for as long as it takes on the day. Furthermore we get to choose the venue. This means negotiating in a less stressful environment to court buildings. At the same time we can better protect our clients from the prying eyes of the press.

If you would like further advice on any of the above issues please contact a member of our Family team.

You can also read partner Mark Irving’s views on maintenance awards for spouses on divorce in an article for the FT Adviser here.

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