The start of the year is a time when we reflect on the past year and look forward to the next 12 months. So as we start 2019, I have been taking time to think about what we can expect for the area of family law in the next 12 months.

Here are three of my predictions for this year:

The increased use of family arbitration

Family arbitration is a form of dispute resolution where parties agree to a third party making a decision about their financial settlement or, in some cases, the arrangements for children. This third party, the arbitrator, acts much like a judge who considers the evidence, views of those involved and legal arguments and makes a binding decision, known as an “award”.

I think it is fair to say that the uptake of family arbitration has been slow, however, my prediction is that this year we will start to see the use of family arbitration take off. This is mainly due to the growing dissatisfaction and frustrations with the traditional litigation approach through the Family Courts. I have spoken to a number of family lawyers and district judges and wherever they are in the country they share the same view that the Family Courts are at breaking point. Anyone who has gone through the Court process in family cases, whether for matters relating to their children or finances, will tell you of the delays in waiting for a hearing and when that hearing comes round it has not been allocated sufficient time.

This is why those practicing arbitration should be taking advantage of this growing frustration and shouting from the rooftops about the benefits of family arbitration, for which there are many. For example, the parties can choose a qualified arbitrator that best fits their particular needs and set out the specific issues that they want addressing resulting in less time wasted on other issues. In addition and, probably most importantly, arbitration allows parties to set their own timetables which, no doubt, would be much quicker than those set by the Court.

Guidance on the use of recordings in the Family Court

Nearly all of us carry around with us, wherever we go, a device capable of making high quality audio or video recordings in the form of our smartphone. Other covert recording technology is also becoming increasing sophisticated and affordable. It should therefore be of no surprise that the Courts are increasingly being asked the question whether covert recordings can be used as evidence. What is surprising, however, is that the Courts and lawyers have no real guidance on the use of such recordings within Family proceedings. As it stands, the Family Procedure Rules allow the Court to “control the evidence” and so ultimately it will be up to the Judge to decide whether to permit the evidence or not. This, in my experience, leads to an inconsistent and, therefore, unpredictable approach. Comprehensive guidance on this is therefore needed and I hope and think that this guidance is not far off.

I must confess that this is not a wild prediction as the Family Justice Council have said that they will be publishing guidance on this issue in due course, following an invitation to do so by Sir James Munby during his tenure as President of the Family Division, back in October 2017. We are promised that their publication will provide guidance on the use of recordings and distinguish between recordings of children, other adults and professionals. I am sure this much needed guidance will be welcomed by family lawyers and the judiciary alike.

The introduction of no-fault divorce

Thanks to the efforts of many family law professionals, Resolution and others, the last year saw a real momentum in the pursuit of a change to the law which currently requires one party in a divorce to blame their spouse, if they do not want to wait at least two years from separation before starting the divorce process.

The proposed change in law, to introduce a “no fault divorce”, is aimed at reducing the conflict between separating couples and simplifying the current divorce process. It would also avoid situations such as the well-publicised case of Tini Owens, a wife who was refused a divorce by the Supreme Court because she was not able to demonstrate that her marriage had broken down irretrievably when citing allegations of her husband’s behaviour.

In Autumn last year, the Justice Secretary David Gauke MP announced a consultation on the proposed reforms. This consultation closed on 10 December 2018 and we await the results. Whilst there are views that introducing ‘no fault divorce’ attacks the institution of marriage, the tide of opinion seems to be supportive of the change and calls from campaigners and many MPs are for this change to be introduced quickly. However, we shall have to wait and see what progress is made in the next year.

If you would like to speak to a member of the team regarding any of the issues raised in this article, or any other family law matter please feel free to contact: Chris Burns, who is the head of our family law department; Sophie Arrowsmith a member of our team in the Leeds office Richard Buckley who is a member of the team in the Sheffield office or Andrew Smith who is a member of our York office.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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