Most marriage vows refer to ‘til death do us part’ but sometimes they barely last past the honeymoon (Britney famously had her first marriage annulled after just 55 hours).
So, as the press start to claim that the infamous Mrs Hailey Bieber (nee Baldwin) has called in divorce lawyers after just six months of marriage to Justin, I started to think about the issues people face that want to divorce so soon after the big day.
Interestingly, if the couple were to commence divorce proceedings in the UK, the first stumbling block would be the fact that they have only been married for 6 months.
In the UK, you must be married for at least 1 year before you can file a divorce petition. The only option you have prior to that is an annulment and there are only a handful of scenarios where that would be applicable. For example, Hailey would have to prove that one of them did not consent to the marriage, for example due to duress, or that one of them was suffering from a mental disorder or venereal disease, or that the marriage had never been consummated.
The length of a marriage is an important factor in any divorce proceedings and this would be something to consider when looking at whether there should be any sort of financial order in this case.
In this situation, the couple are both celebrities and no doubt have their own significant personal wealth. It is highly likely that they may have prenuptial agreements, particularly as these are very popular in the United States. However, if they have not and were getting divorced in the UK, then the Court has a wide discretion when deciding how to divide their assets, though inevitably arguments over assets being held pre-marriage would carry significant weight.
Consideration would be given to the fact that they do not have any children together and they are both financially independent. If Hailey was not a global supermodel and had a very young baby, then she could be looking at a reasonable financial settlement to help her with her future as a single mother.
Another factor may be that she made financial sacrifices by entering the marriage and may need to be compensated for the same. This compensation does not necessarily have to mirror exactly what was sacrificed prior to or during the marriage as ultimately, they are both adults and both decided to enter a relationship with each other. However, if it was difficult for Hailey to move forward on her own then it could be reasonable for her to have some form of financial support in the short term.
If you have recently married and are concerned that you have made a mistake, I would recommend that you seek legal advice about what the consequences would be if you start divorce proceedings.
Alternatively, you can contact Relate, a charity specifically designed to assist couples that are going through relationship difficulties.
The Nuffield Foundation has published a report presenting the findings of a project to explore the legal and procedural details of the divorce process in selected other jurisdictions. The report is designed to inform the current Ministry of Justice (‘MoJ’) consultation on reform of the ground for divorce and dissolution in England & Wales.
As the report explains, the MoJ is proposing that the sole ground for divorce of irretrievable breakdown should be evidenced by a new notification system or waiting period. The report examines what lessons can be drawn from the experience of notification and/or separation-based divorce in eight comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.
Having never really studied divorce law in other jurisdictions, I find the report quite fascinating, both in terms of how similar different jurisdictions are in some respects, and how different they are in other respects. Overall, though, the report makes the important finding that jurisdictions are converging “towards recognition that a divorce must be granted where one or both parties insists that the marriage is over and away from scrutiny of a decision to divorce according to objective standards.” This is surely excellent news for the people of the countries/states concerned and, as the report says, indicates that the MoJ’s proposal to remove fault is fully consistent with international trends.
The report looks at various aspects of divorce law and procedure in the various jurisdictions, ranging from the grounds of divorce, through the different parts of the process, to whether the divorce can be opposed, and a number of other details.
The centrepiece of the report is a tabular summary of the law and procedure in England and Wales (at present) and the eight other jurisdictions. This sets out in an easy to read form all of the aspects mentioned above. To pick out a couple of the interesting facts at random, we find that most of the other jurisdictions have not had major reforms for almost as long as we have here (suggesting that we are rather behind the times), that Spain, Sweden and Finland do not have any grounds for divorce (and no available defences), and that in all countries/states save for England and Wales and Germany the court must approve or determine child arrangements before the divorce goes through (this was also the case here until 2014).
The report then examines various aspects of the divorce law and procedure in the different jurisdictions, and sets out possible implications for the MoJ to consider when deciding exactly what form our new divorce system should take.
I won’t comment on all of the points here, as I have not given detailed consideration to all of the various details of any new system. However, I do find the following points interesting:
That there is a trend away from requiring any ground for divorce at all. Here, it is expected that we will keep irretrievable breakdown as the ground for divorce, but do we even need that? As the report says, in Spain, Sweden and Finland divorce is a right and, in the absence of a divorce ground, no proof is required.
Most other countries do not have our two-part divorce process (decree nisi and decree absolute). Do we really need this?
