The Ministry of Justice has published the court statistics for April to June 2014 and the same have shown that the number of cases started in the family courts in April to June 2014 dropped 19% to 57,720 compared to the equivalent quarter of 2013.
The full report can be found here.
What these statistics do not show is why a drop in family court cases has occurred.
Since April 2014 the new Family Procedural Rules have provided that it is compulsory in all but very urgent or rare cases for any Applicant to undergo a MIAM (mediation information assessment meeting) before issuing any family law application in relation to finances or children.
Whilst increasing parties’ awareness of non-court options to resolve disputes on divorce can only be a good thing the reality is that mediation will only work if both parties are willing and able to commit to the process. Sometimes due to the parties’ relationship, their own individual personalities or the complexity of the case mediation may not be a viable and/ or sensible option.
Mediators can be very helpful in resolving disputes between parties but they have their limits and one important one is that they cannot give specialist family law advice or the specialist accountancy or pensions advice which is sometimes required.
Changes to the rules
The change in the rules appears to largely ignore the fact that there are other non-court options on divorce if parties cannot agree matters between themselves such as collaborative law or engaging in a voluntary process of financial disclosure and negotiation using family law solicitors. Collaborative law is a relatively new way of dealing with financial disputes.
My own experience is that the change in the Family Procedure Rules has had relatively little impact in terms of parties deciding whether or not to make an application to court about an issue regarding children or finances on divorce. The vast majority of clients were trying and continue to try other options before proceeding down this route in any event. A good family law solicitor will discuss mediation and all other options with the client at an early stage. For the minority of cases where voluntary negotiation or disclosure is not explored then there is usually a very good reason, mediation is unsuitable and the MIAM becomes little more than a box-ticking exercise.
The bigger issue, I think, is in relation to funding for family law cases. With legal aid having been withdrawn for the vast majority of clients it is perhaps inevitable that there will be a dip in the number of applications. Whether or not the reduction should be perceived as a good thing is debateable against this background.
Where applications are being made in respect of children or financial issues on divorce there are an increased number of people acting for themselves, known as litigants in person. This brings its own problems and can often lead to delay in cases as one or both parties fail to prepare for hearings properly because they are unaware of the requirements or choose to ignore them (often without sanction).
A recent Law Commission report raised (amongst other things) possible ways of increasing certainty in the outcome of financial family law cases by using a formulaic approach to establishing the financial needs of the parties. This may well be motivated by the increase in litigants in person and a wish to simplify the process and make it more “user friendly”.
It is difficult to argue with this aim in principle but the reality is somewhat different. A formulaic approach (if it is even possible to devise one) would almost certainly mean that in some circumstances there would be an arbitrary and unfair outcome. The difficulty and the beauty of the current family law system is that the court has discretion. The judge must have regard to the Section 25 factors but ultimately can take into account all of the circumstances and there is usually a cross check by the judges to consider whether or not an outcome is perceived to be fair.
In conclusion it is always a sensible idea to consider whether or not mediation or another form of voluntary dispute resolution would be suitable for you and your case. Consideration should be given about the practicalities of each option as well as the cost effectiveness. You can and should consider your options with a family law specialist. If there is a potential international aspect to your case then it is even more important you take legal advice. In certain circumstances a delay in issuing divorce and financial proceedings in England and Wales to engage in a voluntary process may lead to the courts in England and Wales lacking the ability to deal with your case in the future if, for example, divorce proceedings are issued in the meantime in another jurisdiction. This could, in turn, have a very significant impact on your financial settlement. Please see our international family law page for more information.