The myth that there is no ‘law’ in family law

Family Law|January 7th 2019

At the end of my post here last Friday I mentioned briefly a story in the Law Society Gazette reporting that a former police officer who has set up a website linking the public with McKenzie friends has said that it is an ‘irrebuttable truth’ that family law does not need lawyers.

Apparently, the website “will link up around 100 former police officers acting as McKenzies with members of the public”. Quite why former police officers should be well qualified for the task of assisting family law litigants whereas family lawyers are surplus to requirements, I’m not sure. Perhaps it follows from the linked idea, also expressed on behalf of McKenzie friends, that family law is simply about common sense, a quality that maybe former police officers are believed by the public at large to possess.

Whatever, the idea that there is no ‘law’ in family law is nothing new. I remember it being mentioned way back when I was studying law, with students of other legal topics snobbishly suggesting that family law was an ‘easy option’ that did not test the grey matter in the same way that their more complex subjects did (in fact, I suspect that many of those who said this would not have lasted five minutes at the coalface of practising family law). I didn’t engage in the argument myself (I did study family law, but it was not until later that family law became my path), but I suspect that it irritated those who did intend to become family lawyers.

So is there any truth in the idea?

Well, it is certainly true that in practice much of family law is little more than common sense (I think, for example, of deciding upon arrangements for children following the separation of their parents), but the same can be said for other areas of law (and, indeed, many areas of human endeavour). After all, for example, lay people are tasked as jurors or lay magistrates to decide criminal cases, using little more than their own common sense. And even the interpretation of a term in some complicated contractual dispute may in the end boil down to the application of a dose of common sense.

But if common sense is used in the making of decisions, the decision-making process is, of course, guided by a legal framework. And that is as true of family law as it is of any other area of law.

Take, for example, financial remedy proceedings following divorce. A judge dealing with a financial remedy application is not free to simply come to whatever decision they see fit. They must be guided by the legal framework. That begins by a consideration of the factors that they are required to take into account by section 25 of the Matrimonial Causes Act 1973. But that is just the beginning of the process. Parliament specifically left section 25 ‘vague’, in the sense that it does not tell the court exactly what it must do in a given set of circumstances. Accordingly, in the 45-odd years since the Act was passed the courts have had to interpret section 25. This has led to the creation of a huge and ever-changing body of case law that must be learned by family lawyers.

Of course not all of that case law applies to every case, and yes, some cases are quite straightforward to decide. But if you do not have a legal training, how do you know that a given case requires little consideration of the law?

But the actual law is only part of it. On top of the law comes the procedure, and that can be every bit as complex as the law itself. A huge part of being a family lawyer is knowledge of the relevant procedure. In fact, many cases turn not on the interpretation of the law itself, but on the interpretation of the rules governing the procedure applicable to the case. Go into family litigation without a knowledge of the procedure at your own risk.

In short, the idea that there is no ‘law’ (and by that I include legal procedure) in family law is a common misconception, and one that is obviously going to be attractive to non-lawyers seeking to make money out of those unfortunates who can’t afford a lawyer and are no longer able to get legal aid. It is a myth, and a dangerous one, that could easily lead to misinformed litigants failing to achieve the outcomes that they seek, or even that they are entitled to.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comment(1)

  1. spinner says:

    When you can go to court A with judge B and get a totally different outcome to going to court C with judge D then there is no law in family law or at least not the kind of law a normal person would consider law.

    The McKenzies friends website offering services of ex-policemen is an excellent idea as with increasing digitisation most people can replace the need for a solicitor’s involvement in their case however physically going to court and presenting your case in person is a whole different thing. In the current system hiring a barrister will I think give you a much better outcome however if you can’t afford that going by yourself to present your case would be very intimidating so as second best to have someone familiar with the system to give you some support would be very welcome.

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