Our proposed six month notification period is in line with many other jurisdictions. As I have mentioned before, I wonder whether that is too long, although I don’t expect the MoJ/government to agree to a shorter period.
The report says that in some jurisdictions defence of the marriage remains possible in theory, but is futile in practice. Quite. No jurisdiction has a specific provision to allow a respondent to register their wish to remain married. This must be the right way.
Lastly, the report finds that a specific provision on the minimum duration of marriage is relatively unusual. Here, we have a bar on divorce petitions within one year of the marriage, and the government is proposing that that be kept. But is it really necessary? Clearly, other countries/states think not. After all, it is quite possible (and not unheard of) for the parties to a marriage to realise very soon after the wedding that they have made a mistake. Why should they be forced to lose one year of their lives because of a mistake?
Ok, I’ll leave it there. For further details, you can find the full report here.
Divorce and separation often focus on the division of assets: who gets the house? Maintenance for the children? However, many couples must also decide what happens to the debts, in joint and sole names, and ask the question: will divorce affect my credit rating?
Changing the legal status of your relationship does not affect your credit score directly, whether you are moving in, getting married, forming a civil partnership, separating or getting divorced.
However, it is likely that during your relationship you have taken out joint credit, be it a mortgage, a bank account with an overdraft facility, names on a utility bill or a loan. And if this is the case, your credit ratings will affect each other.
When you and your partner apply for credit together the lender will look at both of your credit files and scores. This is because with any joint credit each of you is legally responsible for all the debt and all the payments. So, if one of you cannot keep up with your share of the debt, the other is legally obliged to make the payments.
The shared debt will show up on your credit report (it is usually under the heading financial associations or financial connections).
Once listed, it may mean that in the future their credit report will also be taken into consideration on any future applications you make, even if it is in your sole name. And the association will remain if you have those joint debts. Getting divorced or separating will make no difference.
What can you do?
Until all joint debts are paid and accounts are closed you’re still financially linked, but you do have a couple of options:
Split the debt
If possible, sit down with your ex and get a clear picture of what you owe and who will take responsibility for what. You can then have the joint accounts transferred to the person who is solely responsible for the payments.
Look at your property
Often the biggest asset, you may need to refinance to remove one name from the mortgage or sell the home and divide the proceeds.
Keeping paying the bills
Money is likely to be tight as you separate but keep paying the bills. If you don’t have enough money to keep up payments on your loan(s), credit card(s), bills and mortgage or rent, it’s important to prioritise which you can pay. Don’t ignore your debt problems. They will not go away.
Once you no longer share joint finances you can ask credit reference agencies to remove them from your credit report, this is known as a notice of disassociation. Be prepared to provide proof that your financial connection has ended.
Get in touch
If you are going through a divorce or separation and have debt concerns our highly experienced family lawyers can help. You can get in touch here.
It’s not an unusual scenario: a party to financial remedy proceedings does not have the means to pay a lump sum to the other party, but has the ‘benefit’ of funds belonging to a third party. In such circumstances, it can obviously be tempting to seek an order that the third party pay the lump sum. However, as we shall see, this is simply not possible, as the court has no power to order lump sum payments against third parties.
The situation arose in the recent case Wodehouse v Wodehouse. The facts of the case, very briefly, were that the parties were married in 1992, the marriage came to an end in 2011, and the parties were divorced in 2015.
When the financial remedies claim went before the Deputy District Judge the parties were, to use the words of Lady Justice King, “in a parlous state financially.” The wife had had two hip replacement operations and was unable to carry on her previous employment, and the husband had just been made bankrupt (for the second time) and was also unable to work. There were no assets of any significant value save for the husband’s police pension, and the wife was responsible for a £97,000 debt, being the negative equity on the former matrimonial home when it was repossessed by the mortgagee (the husband was not liable for his share of the mortgage shortfall because of his bankruptcy).
The husband, however, was a beneficiary under the terms of two family Trusts (he is one of four sons of the late John Wodehouse, the 4th Earl of Kimberley). Without going into the details (OK, simplifying things quite considerably!), the Deputy District Judge ordered the husband to pay to the wife a lump sum of £138,500, essentially representing debts that the husband had accrued during the marriage, in default of which he ordered that one of the Trusts should pay the lump sum (or the balance of it), from the husband’s interest in the Trust. The husband appealed against this order (it is not clear whether the Trust also appealed, but it was not represented before the Court of Appeal).
