Are family litigants bad people?

“If there were no bad people there would be no good lawyers.”

CHARLES DICKENS, The Old Curiosity Shop

It’s strange where the idea for a post may come from. This post originated with me coming across the familiar quotation above. Reading it got me thinking: does it apply to family law? Are litigants who need good family lawyers bad people?

It is probably true to say that when he wrote about bad people Dickens did not have family litigants in mind (such as they were in his day). He probably had in mind criminals or people like Daniel Quilp, the moneylender villain of The Old Curiosity Shop, who takes possession of the shop by evicting Nell and her grandfather. But is there any sense in which the need for a good family lawyer is due to the fault of the client?

To answer the question we need to look at why a good family lawyer is required. In essence, they are required for two things: to give advice and to achieve as favourable a settlement as possible for the client.

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The requirement for advice must mean that they have some family-related problem, resulting from the breakdown of a relationship. There are, of course, some situations where there is clear fault, such as where there has been domestic violence. However, the suggestion that someone is somehow at fault simply because their relationship has broken down would surely not be accepted by most people nowadays, although there still are some who would criticise couples who they think give up on their marriages too easily.

The need for a lawyer to achieve as favourable a settlement as possible for the client is slightly more complicated. One has to ask: once they have taken advice, why can’t the client achieve a perfectly acceptable settlement without the need for a lawyer? This can be particularly obvious when it comes to sorting out disputes over arrangements for children – very often, the solution to the dispute is clear to any impartial bystander. The answer is that sometimes they can, perhaps with the assistance of mediation, but often positions are too entrenched and one or both of the parties is too unreasonable for a settlement to be agreed, so a lawyer is required.

But does being unreasonable make the client a bad person? It is, surely, all a matter of degree, and of what is in that party’s mind. A party can hardly be criticised for digging their heels in for something that is just beyond what they should reasonably expect from a settlement, in an attempt to get ‘a little bit more’. On the other hand, we have all come across behaviour that is designed simply to frustrate the legal process and deny the other party their legal entitlement (I wrote here about one recent example of extreme misconduct just last week) – in such situations there is clear fault and the other party is most certainly in need of a good lawyer.

It seems that, like so much of Dickens, there is an element of truth in the quotation, and that truth still holds today. However, the vast majority of family litigants are not ‘bad people’, in any sense of the term. They simply find themselves in a bad situation through no design of their own, and they are just trying to find the best way to get out of it.