Another casualty of the recession?
During the deepest and longest recession the UK has seen for many years, many much loved institutions have fallen by the wayside in a tough economic environment.
However, whilst not widely known or loved, the law which has affected the resolution of matrimonial financial cases for the last 40 years, and affected hundreds of thousands, if not millions, of people may be about to fundamentally change.
We have largely had the same law governing family financial matters since 1973 and its longevity is due to the fact that it is flexible in its application and provides bespoke outcomes for each couple. However, this very flexibility causes uncertainty and its bespoke nature means that it has been very expensive for people paying either through Legal Aid or themselves.
The demise of Legal Aid has been coupled with a push by the Government to encourage people to go to mediation. An unforeseen consequence of the cessation of Legal Aid in the Family Courts is that, perversely, the number of Court applications has increased. Previously Solicitors would encourage their Clients to go to mediation before issuing Court Proceedings whereas now the lay person is tending to go straight to Court.
So disturbed are the Government by this develop that they proposing to make mediation compulsory before Court Proceedings can be issued. This is an attempt to get people to think twice before embarking upon Court Proceedings and for a skilful Mediator to see if there are any areas of common ground that can be built upon.
Undoubtedly, mediation is a cheaper and less damaging way to resolve disputes but there is evidence to suggest that it is most effective when it is attended voluntarily. Whilst the applications to Court will undoubtedly drop initially as a result of this proposed change, mediation has to be successful for there to be a sustained reduction in the number of cases going to Court.
However, there is a another proposed change which is a more fundamental shift in the way that family financial matters are approached. Following the consultation recently carried out by the Law Commission they are recommending changes in the law around nuptial agreements (which also encompasses Civil partnership agreements). They recognise that in order to have some certainty as to the rare occasions when the Court might intervene following a qualifying nuptial agreement, the concept of needs must be clarified.
This is a major shift from previously where the statutory framework has been deliberately non specific in order to allow a flexible and bespoke approach. This has made it a grey area for the lay person to grapple with which can have a knock on effect on the success of mediation. Clarification of needs will be welcomed by many together with the definition of what is and what is not matrimonial property and how it is to be treated. These two areas alone will reduce the scope for dispute.
The proposal to strengthen the weight of nuptial agreement is an unsurprising development. It is increasingly difficult to explain to couples that they do not have the freedom to agree, even at the outset of their marriage, how they wish to regulate their financial affairs in the event of a permanent separation or divorce and that the Court can intervene. Provided that the vulnerable can be protected by their needs being met, most people will have the freedom within a framework to be able to make their own decision without the involvement of the Court as do the majority of their European counterparts.
The lengthy and expensive cases we hear about being dealt with in the Principal Registry each year could become as much of an anachronism as the 19th Century Hearings about adultery. These developments, might indeed, be a benefit of the recession.