John Bolch: It’s all about the money, honey

It seems that, for better or worse, reform is to be a permanent feature of our family justice system. On Monday the President of the Family Division Sir James Munby published the 12^th edition of his View from the President’s Chambers, in which he outlined the next steps in the reform process.

And there are many steps, covering everything from the Child Arrangements Programme (‘CAP’), to the Law Commission’s proposals in their Matrimonial Property, Needs and Agreements project, to transparency and standard court orders, and much else besides. What I wanted to discuss, however, was something new: the Money Arrangements Programme (which, of course, is reduced to the acronym ‘MAP’).

As its name suggests, the MAP is to be the money equivalent of the CAP, which sets out ‘best practice’ in relation to how the courts should deal with disputes between parents over the arrangements for their children. The MAP will do the same thing in relation to financial remedy cases.

Producing the MAP is to be the objective of a new ‘Financial Remedies Working Group’, which will review the practice and procedure in relation to financial remedy claims. The review will consist of five ‘strands’:

1. Making the processes in financial remedy cases as ‘litigant in person friendly’ as possible, in the light of the new reality of far more people having to represent themselves since the abolition of legal aid for financial remedy claims. This will include making judicial processes more inquisitorial and the preparation of explanatory materials written in plain English.

2. Encouraging and facilitating the use of out-of-court methods of resolving financial disputes, whether by mediation, arbitration or other appropriate techniques. Of course, nothing can be said nowadays about family law court processes without mentioning alternative dispute resolution.

3. Exploring the feasibility of uncoupling the process of divorce from the process of adjudicating claims for financial remedies following divorce. This is something that the President mentioned in his press conference on the 29^th of April. I’m not really sure of the benefits, and there can be, of course, a link between the divorce and financial matters, for example where rights under a spouse’s pension scheme terminate when the divorce is finalised – often, therefore, the divorce is not finalised until all financial matters have been resolved.

4. The President has indicated that he would like to see if there is any scope for more closely aligning practice and procedure in the three major types of financial remedy cases: those following divorce (or dissolution of a civil partnership), those under Part III of the Matrimonial and Family Proceedings Act 1984 (financial relief in this country after overseas divorce), and those under Schedule 1 to the Children Act 1989 (financial provision for children). Linked to this, he says, the Working Group may wish to consider whether there is scope for introducing a shorter or more streamlined process in cases where the court is satisfied that this is appropriate. That latter point certainly seems a good idea – I remember when I was practising that the procedure seemed rather cumbersome when dealing with simpler cases involving few assets.

5. Finally, the President has asked the Working Group to review all the application and other forms used in financial remedy cases to see whether any adjustments are appropriate and to create a comprehensive body of standard form orders for use in such cases. Again, the President has in mind the benefits of this for litigants in person and judges dealing with them, although I’m not sure how much more forms can be ‘improved’ and there have, of course, already been precedent orders which have been in general use.

The Working Group has agreed to produce an interim report by the 31^st of July, which doesn’t seem to me to give them very long to do an awful lot of work.

Overall, says the President, the aim, “must be to simplify and streamline the process so as to make it more user friendly for litigants, litigants in person in particular, and quicker and cheaper for all.”

I hope that the review is successful in this aim, although I do worry that the MAP will just add another layer to the ‘rules and regulations’, which will make it more difficult to use the system rather than easier. It does seem a little ironic that we will be giving litigants in person something extra to read, along with the statutes, rules and practice directions (not to mention the cases).

It also concerns me that there seems to be no end to the reform process – I trust that those working within the system won’t in future be subjected to constant change, in the same way that teachers are. There seems to be an attitude these days that ‘if it’s new, it must be better’. This, of course, is not always so.

Or perhaps I just worry too much. Maybe it really will be a better system, making it easier for all to resolve their money disputes, whether represented or not. As usual, only time will tell.

(The idea for the title to this post was shamelessly taken from a chapter title in Marilyn Stowe’s excellent book Divorce & Splitting Up, Advice from a top divorce lawyer.)

Photo by FreddieBrown via Flickr