The Deputy District Judge also made a pension sharing order, dividing the husband’s pension equally between the husband and the wife (the husband also appealed against this order, but his appeal was dismissed).
The matter ended up in the Court of Appeal. However, the wife’s representative conceded that the lump sum order could not stand, as the court did not have jurisdiction to make such an order against a third party. The lump sum order was therefore discharged.
Which still left the wife with the £97,000 debt. She could have sought a rehearing, but she indicated that she could not face the prospect of further litigation. Accordingly, that was the end of the matter.
Giving a judgment concurring with the leading judgment of Lady Justice King, the President of the Family Division Sir Andrew McFarlane made a noteworthy point:
“Unfortunately, for the reasons that my Lady has so clearly explained, this case did not receive an adjudication which met with the requirements of the law relating to financial relief. In short terms, the Deputy District Judge made an order which was simply not open for the court to make. I hope that this decision is evidence of the value of creating a Financial Remedies Court – which is currently being piloted – so that only judges who are recognised for their knowledge of, and experience in, financial remedies cases following divorce will, in the future, sit on cases of this type.”
This may not seem entirely fair to the Deputy District Judge (after all, what judge never makes a mistake?), but the President does have a point. It is, of course, one of the primary aims of the new Financial Remedies Courts that they be manned by specialist judges, rather than the present position whereby financial remedy claims may be deal with by judges who have never practised family law. Hopefully, therefore, the incidence of judicial error will be considerably reduced, once the new courts go country-wide.
You can read the full report of the Court of Appeal’s judgment in Wodehouse here.
Whilst the government continues to argue about the size of the Brexit ‘divorce bill’ the potential impact remains unclear. And with no workable plan to address the significant problems that will arise in the family law legal system, it is a time of uncertainty for all family lawyers and their clients.
MPs are set to vote again tonight on Mrs May’s Brexit deal. Will the three new documents, which form part of the divorce, be enough to push her deal through parliament? With the EU making it clear there will be no more concessions, the stakes have never been higher.
As a family law practitioner, I am concerned about the potential impact on family law and my clients.
Our society today is a global one, with more and more families living internationally with different nationalities, dynamics and structures. This is reflected in the diverse cases we represent at the London Victoria office where we frequently work on matters of European cross-border disputes between parties concerning finances and children.
It is arguable that Britain’s decisions to leave the EU in 2016 was in part, brought about by the EU’s overreaching legislative aims with a global agenda.
However, it is wrong to suggest that no good has come from the UK’s membership within the EU, particularly in relation to family legislation. EU law has proved to provide greater certainty for separating families in the following areas:
Recognition of divorce within other EU countries
Recognition of children law within other EU countries
Expedited child abduction proceedings
Recognition and enforcement of maintenance orders within EU countries.
The Law Society guidance published on a no-deal Brexit on family law in October 2018 highlighted that EU treaties will cease to apply with immediate effect in the event of no deal Brexit and co-operation between the UK and EU will end.
The ceasing of EU treaties will directly impact on many families currently relying on EU legislation to enforce orders abroad, recognition of divorce proceedings which may either originate in the UK or another EU country, or at worst the return of abducted children.
No deal will also lead to a reliance on international law, such as The Hague Convention.
When advising my clients, I ask them to consider the impact of Brexit when considering where and when and to issue proceedings, recognition of foreign orders and applications for maintenance enforcement before March 29.
The true extent of Brexit’s impact on family law is not yet known. Time will tell.
Whilst you may not agree with everything that Mr Justice Mostyn says (and you will not be alone), it is always good to listen to him (or to read his words, as the case may be). The other day the Courts and Tribunals Judiciary website published the text of a speech given by him at the Devon and Somerset Law Society last October, and it does not disappoint.
The subject of the speech was spousal maintenance, and specifically: “Where did it come from, where is it now, and where is it going?” Mr Justice Mostyn answers these questions by tracing the history of spousal maintenance from 1857 (when secular divorce arrived) to the present day.
The pre-present day section of the speech is quite fascinating, but obviously the present day rationale behind spousal maintenance will be of more interest to readers of this blog. All I want to mention about the ‘old days’ is that, as Mr Justice Mostyn explains, the courts were then very much the ‘keepers of morals’ when it came to spousal maintenance, as demonstrated by a 1905 case in which the judge said that when considering whether to make a spousal maintenance order, and if so how much it should be for, “the Court should endeavour to promote virtue and morality and to discourage vice and immorality”. Thus, for example, an innocent wife would be granted maintenance, and a guilty wife (for example, because she had committed adultery) would not.
