Too much choice in divorce?

Every year, the accountancy firm Grant Thornton publishes a survey which details the opinions of those whom it considers to be the country’s top family lawyers (including us!): 139 responded this year. It looks at the work done by these lawyers in the preceding year – so, 2011 – and sometimes makes for interesting reading. We thought we’d take a look and see how our experiences compare with the others who were surveyed. And if you want to read it yourself, you can find it here.

The headline splashed across the top of the press release asks whether there are now too many alternatives for divorcing couples – alternatives to litigation, it means, like mediation, collaborative law and arbitration. In respect of mediation, we were interested to read the survey’s report that 82% of people who attend a Mediation Information and Assessment Meeting (MIAM) after referral by their solicitor go on to use mediation as a way of sorting things out between them. To us, this does beg the question of how many clients the other lawyers are sending for mediation assessments, and whether it is only the ones where the solicitor/client has already formed the view that mediation might be appropriate – otherwise, the numbers going on to mediate seem very high. (If you’d like more information about Mediation or MIAMs please have a look at our mediation pages or download our factsheet). Mediation meetings are supposed to be compulsory before the issue of most family court proceedings, but it seems obvious that for most of us this isn’t quite how it works in practice.

Amongst the solicitors surveyed there is general support for the process of collaborative law, but not very much of it actually going on: it is not clear what is going wrong between the intention to resolve matters through the collaborative process and reality. The survey suggests that a lack of suitable clients might be a possible reason, but in reality there may be more of an education issue. A third option discussed in the report is family arbitration, which was launched as a court based alternative in February 2012 under the auspices of the newly formed Institute of Family Law Arbitrators. Around half those surveyed think arbitration will become a significant method of resolving family disputes within the next few years, with the other half clearly not so sure.

The general lukewarm response to “alternative” methods of dispute resolution for families prompted Grant Thornton to ask whether there are now too many options for families going through separation. This is an interesting question – is it possible to have too much choice of process for resolving what might be the most difficult, emotional, intimate dilemmas of a person’s life? In our view, each family is different, and provided everyone involved has good advice about the options open to them, there can be no such thing as too much choice. Aside from that, the question ignores the fact that the family courts are already creaking under the pressure of family breakdown, and when access to legal aid in private family proceedings is removed next April, the lists of cases will get even longer. Whatever your position on the access to justice issues involved in the debate about the removal of legal aid, everyone agrees that the likely impact will be court cases taking much longer to get resolved, and that there will be much more emphasis on out-of-court dispute resolution processes as a result. In many cases, court will simply not be a viable option.

The recession continues to effect divorce rates, with 75% of the solicitors polled believing that couples are delaying proceedings due to financial concerns. Also, lawyers unsurprisingly report reducing levels of family assets to be distributed. Another possible effect of the recession is people being less willing in divorce proceedings to reveal the true extent of their wealth, especially in some high-asset cases: this showed up in the survey too as an area of current concern for family lawyers. We do face problems in cases where there are concerns about assets being concealed, since the 2010 case of Tchenguiz v Imerman; Imerman v Imerman examined the issue of what documents could be relied on or used as evidence in family cases. The Court of Appeal decided that in many cases a spouse or civil partner may not breach the confidentiality of documents belonging to the other spouse/partner by seeking to use them as evidence, even if they prove the existence of assets being hidden during the divorce process. This has left lawyers in a difficult position, as we are often not allowed to see documents found or obtained by our clients which belong to their spouse, although it does depend to an extent on how the documents have been collected.

Other than the formal full and frank disclosure which is ordered to be given in Form E in financial proceedings before the court, the law now says that clients are generally not permitted to look at documents belonging to their spouse once they have separated. Worryingly, the survey demonstrates that in 29% of cases a lawyer acting felt they knew about a spouse’s concealed assets but could not use any documents to prove it. This sort of situation can leave both lawyer and client feeling that they have not reached a fair settlement at the end of the process; although, if assets have been concealed any final order is always under threat of being reopened if persuasive evidence of fraud is later discovered. Nevertheless the law here is unsatisfactory and ripe for a rethink, in our opinion, and clearly we are not alone in that view.

If you’d like to chat about any of the issues raised by the survey or in this blog, do give Gail, Sue, Simon or Adam a call on 01223 443333.

 

Join the discussion 2 Comments

Leave a Reply