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It’s that time again…

… no, not Christmas – although that does indeed appear to be the case – but time to look at the annual Grant Thornton survey of matrimonial lawyers, which is said to reveal the ‘hot topics’ exercising our profession at the moment. Representatives of the accountancy firm asked 77 of the nation’s ‘top lawyers’ (including some of ours, of course) questions based on the way the law has apparently developed – or not – over the last twelve months, and have drawn conclusions from the answers they received. We’ll bring you the highlights, but do feel free to follow the link to the full report if you’d prefer a longer read.

According to the survey, the top issue for ‘top family lawyers’ at the moment is the combined effect of more people using the courts system without a lawyer because of the dearth of legal aid for family litigation, and the attendant impact on the ability of the courts to do their jobs effectively. Apparently, just about half of all of the lawyers surveyed mentioned an element of this issue as their overriding concern. It’s worth remembering that the surveyed few are lawyers who are regularly dealing with multi-million pound cases (the most popular answer to a question regarding the value of the ‘average case’ on their desks, according to the survey, was £1-2m outside London and £2-4m within London), so the proposition that the cuts in legal aid have only affected the poor is clearly not sustainable. It is quite clear that there has been a potential effect on all who seek to use the family court system. In this context, the anecdotal rise of arbitration as an alternative method for the binding resolution of financial disputes is unsurprising. However, this is not available in children cases, which is arguably where the need for attractive alternative methods of dispute resolution is greater. We’re big fans of mediation and collaborative law, but they do rely on both sides being willing to agree a way forward; sometimes, unfortunately, this just can’t happen, particularly without access to good advice.

The area of law that most family lawyers would like to see reformed is the requirement on divorce to prove that the other spouse has been at fault. We’ve previously highlighted Resolution’s campaign for No Fault Divorce, and it’s something we feel very strongly about. The law should not legitimise, let alone require, the allotting of blame on the ending of a marriage and then expect former couples to act collaboratively in order to resolve their arrangements for children, property or finance. It’s time to bring divorce into the twenty first century, and we are heartened that so many of our colleagues agree.

Despite the numerous high-profile cases of bad financial behavior during divorce hitting the law reports and indeed our blog, only 6% of respondents (4 or 5 from the survey) said that the misrepresentation or concealment of assets on divorce was a key issue for them or their clients. When 24% of the London surveyed are dealing with average cases of £10-50m, this is perhaps surprising, but also reassuring: it indicates a measure of faith in the process, and the belief that fraud in family finance proceedings is actually quite difficult to perpetuate. This is, of course, true.

Perhaps the most pertinent area of the survey regards the effect of the new rules regarding pensions. It appears that 77% of the family lawyers surveyed think that now there is more flexibility for everyone on how to realise pension assets, these are likely to become a more important resource on divorce. This makes sense, not just where the former couple (or one of them) is over 55, but also when planning a settlement for younger spouses that will last for the long term. The report correctly states that the changes have not necessarily simplified the process of allotting appropriate shares of pension resources on divorce, as complications can still arise with certain types of pension scheme and certain scheme providers and there are also convoluted tax implications to be considered when debating the merits of early access to funds. Nevertheless, the pension changes improve the availability of options, and where cash is in short supply and the conditions are appropriate, access to pension monies can be pivotal in developing lasting and tolerable arrangements.

As always, this little snapshot survey contains some interesting nuggets about the progress of family law over the last year. The issues matter to the lawyers because they matter to the clients. Of course, because the survey is commissioned by accountants it focuses almost entirely on money, whereas we find that a significant number of our clients are most concerned about their children. It isn’t always easy to divide the two concerns, particularly where the children are young, but it is important to note that money isn’t the whole of the story for many people going through divorce. And on that note, if there’s anything we can help you with, do give us a call on 01223 443333 and make an appointment with Tricia, Sue, Adam, Gail or Simon.