Thankfully, those days are now long behind us. Now, as Mr Justice Mostyn also explains, the most common rationale for imposing the obligation for one spouse to maintain the other into the future is to meet needs which the relationship has generated. For this reason, he says: “the factors of duration of marriage and the birth of children are so important. It is hard to see how a relationship has generated needs in the case of a short childless marriage, although this is not impossible.” The classic example of relationship-generated needs is where the wife gives up her career to bring up the family.
He goes on to address the topical point of why in our system, unlike others, spousal maintenance is not always for a limited period, and can last for the rest of the recipient’s life. The answer is that in some cases, such as where the wife has given up a lucrative career, the loss is irrecoverable. “For many women”, he says, “the marriage is the defining economic event of their whole lives and the decisions made in it may well reverberate for many years after its ending.”
Mr Justice Mostyn then goes on to set out his own summary of the relevant principles behind spousal maintenance, given by him in the 2014 case SS v NS (at paragraph 46). These principles, he says, seem to have withstood the test of time, and they should, I think, be compulsory reading for anyone with an interest in the subject.
But those principles do not go into detail regarding the assessment of the quantum of need. Mr Justice Mostyn points out that in three different recent cases the needs of the wife have been assessed at £25 million, £62 million, and the remarkable sum of £224 million. As he quite rightly says:
“Plainly “needs” does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance. The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.”
OK, like Mr Justice Mostyn I will end by returning to that morality point. Incredibly, as he explains, that moral outlook in relation to family law matters still exists in some quarters, despite being thoroughly dealt with by Sir James Munby, former President of the Family Division, who said:
“Judges are no longer custos morum [‘keepers of morals’] of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be. Once upon a time, as we have seen, the perceived function of the judges was to promote virtue and discourage vice and immorality. I doubt one would now hear that from the judicial Bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and, of course, women.”
If you want to read the full speech (and I recommend that you do), you can find a link to it here.
The first step is to take legal advice to find out what your rights are however if you are just home from a long day at work or have been at the gym to avoid going home this may not be possible.
Below, I have provided a quick overview of the legal position and some practical advice to help you in this emergency.
The most important piece of advice is to keep calm. Easy for me to say, I hear you shout but getting angry/upset is only going to make the situation worse. If you can have a calm conversation and reach an agreement with your ex this is often the best solution.
Perhaps there is someone close to you both that you could speak to, to help mediate to find a temporary solution.
Is there a court order in place?
Have you been served with a court order preventing you from returning? If you have I advise asking a friend/family member or finding a B&B/hotel to stay the night so that you can obtain legal advice the following day.
If there is a court order instructing that you are forbidden from entering the property do not do this as you could get arrested. This applies even if you do not agree with what has been written about you in any court application or statement. If you have been served with such an order without any prior notice, then there will be a date for you to return to court to set out your position. You may have been given the opportunity to file a statement in advance and to apply to discharge the order before the next hearing, so take legal advice at your first opportunity. Ignoring the paperwork or court hearing may lead to an unfavourable order being made in your absence.
House in joint names
If there is no order in place, whether you can enter the property will depend on if you are a legal owner of the property i.e. the property is in your name/the joint names of you and your ex or the tenancy is in your name/both of your names.
If you are a legal owner or your name is on the tenancy you have the right to enter and a key should be provided. Legally you can use reasonable force to enter the property or obtain a locksmith of your own to assist you in entering the property.
However, be warned this may lead to a telephone call from your ex to the police. If you are unable to reach an agreement with your ex, I would advise contacting your local police station to see if they can assist you to avoid any disturbance of peace especially if this is out of business hours. Be wary that your ex may exaggerate or simply lie about what has been happening to get the police to intervene so behaving in an angry fashion will not help your cause.
House in a sole name
If the property is owned or rented in the sole name of your ex, then you may still have the right to occupy/enter the property despite the separation. However, this also means that if the property is in your name it may mean that you cannot exclude the person without their name on the property from entering.
If, however, the person who is not named as legal owner or tenant leaves the property you may be within your rights to then change the locks and they may need permission from you or the court to return.
As you can see there is no one answer fits all and it is important that you take professional legal advice whether you are planning to change the locks or find yourself locked out especially when children or a vulnerable person are involved. You could be heavily criticised, and it may have a negative impact on the overall outcome of your case.
