Tuesday, June 8 1999
The latest divorce reforms may surprise some couples,say Nigel Shepherd and David Salter
The Times (London)
If lawyers and politicians are struggling to keep pace with recent changes in family law, what is it like for the divorcing couples - 150,000 a year, many with families - who have to deal with the end results?
The Lord Chancellor, Lord Irvine of Lairg, is expected to announce the date next year on which the remaining parts of the Family Law Act 1996 will be implemented. This will bring a complete overhaul of the system, ending the so-called "quickie" divorce and introducing a divorce over a period of at least a year after compulsory information sessions.
The Government's recent Green Paper, Supporting Families, proposes other significant changes for families. These include the idea of making pre-nuptial contracts enforceable, albeit with safeguards that would render them ineffective in most cases because they would be ignored if any children were involved.
The sheer pace of change has inevitably let to anomalies. It took serious lobbying by the Solicitors Family Law Association (SFLA) to ensure that family cases were excluded from the proposed "no win, no fee" arrangements.
What of the effects of the well-intentioned "no fault" reforms? Their impact will surprise, and in some cases anger, an unprepared public. At present, a divorce can be obtained in as little as three or four months. Under the new Act, this period will be at least a year, including three months' "cooling-off" time after the compulsory information meeting. Where the couple have children, or one of them objects to the divorce, the total period will be extended to 18 months and possibly more if the financial arrangements have not been sorted out.
Last week the Lord Chancellor's Advisory Board on Family Law, in its second annual report, concluded that the information meetings were generally helpful, but that it would be best if they were face to face and that they should "go beyond the uniform and passive delivery" of information and be more sensitive to a couple's priorities, which vary widely. This finding will come as no surprise to the experienced family lawyer, who has traditionally been the first port of call for information when families split up.
A further main portion of the reforms is to encourage mediation: people eligible for legal aid will have to visit a mediator to see if mediation is suitable for the, and they won't be able to get legal aid for solicitor negotiations on proceedings until they have done so. But the board's report sounded a warning note: from research so far, the proportion of couples choosing mediation is "very small" and much more information is needed. Perhaps more resources should be allocated for legal advice in support of mediation. Limited legal aid before, during and after mediation should help to avoid mediations breaking down for want of some timely and sensible advice, but will enable the family lawyer to step in quickly if action is required.
Parts of the Family Law Act already in force are causing resentment. Since November 1, 1998, the courts have been able to impose a lump sum order on the payer of maintenance against his (it is usually the former husband) wishes, even though capital claims may previously have been finalised.
The principle of trying to effect a clean break is laudable, but it can work unfairly, particularly as the new provision is retrospective, in that it applies to maintenance orders that may have been agreed as part of an overall settlement years earlier. A husband may have honoured all his maintenance obligations over the years while making provision for his retirement through savings or a pension, only to find his legitimate nest-egg is under attack in circumstances he could not have foreseen.
Also in late 2000, or even 2001, the pension sharing laws should come into force. The Government has said that these will not be retrospective, so some canny husbands may seek an early divorce before the legislation kicks in, while wives may drag their feet in hope of what they consider to be a fairer share of the pension.
Finally, full tax relief for pre-March 1988 maintenance payments will be abolished next April, unless one or both of the parties is aged 65 or over on April 5. This will have a significant impact not only on the payers, but also on recipients, who will no longer suffer tax on the maintenance they receive.
As the consequences of these fundamental reforms dawn on couples in unsteady relationships, we can expect a rush of quickie divorces to beat the 2000 deadline, possibly leaving people to repent at their leisure. The SFLA hopes that its new accreditation scheme will assist the public to find specialists to help them through this morass of changes. Family lawyers must be prepared to respond to the public reaction as they will be in the front line.
The authors are partners in the family law department of Addleshaw-Booth.
Copyright 1999, Times Newspapers Ltd.