From my latest Solicitors Journal column “Family Business”, 10/07/2012.
Instead of developing a ‘divorce by app’ scheme the government should consider allowing ‘no-win, no-fee’ in family cases, says Marilyn Stowe
It has finally happened. After a slow and agonising demise legal aid has met its end at the hands of the coalition. Access to justice, one of the cornerstones of Western democracy, is under threat.
In family law the future is one in which self-represented litigants cram the courts and judges take a more inquisitorial approach to handling proceedings. The government isn’t leaving people to fend for themselves though; no, they are developing a ‘divorce app’ that will guide couples through the process.
There is no part of the above paragraph that doesn’t make me feel queasy for the prospects of thousands of families across the country who seek legal recourse every year. I have already witnessed at first-hand the challenges self-represented litigants face in understanding the law, navigating the court system and dealing with judges who have little experience of handling a case in these circumstances.
Judges are not only being told to ask more questions, making hearings much more like tribunals, but are also charged with undertaking case management to avoid massive backlogs. All of which is added to their current responsibilities of understanding a case, interpreting the law and adjudicating.
They are under more pressure than ever before. The days when they were only ever presented with two sides of a carefully constructed argument by well-trained solicitors are no more, and they must now undertake all the responsibilities outlined above with little or no additional support.
If you have two opposing self-represented litigants, neither of whom understand the law and are bogged down in the details, and a judge who knows nothing of the case until he reads the papers shortly before the hearing, you are asking for a whole host of problems.
Fundamentally, there is a misconception that judges know it all when they cannot possibly be expected to. And there is a real danger that in this new era pressured judges are asked to rule on points they simply don’t know about.
Of course there is no substitute for legal aid. But if continuing with it is truly a political and economic impossibility, we need to look at alternatives that go beyond the gimmicks being touted.
One such alternative was suggested by Nicholas Cusworth QC, chair of the Family Law Bar Association, who believes law should be established to provide a default regime for the division of assets when relationships break down.
In my mind there is very good reason why we don’t have community of marital property in this country, and that is it ignores needs. Millions of people would be affected and left worse off by such a change, likely burdening the welfare state with far more single parents.
I have another suggestion, one that might just work. What if we changed the costs rules in family cases and got rid of the ‘no order’ principle? This would create an opportunity for family lawyers to take up cases on a ‘no win, no fee’ basis, with the losing party paying a costs order set at the judge’s discretion. There is currently little risk in litigating, but if that risk were to return it would lead to lawyers being far more circumspect and reduce the number of cases reaching court.
Whatever fills the gap left by Legal Aid, it needs to do so quickly and effectively. And although we live in technologically-advanced, 24-hour society; I do not believe a mobile phone app quite fits the bill.