Keeping divorcing couples out of the courts

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February 20, 2012


A Brewing Storm

By Marilyn Stowe

Trying to keep divorcing couples out of the courts will prove fruitless – the government should be focusing on making the justice system quicker and easier for clients, argues Marilyn Stowe

Batten down the hatches; there’s bad weather coming. A combination of factors has amassed to create what can only be described as a perfect storm for the legal landscape, one that is in danger of swamping our judiciary.

The first warning signs were registered by District Judge Nicholas Crichton. He noted how our courts have become saturated with litigants in person and the detrimental effect this is having on the entire family justice system. For the cost of their court fee, they have the power to take up a court and judge’s time. And their uncertainty leads to more litigation; they don’t know when to negotiate or accept a deal and drag out the court process, sometimes resulting in an illustrious judge being dragged into murky waters.

Added to these already choppy seas comes a mighty gale: the government response to the Family Justice Review. Most of the report’s recommendations are about streamlining the judicial process and making cost savings. In these economically straitened times it is perhaps no surprise that the consensus is to keep divorcing couples out of court in order to ease the burden and save money.

There will be a tightening up of the requirements for couples to attend a mediation information and assessment meeting (MIAM), and increased encouragement to seek advice from someone who may not be legally trained. Couples are also going to be directed to online information services, rather than seek immediate advice from a solicitor who could advise them as to their actual legal position rather than that of the public in general.


Growing concerns

People don’t, and realistically can’t, conduct their own surgery. They wouldn’t, for example, pull out their own teeth, yet, in a process that will shape the rest of their lives, people are actively and positively encouraged to have a go themselves. It comes as no surprise given the decimation of our legal aid system, once envied across the world. How can people be directed to take the legal advice if the government has removed their means of access to it?

We will soon have a cost-saving administrative divorce process, one that will no longer be managed by judges, and that will have no requirement for them to approve the arrangements for children before granting a decree nisi. We face the real prospect of serious fraud in divorce and children from dissolving marriages joining the ranks of those from separating cohabitants, passing ignored and unchecked under the court’s radar.

Alongside the concern that families may not receive the legal support they need, I also believe the government’s emphasis and investment in ‘dispute resolution services’ may delay but won’t prevent parties from ending up in court. Alternatives to the court system are unlikely to work, as the muted response to compulsory mediation in the earliest stages of family cases has shown. The government insists otherwise, but all of us who heavily invested in mediation training are still waiting for couples to use it.

A system without teeth is pointless regardless of how much money we throw at it. And what about the miscarriages of justice due to people being unable to afford to see lawyers? More will be making decisions with the help of non-practitioners who are ignorant of the law and with no clue as to the myriad outcomes.


Lighten the burden

So, why not try a proven way forward to reduce the burden on our civil courts and the cost of state-funded legal support? Keep cases that belong in court, in court. Improve the legal aid budget and make the system friendlier, more accessible and easier for potential clients. All but the most complicated residence and contact cases should be put in front of a magistrate, with only the tough cases progressing to county court. Cases before magistrates should be dealt with immediately and without reams of paperwork, lengthy reports and so forth. Each case should be more tightly contained thus more control of overall costs. With tighter control of block contracts to legal aid lawyers there will be one or two hearings, all with the benefit of legal representation.

It’s time for the government to stand back and use a bit of good old common sense: you can’t permanently remove these cases from the justice system, but you can make it quicker and easier to find justice. To do so you need the help of legal aid lawyers – it is as simple and straightforward as that. If we recognise it now, we might yet stand a chance of turning this tide.


Marilyn Stowe is the senior partner at Stowe Family Law. She blogs at


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