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We mentioned a few blogs ago that a report from the Matrimonial Needs Working Group (MNWG) is shortly due out. This committee was established following a recommendation by the Law Commission that the law relating to financial needs on divorce should be clarified. However another report has stolen a march on the MNWG, so today we bring you the musings of the Financial Remedies Working Group (FRWG). This body was established by the President of the Family Division in June 2014 to explore ways of improving the accessibility of the family justice system to those without legal representation, and to identify ways of improving practice and procedure in financial remedy cases. The FRWG’s interim report was published last summer, and the final report has just been released.

The FRWG report is divided into four key areas: court procedure, litigants in person, court orders and arbitration.

In relation to court procedure, the FRWG recommends that there should be one unified procedure for all financial remedy applications, whether they are financial cases after a divorce/dissolution, applications for financial provision for children, applications to vary maintenance payments, or applications for a financial order in this country after a divorce has been granted overseas. Currently all the forms and procedures are different, and streamlining them would make the process easier for everyone.

The report also recommends beefing up the importance of Financial Dispute Resolution hearings, so that FDRs should happen in all cases, and as early as possible. This is a good idea in many respects as it may encourage early settlement of disputes, but we fear it may impact on court timetables, especially where those involved are without legal advice and a judge is trying to help them reach agreement. Further, some cases require judicial input in their management at an early stage, such as orders for involvement of experts or valuers. It is possible that proper case management could become more difficult where those in dispute go straight into an FDR, potentially without important financial information.

The report also briefly considered the question of without prejudice offers to settle. As we have explained before, there used to be a system in family law where parties could make offers to settle called “Calderbanks”. The principle was that if you made a reasonable offer to settle a financial dispute in the family court, but the other side refused it and asked the judge to decide instead, then you matched or bettered your offer with the outcome at trial (showing how reasonable you had been in your offer to settle), then you could claim a proportion of your legal costs from the other side. Some years ago this system was removed from family law, as judges had become disillusioned by the impact of potentially significant costs orders on their carefully-crafted settlements, and on the families (including children) who had to live with the unforeseen final outcomes. Unsurprisingly in this context, the FRWG dismissed that suggestion that Calderbanks should be reintroduced. The solicitors’ family law association Resolution have said it feels this represents a missed opportunity to incentivise settlement.

In terms of the growing number of litigants in person using the family courts, the report flags up websites, books and sources of guidance that offer help in navigating the process without the aid of a lawyer. It annexes a short guide, which it recommends is sent out with court papers to litigants, but which is very basic and may not give parties all the information they feel they need. The reduction in access of litigants to legal advice is also brought to the fore in the FRWG’s concern about the role of paid McKenzie friends. These are people who make their business helping people with family court documents and supporting or advising them, but who are not lawyers. The growth in this sector has been significant. Yet another group, the McKenzie Friends Working Group, is due to report on the issue soon, so we can probably expect updated guidance on the role and limitations of McKenzie friends within the next few months.

This report is not law, but may well result in changes to the way the family courts work. We believe that everyone using the system would benefit from streamlining and standardising the process, making it easier to navigate and to understand. Many of us at the coalface retain a few reservations about the impact of some of the measures proposed on scarce court resources, and also that the report’s encouragement of arbitration where means allow may lead eventually to a two-tier system of justice.

With so many reports on different aspects of the family justice system coming out in the next few months and the general election just around the corner, perhaps what is most urgently required is a holistic, strategic overview of the direction of family law and family justice. Sadly, this seems as far away as ever.

If you would like to make an appointment to talk to us about any aspect of family law that affects you, please get in touch on 01223 443333.

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