From my latest Solicitors Journal column “Family Business”, 8/7/2014
We need more than fine words and ‘fine-tuning’ for family law reform, says Marilyn Stowe
Sir James Munby’s recent calls for ‘fine-tuning’ of the family justice system could have gone further, but at least he raised the need to protect the rights of cohabiting couples, review the legal aid provision and streamline the process of divorce itself from the process of a financial dispute.
The president of the family division said the reforms of the 1990s were ‘outstandingly successful’, but there were still improvements to be made. I fear too many tweaks, adjustments and suggestions aimed at changing family law overlook two glaring issues faced by thousands of litigants every day. We have to give back legal aid to those who need it. Its withdrawal is an incredibly short sighted Treasury led policy that has caused for more expense than anything it was ever designed to save.
The second need for urgent action relates to the legal protection of cohabitees’ rights. There are countless inequalities between the rights of cohabiting and married couples. Taking one recent example, the government rejected recommendations to amend the rules governing inheritance for cohabiting couples. Unless a valid will is made, unmarried couples living together have no automatic inheritance right to their partner’s estate, even if they have children.
Presumably, the current government will not adopt the proposed changes because it does not want to give any form of legal comfort to cohabitees.
Sir James also proposed that a working group should explore ways to improve access to the family court system for people who cannot afford legal representation, and ways to improve the way financial remedy cases are handled. The group will pursue the need for explanatory material, written in plain English in order to help people who “not through choice, have to act as litigants in person”.
Much more must be done to protect access to justice for all. The Justice Alliance’s legal aid petition has already attracted more than 24,000 signatures. Some claim concerns about legal aid are really just lawyers protecting their own interests, but I think that is quite misguided.
It is not lawyers, for the most part, who have really suffered from the existing cuts and who will feel the brunt of any further budget slashing, it is those in need of justice. Few people who hire a lawyer do so because they have any other choice; they do so because they are in extremis. Often their partner has left them, they have been caught in a dispute, and they are in trouble and need to protect their interests as best they can.
With help from an understanding and patient judge they might just be able to get by. But what if they then find themselves standing across the courtroom from an opponent who does have a lawyer? The answer is instant injustice. The represented party will have all the advantages of expert advice from someone fluent in the procedures of the courts. Even if their case is the weaker one, money affords them a better hand. That cannot be right or fair.
This article was first published by Solicitors Journal, and is reproduced by kind permission
Photo by Keoni Cabral via Flickr under a Creative Commons licence