What role for the law? The government’s response to the Family Justice Review

The Government Response to the Family Justice Review, which was led by accountant David Norgrove and an almost exclusively child-focused committee, was published this week. Most of the report’s recommendations were, as expected, accepted – in particular those relating to streamlining the judicial process and making cost savings.

In these economically straitened times it is no surprise that the consensus is to keep divorcing couples out of court in order to ease the burden placed on them and save money.  As a result, we are soon going to have a more administrative divorce process; one that will no longer be managed by judges, and will have no requirement for them to approve the arrangements for children prior to granting a decree nisi. We will soon have the children of divorcing couples joining the ranks of those from separating cohabitants, who currently pass ignored and unchecked under the court’s radar.

In order to take heat out of disputes, words such as Contact and Residence and terms such as Alternative Dispute Resolution (including mediation, the collaborative process and arbitration) will all go, and the government will only make reference to “Dispute Resolution Services”. When I heard this I was reminded of the abolition of the words Custody and Access twenty years ago, for all the difference that has made.

Nevertheless, more money and time will be spent on mediation. There will be a tightening up of the requirements for couples to attend a Mediation Information and Assessment Meeting (MIAM) to seek advice from someone who need not even be legally trained, so long as they are a trained mediator. Couples are also going to be encouraged to look at online information services, rather than seek the advice of a solicitor who can advise them personally and in detail as to their own legal position.

So it’s all change…

Especially as far as the divorce process is concerned, with as much as possible being done to keep couples out of court and away from lawyers. Overall it’s a terrible, crying shame because people don’t (and realistically can’t) conduct their own surgery. You wouldn’t pull out your own teeth without the risk of horrible disfigurement and pain would you? Yet in a process that will shape the rest of their lives and the manner and standard of how they will live it, people are being actively and positively encouraged to walk blindfolded along an incredibly dangerous tightrope.

David Norgrove recommended in the Family Justice Review that there should be “a separate review of financial orders to include examination of the law”.

The Government Response is as follows:

The Law Commission is already taking forward a project to look at how provision might be made for pre-nuptial, postnuptial and separation agreements to be given legal effect, so as to provide couples with more control and certainty about how their assets are to be divided on divorce. Ministers have agreed that this project should be extended to include a limited reform on the substantive law on Financial Orders relating to needs and non-matrimonial property. The project will take around 18 months to complete. The Law Commission will then undertake a separate project to make recommendations for improving the enforcement of Financial Orders. These two projects together will improve the substantive law and make it easier to enforce Financial Orders once made by the courts.

On the same day as the government’s response was released this week, I received an invitation from Law Commissioner Professor Elizabeth Cooke to join the advisory group of legal practitioners, academics and members of the judiciary who will be considering this subject. I was delighted to accept since I have long been interested in pre and post-nuptial agreements, together with the application of the law in disputes relating to matrimonial and non-matrimonial property. More importantly, throughout this blog, I have been been extremely fortunate to gather a great deal of information from readers, who have expressed varying and diverse opinions about the present state and operation of the law.

I am very grateful to all my readers because, if I can, I intend to make reference to what I have learned from you in my new position. Thanks to you all.