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OCTOBER 2013
Divorce Law
109
Birmingham Law Society’s Family Law Committee.
What are the main challenges you face when working on divorce cases?
The client is usually in an emotional state and cannot see beyond the immediate situation. There is more of a sense of panic where a child is involved and the parties often lose sight of the fact that they were once close enough to become parents.
How do you navigate these challenges?
I try to encourage my clients to put themselves in the shoes of the other party and understand the panic they will also be feeling. At the same time I try to do the same and ask myself how I would feel in this situation. Whilst there are times that I have to stand back and take a more robust approach in the interest of my client my job is to ensure both parties can get on with their lives as quickly as possible.
Potentially, how complex can divorce cases get?
Unless there are jurisdictional issues
divorce cases don’t have to be complex. However, if there are children involved cases can become more difficult with both sides becoming entrenched, causing the case to become increasingly expensive.
What advice would you give parties to avoid costly and complex divorce cases?
There are alternative dispute resolution methods such as mediation. However, lawyers should not be excluded. Ideally it should be a three way process – party, lawyer and mediator/third party arbitrator.
You may think that a pre-nuptial could avoid a complex divorce, and you may be right, but in jurisdictions of England and Wales a pre-nuptial could still cause a case to be more complex. It is important to remember that in our jurisdiction cases are still determined on the basis of what is fair not what is binding.
Have you seen much of an impact from the Legal Services act yet?
The main impact is the increasing amount of litigators appearing in court in person. The problem is that whilst the LSA has removed funding from public to encourage access to legal advice, at the same time they’ve cut down on court staff and there is currently a major reshuffle in the whole family court system. I am concerned this is a house of cards waiting to fall.
How do you see the future of divorce law progressing?
There is no doubt that many parties will
choose to get a divorce online, will settle their own financial arguments and that lawyers will be used sparingly other than in perceived complex cases. This will cause problems from an insurance point of view – how far can lawyers go without the full facts and will the public be prepared to take responsibility if it goes wrong?
Is there anything you would like to add?
There is no doubt that family law and the availability of public funding needed to be reformed. As lawyers we need to be more cost effective and deliver services to clients with maximum efficiency. The issue is that the government has sought to persuade parties that mediation is the answer and that lawyers are the problem. The reality is that we are both part of the solution. LM
contact: Mary Kaye
Partner, Family DD: 0800 763 1687 E: mary.kaye@sghmartineau.com