Agreements, courts, mediation and domestic abuse – May family law news roundup

The importance of finalising agreements

A Family Court case has demonstrated the importance of couples legally finalising financial agreements reached between them on separation or divorce.

In the case, the couple agreed on a division of their assets in 2012, but the agreement was never legally finalised, whether by the drawing up of a written separation agreement, or the obtaining of a consent court order, setting out the agreement.

Divorce proceedings were not commenced until 2019, by when the husband’s financial assets had increased substantially. Considering that she was entitled to more, the wife applied to the court for a bigger settlement.

By the time the wife’s application got to court the couple had expended more than half a million pounds in legal costs. Commenting upon this the judge, Mr Justice Holman, said: “The tragic irony is that an expenditure of perhaps a few thousands of pounds of legal costs in 2012 [on finalising the agreement] might well have saved and avoided the catastrophic expenditure of over £500,000 now.”

You can find out more about separation agreements here, and about consent orders here.

Increase in family cases

The Ministry of Justice has published its latest statistics for the Family Court, for the quarter October to December 2020.

The main headline from the statistics is an increase in the number of cases started in the Family Courts.

The statistics showed that there were 68,634 new cases started in Family Courts in October to December 2020, which was up 6% on the same quarter in 2019. The increase was due to increases in most case types: domestic violence (21%), financial remedy (8%), matrimonial (5%) and private law (3%) cases. However, there was a decrease in public law (care proceedings) case starts.

Annually, there were 264,091 new cases started in Family Courts throughout 2020, which was similar to 2019.

Remote hearings to continue after pandemic

The President of the Family Division, Sir Andrew McFarlane, has published a letter regarding the recovery of the Family Court from the pandemic.

In the letter, he explained that as Covid restrictions are relaxed, a move towards more face-to-face hearings will begin, whilst at all times having due regard to considerations of safety.

However, he also said that: “The gradual return to face-to-face hearings will not be the end of remote working, indeed some form of remote working is likely to be required for the foreseeable future and we have learned that, in some cases, remote working is the most efficient way of dealing with some hearings.”

Mediation voucher scheme

The Ministry of Justice has launched a voucher scheme to help families resolve disputes outside of court.

Under the scheme, around 2,000 families will be able to apply for a £500 voucher towards the cost of mediation, which is usually charged for unless one of the parties has access to legal aid.

The scheme is available for families seeking to resolve private law or financial matters relating to children – for example, child arrangement orders or financial disputes regarding a child’s upbringing.

John Taylor, Chair of the Family Mediation Council said:

“This government investment in mediation is much welcomed by the Family Mediation Council. It will help separated families agree solutions that are best for their children, taking into account what is going to be important for them as they grow up.

“Family mediation is a proven cost-effective way to resolve differences following separation. This voucher scheme will make it even more accessible, and will help families resolve issues for themselves, without having to go to court.”

For more information about mediation, see here.

Guidance on approach to domestic abuse

The Court of Appeal has given guidance on the approach that the Family Court should take when dealing with allegations of domestic abuse in cases involving disputes between parents over arrangements for their children.

The guidance given by the Court of Appeal focussed in particular on the issue of coercive and controlling behaviour, where one party seeking to restrict the other, over a period of time. Coercive and controlling behaviour can take many forms, including physical assaults, preventing the other party from spending time with their family and friends, or controlling them by restricting their access to finances.

The Court of Appeal emphasised the importance of this type of behaviour, saying that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The guidance has been welcomed, although some fear that an opportunity to go further has been missed. The domestic abuse charity Women’s Aid commented:

“The Court of Appeal has given guidance that old-fashioned views about controlling and coercive behaviour are no longer acceptable in the family court and that judgments that fail expressly to consider the relevance of coercive control may be appealable.

“However, the Court of Appeal failed to use the opportunity given to address the deeply entrenched pro-contact culture … and send a clear message that culture change is necessary to protect women and children from the cycle of abuse that can have life-long and sometimes deadly consequences.”

For more information about domestic abuse, and what you can do to protect yourself, see this page.