Starting a separation in an aggressive manner can lead to protracted and costly proceedings that could have been avoided if your case was carefully considered from the start.
If you find yourself locked out or wish to change the locks, please do contact us for legal advice before you make any rash decisions at the details below.
All UK taxpayers have an annual exempt amount below which there is no liability to Capital Gains Tax (‘CGT’).
Any capital gain arising on the disposal of a residential property is currently subject to CGT at the rate of either 28% (higher rate taxpayers) or 18% (basic rate taxpayers).
However, any gain made on disposal of an individual’s main residence which they have occupied as their main home throughout the entire period of ownership is wholly exempt from CGT through the use of Private Residence Relief (‘PRR’). Reliefs are also currently available to those who have not occupied the property for the entire period of ownership.
On 29 October 2018 the Rt Hon Philip Hammond presented his 2018 Budget to Parliament and proposed changes to PRR, aiming to ensure it is more focused towards owner-occupiers.
It is proposed that the rules on two of the main ancillary reliefs currently available will change in April 2020 as follows:
This relief is available to those individuals who let out a property that is, or has historically been, their main residence. Relief of up £40,000 (£80,000 for couples) against the capital gain is currently available on the property, even if the owners have not occupied it for a long time.
However, this relief is to all extents and purposes disappearing, as from April 2020 it will only be available to those owners who occupy the property in shared occupancy with a tenant. Thus, homeowners who move and let out their former home will be affected and may now wish to consider selling the property sooner rather than later to avoid an increased CGT bill.
The changes to this relief will not affect landlords who have never lived in the property they are renting out.
Final period exemption
This relief means that at present, the final 18 months of ownership is covered by PRR, even if the property is not the individual’s only or main residence during that period. In other words, an individual currently has 18 months from the date of moving out before any gain begins to accrue.
From April 2020, this relief will be reduced to only 9 months, a period which HM Treasury considers to be twice the length of an average property transaction. For disabled owners or those who live in residential care, the existing 36 month exemption period will remain in place.
Whether realistic or not, HM Treasury believes that delaying implementation of the above changes until April 2020 will give people sufficient time to rearrange their affairs (e.g. by selling their property) under the current rules should they chose to do so.
However, for those currently involved in divorce and finance proceedings, it is important that consideration is given to:
Possible CGT exposure, particularly where one party has moved out of a property (or intends to do so) and where it is also possible that the property will be sold.
Where appropriate, the impact of any property transfers which could take place during the course of proceedings, in order to mitigate any potential CGT liability.
I have often mentioned here orders made under section 91(14) of the Children Act, which prohibit a party from making a further application in relation to their children, without the permission of the court. Such orders are normally made when that party has made multiple applications, and the court considers that it would be best (for the children in particular) to restrict any further applications, usually for a set period of time.
To go into a little more detail, if the party against whom such an order has been made wishes to apply to the court for an order, for example a child arrangements order, they must first apply to the court for leave (or permission) to make the application. Permission will only be granted if the court considers that there is a need for the case to be looked at again.
But strangely there is no set procedure that the court should follow if the party against whom a s.91(14) order has been made applies for permission to make an application. In particular, should the other party have a say in whether permission should be granted? This was one of the issues to be determined in the recent case P & N (Section 91(14): Application for Permission To Apply: Appeal).
The relevant facts in the case were that proceedings in relation to the parties’ two children, now aged 8 and 6, had been ongoing pretty well since 2013, shortly after the parties separated. I won’t go into details, but we are told that in the course of the litigation “dozens of court orders, multiple evidential hearings, and ultimately hundreds of pages of evidential material” were generated.
In January 2015 the court, unusually, made an order that the father should have no contact, direct or indirect, with the children. Within months the father made a second application for a child arrangements order. That application was dismissed in July 2016, when the court made the s.91(14) order, prohibiting the father from making a further application for an order in respect of the children, without obtaining the prior permission of the court. The order was expressed to last for a period of 3 years. The order recited that the father had acted “inappropriately throughout the court hearing to include using foul and extremely abusive language towards counsel for the mother and towards the judge”, that the father did not desist from using foul language when warned of the risk of contempt, and “that he had to be removed from the court by security staff”. The judge making the order recorded that “unless and until the father engages the services of a medical/therapeutic or child care professional in dealing with the issues” then any application made by the father for leave to issue a child arrangements application was likely to be unsuccessful.
