Twenty one years ago The Times reported on a family law practice that opened for business in anticipation of the fundamental reforms of divorce law to be introduced by the Family Law Act 1996. As the new arrival, now known as Family Law in Partnership or FLiP, turns 21 today three of the founders and their colleagues discuss what has changed in family law in the intervening period and whether all, or indeed any, of that early promise has been fulfilled.
Director Gillian Bishop, one of the founders, reflects: “By and large the family justice system has improved, particularly for the well off – but others are being hit incredibly hard by the dismantling of the welfare state. The removal of Legal Aid for most is forcing more individuals to forage for their own solutions in a world of such complexity that those less able to look after themselves are likely to be in great difficulty. Overall, I would say that whilst the professionals have made things better, on balance the State has made it harder for families to separate well – we have made advances, but a good separation is much harder to achieve than I hoped it would be when we set out.”
So, how have things changed since the then Lord Chancellor, Lord McKay of Clashfern, held the press conference to launch the 1996 Act in the firm’s boardroom twenty one years ago?
Relationship support: The firm opened offering a “one stop shop” where clients could obtain legal advice and representation, together with mediation and counselling under one roof. Bishop notes: “Back in 1995 we wanted to create a family law firm that could deliver a bespoke service to clients from all walks of life and combine counselling, mediation and legal skills of the highest quality – I believe we have achieved this.” Mediator & counsellor Ruth Smallacombe agrees, but is disappointed by the poor spread of the model. “We thought that firms like ours would spring up all over the place and that the much needed integration of legal advice and representation with mediation and counselling would be common-place. Systemic and therapeutic services are much more common now than in the 1990s but for too many family breakdown is a law-managed process, with families led by the crude structures of legal precedent and lawyer-deal-making un-informed by the couple’s own insights and principles. Both aspects are needed.” With this in mind, FLiP offers Parenting After Parting workshops for parents undergoing separation to share ideas on how best to manage the process for their children.
Mediation: The firm was born of the expectation promised by the 1996 Act that would simplify the divorce procedure and bring mediation centre-stage. The Act was abandoned by the Blair government, leaving mediation to depend first on Legal Aid and then on rule changes in 2011 which introduced compulsory mediation information and assessment meetings (MIAMs) to hear about mediation and assess its appropriateness. Dominic Raeside, Head of Mediation at FLiP and one of the capital’s leading mediators, notes: “Mediation has traditionally been taken up by about 15% of families. It offers a cost effective way for people to make decisions about their futures, how they will divide assets and parent any children and so on.”
Alternative processes: Meanwhile other initiatives have jostled for space. FLiP was at the forefront of the introduction of the collaborative (no court) model of dispute resolution into the UK in 2003. Collaborative practice sees clients supported by their own lawyers in face to face meetings, underpinned by a code of conduct and a set of commitments to transparency and positive, interest-based negotiations. FLiP has also embraced the new family arbitration scheme, a model that sees the appointment of a “private judge” whose award binds the parties. Four of the FLiP team, Gillian Bishop, James Pirrie, Felicity Shedden and Bradley Williams, offer this service. The model is available for financial and children issues in England and Wales. Pirrie is a strong advocate: “Government cut-backs have meant longer delays at Court, more cases going part-heard, meaning delays of months. Against this, arbitration offers a tailored service that can slash delays from the calendar and thousands of pounds from the bill. The most appropriate arbitrator can be appointed to decide the case, which is then timetabled to the parties’ convenience rather than the Court’s availability. What is not to like? I have been hugely frustrated by the profession’s conservatism, which is costing dear those families who can’t reach their own agreements through mediated or collaborative approaches.”
Divorce: England clings anachronistically to its divorce grounds created in the late 1960s that require proof of adultery, behaviour or over two years of separation before a divorce can be granted. After the 1996 reforms were abandoned, successive governments have seen too much risk and too little reward in bringing our systems up to date. The judiciary does what it can to pass through petitions on flimsy behavioural grounds but it is profoundly unhelpful to be forced to look into the past and focus on conduct at the start of the process when what is really needed is a focus on the future.
International & relocation: A family separation that involved international elements might have been noteworthy in the mid 1990s. Now most cases will involve international aspects of one sort or another. Tightening immigration rules have made things particularly hard for some families. In the mid 1990s, courts were in the grip of the decision in Payne, a case that dictated that usually courts permitted parents to return abroad with the children, even where this would involve the splitting of the family and a much reduced relationship with the left-behind parent. A Court of Appeal decision in March 2011 was seen as the trigger for an about turn, at least in some courts, bringing our law much closer into line with many of the Commonwealth jurisdictions, where permission for relocation, if one parent objects, is exceptional.
Same sex relationships & cohabitation: During his period as chair of Resolution, Allison campaigned for legal recognition of civil partnerships and identifies this along with same sex marriage as one of the key areas of undisputed change for good over the last twenty one years. In the mid 1990s the thought that the State would recognise civil partnership and same sex marriage seemed a distant hope. There was a sudden change in 2004 with the passing of the Civil Partnership Act which came into effect in December 2005. It became obvious to the government and a majority in Parliament that change was needed. Since then we have moved towards a unified code applying to all relationships without discrimination on grounds of sexual orientation with The Marriage (Same Sex Couples) Act 2013 receiving Royal Assent in July 2013 and now fully in force. But the law surrounding cohabitants remains quite different from the public perception of “common law marriage“. Allison worked on Lord Lester’s cohabitation bill to promote legislation for change and give vulnerable cohabitants some form of redress but the position remains uncertain.
Financial provision: Back in the 1990s, the Courts could carve out for the applicant spouse only what that spouse could show they needed. This left spouses of the very rich with what might have seemed like a pauper’s share of the greater pot. From 2000, the Courts adopted the principle that marriage is a partnership of equals entitling each side to equal shares and restricting “special contribution” usually to cases involving multiple tens of millions of pounds. By and large sharing continues to be the starting point and only when needs cannot be met is further intervention required. Pension sharing arrived at much the same time, permitting spouses of pensioners to share equally in the funds built up during the marriage. The soaring maintenance awards seen in the mid-noughties, (most notably with FLiP’s success in the cases of McFarlane in the House of Lords in 2006 and again in the High Court on a variation in 2009) are now being pulled back with further restraints anticipated.
Pre-marriage agreements: In the 1990s “pre-nups” were seen as the preserve of only the very rich and famous. A succession of cases between 2010 and 2012 has seen them move to become more commonplace. Director Daniel Coombes says “Like other family law firms we are seeing increasing numbers of instructions for pre nups. We have yet to see many challenges to pre nups which makes us hopeful that we are creating structures that work for couples and give them the capacity to resolve issues between themselves in the event of marital breakdown.”
“Over the last 21 years I have been able to watch Family Law in Partnership really fly” concludes Bishop. “The firm has grown in size – we will have 19 family law professionals later this month, up from only 5 twenty one years ago – and many of our lawyers and mediators are recognised as leaders in the field. In 2011 Family Law in Partnership was named Family Law Firm of the Year in the inaugural Family Law Awards launched by Jordan Publishing, one of many accolades the firm has received in recent years. However, what worries me most is the overall perception of the profession. So many people are anxious about the motives of the family lawyer, leading them to try to do a ‘diy’ job off the back of some perhaps misunderstood internet guidance. What is at stake is so enormous – everything the couple has and all that they will earn, quite apart from, usually, the most important thing they have , their children – that side-stepping even an initial consultation meeting seems short-sighted indeed.”