Innovating for change

The end of no-fault divorce is just the start of changes being driven by practitioners and digitisation, as Julian Hawkhead explains

When reflecting on what the future looks like for family law, you cannot escape the past and the fact that we have been relying on the same laws – subject to the odd tweak here or there – for decades. 

But modern families have changed and will continue to do so, meaning that a review of the law to ensure it is fit for purpose is
long overdue. 

Reform 

Thankfully, we have made some headway. After some 30 years of on-off campaigning by organisations such as Resolution and other family support services, fault-based divorce will soon be a thing of the past. 

Next autumn, we should see the first divorce applications submitted under an entirely no-fault regime where people will no longer be required to lay blame and identify examples of behaviour to get a divorce. 

The firm belief of reformers, based on international research, is that ending the ‘blame game’ will reduce the levels of animosity between couples so that they can approach financial negotiations or discuss arrangements for the children in a more constructive way. 

Opponents to reform believe that taking away blame will make it easier to divorce and will undermine marriage, and thus the fabric of our society. However, there is no evidence of this being the case or that a no-fault regime leads to long term divorce numbers increasing. 

There is still much-needed reform for cohabiting couples. An increasing number of family units are couples who have chosen not to enter into the formal arrangements of a marriage or civil partnership. There is little legal recognition of their relationship and minimal legislation in place to protect the rights of the weaker financial party should the relationship end.

Instead, only limited entitlements are available through property and trust law to those fortunate enough to have arranged their financial affairs (deliberately or by accident). 

A reform in law is needed to give rights to those who are otherwise left financially vulnerable, whether in the form of capital provision to provide them with a start on the road to independent living; or income, even for a limited time period. 

I see the legal profession, and other organisations that are interested in the wellbeing of people going through a relationship breakdown, continuing to campaign for this reform. With the increasing number of cohabiting couples, it could draw even more public support than the recent divorce reform.

Over the coming years, it’s not only the fundamental laws themselves that will change but also the routes through which they are administered and practised. 

Today, the family courts have become completely clogged up, not helped by the withdrawal of legal aid, which added to the burden as judges help members of the public navigate their way through the law and the regulations. This inevitably takes more time and creates an uneven playing field between those who can afford legal representation and those who cannot. 

I don’t believe the court system is fundamentally broken, but it’s difficult to see how it can continue long term in its current form. It needs a significant rethink of which cases require court intervention and how they are managed, and those cases that would be better shepherded into alternate, less adversarial routes. 

The profession is not often regarded as the most innovative, often being characterised as change-resistant and risk-averse, but in family law we are open to new ideas. And there is clear recognition among family lawyers that the court route does not always provide the best outcomes. 

Mediation had some early takers back in the 1980s and 90s. Collaborative family law was the next new thing in the first part of this century. In more recent times, we have seen an increasing number of private arbitrations and dispute resolution hearings. 

These have helped take contested cases out of the court environment and into an arena where those who can afford it have access to experienced lawyers, using their knowledge and skills to promote negotiated settlements or making binding awards in a more comfortable environment than most would experience in a local family court. 

However, these processes are voluntary and it’s fair to say that some lawyers and courts have paid lip service to the requirement that intended litigants first explore mediation as
an alternative. 

Unless a concerted effort is made by all stakeholders in the family justice system to promote the benefits of resolving matters out of court, leaving that arena for only the most contentious and intractable matters, then people entering a time of uncertainty will more likely opt for the traditional route which is perceived to be tried and tested. 

Digital world

One of the most significant shifts I foresee is the leap into the digital world as the court further develops its online offering. Throughout the covid-19 lockdown, the courts continued to operate with hearings conducted by telephone or video conferences (albeit with strains on capacity and technical hitches). 

Although the courts are reopening for hearings, I hope the court service will continue to work on developing its online services, a project I know they were keen to develop pre-pandemic. 

The world that has emerged from lockdown is more focused on remote working and willing to embrace the benefits of virtual meetings. I can see a day coming where the administrative directions hearings are conducted remotely by judges either receiving oral submissions via video conference calls or even written submissions in real time to consider. 

Contested hearings, particularly those with oral evidence, a need for cross-examination or multiple witnesses will continue to be conducted in person where possible. The subtleties of body language and the greater sense of being tuned in to what is happening within the four physical walls of a courtroom mean litigants will have an increased sense of justice being administered fairly. 

So how are family lawyers leading change? Like many others I have spent the last six months working from home and it has become the new normal for me. Indeed, there have been many times when I have asked myself, why would I ever want or need to change? 

It’s easy to say that I could probably do my work as the senior partner largely successfully from home, contacting people via video call, free from many of the distractions of office working and avoiding the commute time in peak traffic. 

But we are social animals and will always benefit from other people’s company to share ideas, to work together and to socialise. For our firm, we are developing a hybrid approach allowing our people to enjoy the benefits of working from home along with office space available for collaboration and face-to-face time when needed (meeting all covid-19 requirements).

We are also continuing to explore more efficient ways of working, rethinking the traditional ways of working as a team and how we interact with our clients. There is no doubt technology, our smartphones and online transactions are going to feature heavily in the next chapter.

However, our world has changed and with a second spike of covid-19 and further lockdown possible, I know that we will not return to the way we worked at the beginning of this year when this pandemic finally ends.

If we are to serve our clients well, the legal profession and ancillary services must continue to strive to innovate and listen to what our clients want.  

Julian Hawkhead is the senior partner at Stowe Family Law stowefamilylaw.co.uk