After July 2016 the father made several further applications, and his second application for permission was allowed in July 2018. The judge had dealt with the application without notice to the mother. The mother was then notified of the outcome, and she sought to appeal, on the grounds that the judge was wrong to grant the father’s application without hearing from her, or receiving her representations. Her appeal went before Mr Justice Cobb in the High Court.
Mr Justice Cobb allowed the appeal. I will only deal with the procedural aspect.
Mr Justice Cobb considered that the judge had used the wrong procedure. Having decided on the papers that the father’s application was not hopeless, and that he had established a prima face case, he should have afforded the mother the opportunity to make representations on that application. Even if, strictly speaking, the procedure that the judge had followed was not irregular, on the facts of the case, it was wrong not to have given the mother the opportunity to respond to the application. Amongst those facts were that the proceedings had a long and ‘toxic’ history, and “very considerable caution should therefore have been exercised” before re-igniting that litigation; and that there was no evidence (other than the word of the father) that the father had addressed the issues recorded by the judge when the s.91(14) order was made.
In the circumstances the case was remitted for re-hearing of the father’s permission application, on notice to the mother.
You can read Mr Justice Cobb’s full judgment here.
I had a brief exchange on Twitter the other day with a certain eminent family lawyer, who was extolling the virtues of private Financial Dispute Resolution Appointments, or ‘private FDRs’ for short. As we will see in a moment, private FDRs are in the news at the moment (my Twitter exchange may not have been a coincidence), and therefore I thought I would devote a post to them, despite having written about them here in passing previously.
For those who don’t know, an FDR is a hearing that will usually take place fairly early in the progress of a financial remedies application. As I said in a previous post, it is ‘designed to enable the parties, with the assistance of the judge, to identify and seek to resolve the real issues in the case, at a time and in a manner intended to limit the overall financial cost for the parties, to reduce delay in resolving the case and to lessen the emotional and practical strain on the family of continuing litigation.’ In other words, it is an attempt to settle the case by agreement, with the assistance of the judge.
The FDR idea is not limited to financial remedy cases. A similar hearing takes place within the procedure for private children applications. There, the hearing is called a ‘First Hearing Dispute Resolution Appointment (‘FHDRA’). As the name suggests, a primary purpose of the FHDRA is to see if the dispute can be resolved by agreement, usually with the assistance of a Cafcass officer.
So what is a ‘private FDR’? Well, instead of being held by a judge in court, it is held before a specialist family lawyer, usually in their office or chambers, upon the agreement of the parties, who pay for the lawyer’s services.
As I said earlier, private FDRs are in the news at the moment, and their primary advantage over court-based FDRs was explained by an article in The Telegraph last Saturday. Now, I haven’t read the whole article (for which registration is required), but the (slightly misleading) headline read: “Long court delays lead to boom in private divorces”. Of course, there is no such thing as a private divorce (yet, at least!) – what the article was referring to was private FDRs, as it explained in its second paragraph:
“Increasing numbers are paying for both financial dispute resolution (FDR), in which a retired judge gives an indication of the eventual outcome, and arbitration, which is quicker, more personalised and deemed more civilised than attending court.”
I understand that private FHDRAs are also a thing, in proceedings relating to arrangements for children.
So what we have here, as that eminent family lawyer said, is the “privatisation of family justice”. She found private FDRs to be helpful for clients, comprising “the right blend of self-determination & firm quasi-judicial steer”. I asked her how much they cost. She did not give a figure, only saying that: “It varies; and obviously to be counter-balanced against the cost of having a court-based FDR”. The latter point is true, but only of course if you are paying to be represented at court. My guess is that the cost of private FDRs goes into four figures, putting them out of the reach of litigants of modest means.
Now, we all know that the family courts are facing huge issues, with the upsurge in the number of private law applications, the proliferation of litigants in person and the reduction in resources. Delays are a real problem for all litigants.
Anything that offers litigants a way to have their cases dealt with more quickly must be welcomed. And if, as anecdotal evidence I have seen suggests, private FDRs have a higher settlement rate than court-based FDRs, then that is also a very good thing.
But of course it is not all good news. Private FDRs, private FHDRAs and arbitration (for both financial and children issues) all come at a cost. Litigants on benefits and low incomes are priced out of these innovations, and left to put up with the problems that the better off avoid. Along with the lack of legal aid representation they are another example of our two-tier family justice system, in which the level of service you can get is determined by your means.
I’m sorry, but that is not the kind of family justice system I want to see.