To FPR Or Not To FPR, That Is The Question?

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A survey recently carried out by Grant Thornton UK LLP (http://www.grant-thornton.co.uk/Global/Publication_pdf/Matrimonial-Survey-2012.pdf) is without a doubt an interesting read, assigning facts, figures and pie charts to our otherwise dull legislative lives. However it does beg the serious question of whether it all matters? The survey asks 139 family lawyers their view on whether or not the Family Procedure Rules 2010 has impacted upon their work. How about asking ‘Joe Blogs’ or the milkman those very same questions? What do the Family Procedure Rules mean to them, do they find them readily available and understandable? After all it is they who will have to issue their own proceedings come April and the changes to legal aid.  

I couldn’t agree more that the Recession is having an affect on people separating, divorcing and issuing applications for Financial Orders. The statistic that “35% of respondents stated that the average value of the total family assets distributed was less than £500,000…” Although I cannot comment upon percentages I am surprised that so many separating couples have that much money to re-distribute! Despite the continuing plethora of case law giving guidance on ‘big money’ cases, it is all so far away from reality and the every day families we see in practice and in reality the debts that we are redistributing opposed to the assets! No wonder the Husbands (usually) feel aggrieved that the “Wife is getting the house” and the Husband is seemingly “walking away with nothing” because in reality there is nothing to walk away from! The equity in the home is not enough to re-house the Wife, children and the Husband. Unless of course you are Mr Andre and Miss Price [insert other ‘celebrity’ or footballer name as appropriate]!

 What areas require a change in legislation?

High up on the graph, is “Cohabitation”. The difficulty in this area is that some people are still of the belief that “common law wife/husband” mean’s something. It doesn’t. Also the individual going head first into a transaction in love, and coming out of it out of love. All of a sudden it does matter who contributed what and whether or not it was intended that they were to be joint tenants. We as lawyers can shout from the roof tops and include it in Christmas Crackers as a “Myth or Fact” question, that there is no such thing as a “common law marriage” but there is nothing we can do to stop people “following their heart”. If parties are not prepared to commit to one another through marriage, why should they benefit from the financial commitment that inevitably follows it? What amendments does the law need? Next up for debate is ‘Alternative Dispute Resolution’; Mediation is a pre-requisite to issuing Court proceedings; some think this may help. Others in practice think it’s a hindrance. As a solicitor you get to know your client and whether or not Mediation will be suitable, yet you are not able to make that judgement call. Mediation may be of assistance to draw up Financial Consent Orders, but there is no provision to draw up a Children Act Consent Order say for contact. Therefore there are no repercussions and it is for all intents and purposes a waste of time when one party needs the security of an Order even if it is agreed.

Collaborative law in theory also sounds like a winning idea; if you can afford to pay for two solicitors to sit around the table for an afternoon arguing the toss on your finances. Like everything there are pro’s and con’s, it may be cheaper than going to Court and instructing Counsel but it doesn’t provide the independence of a Mediator and sounds to me like an episode of Ally McBeal. Collaborative law is still in its early days and in my view the ‘pro’s’ are yet to have their time to shine. (Please contact Dawn Baker of our Family Department,Preston for further information on Collaborative law).

Arbitration; does an already complex system and set of Rules require more options on how to resolve and who they should be resolved by? And would Arbitration potentially make our English Court System extinct?

In times of Recession, “back handers”, weekend work and “foreigners” are all terms we lawyers are hearing more often, the difficulty has always been and will always be proving it, although in one matter I am dealing with I have been presented with photographs of cash in a safe! Is that all the proof we need? Perhaps more guidance could be useful in this area but forever bearing in mind the chances are come April, the Courts are going to be dealing with Self Represented Parties (the new term for Litigants in Person) and so any guidance on what can and cannot be disclosed and/or relied upon needs to be aimed at the lay person.

But then again, the luck of the draw all of which depends who the Judge is on the day! It is notoriously known that Southern tribunals’ prefer Mesher Order’s and Spousal Maintenance whereas Northern tribunals prefer a Clean Break Approach.

All of which means absolutely nothing to Joe Blogs and the milkman.

 

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