Marilyn Stowe Blog

Family law reform: is it out of this world?

The Milky Way Galaxy is a spectacular collection of millions of stars; together, they form a bright, shining band across the night sky. On Wednesday night, I felt as if I was watching family law’s Milky Way. I was at a party in London, at the invitation of Nicholas Mostyn QC, to celebrate his ascension to the High Court. He is becoming Sir Nicholas Mostyn, one of Her Majesty’s Justices, who will henceforth use his fiercely brilliant brain adjudicating the cases that come before him. (Heaven help those advocates who will appear before him, because I don’t envy them their task of persuading him in their favour, one bit!)

I stood in the garden at Middle Temple, in the heart of legal London, sipping pink champagne and helping myself to fish and chips served in paper cones. I felt like a legal David Attenborough, watching stars from London’s family law firmament up close and personal. Of course they were all in dazzling, sociable mood. Every time I turned round I seemed to be bumping into this Lord Justice, that leading counsel, this famous solicitor or other, all having a jolly good time.

The party went on and when I left, I was a lot dizzier than when I had arrived –and it wasn’t from the champagne. I had been invited for the evening into the heart of the Family Law Establishment, which appears to be thriving. Now I am looking forward even more to the opening of Stowe Family Law’s newest office, in Central London, later this year.

The next day I attended a seminar given by some of the barristers at Nicholas Mostyn’s chambers, 1 Hare Court, and I was glad I’d stayed in London to attend it. It was an opportunity to hear from the barristers of those chambers, who are hoping to assume the mantle that Sir Nicholas is now passing on. And very interesting they proved to be.

A debate, chaired by the legal commentator Joshua Rozenberg, provided the opportunity to hear from two rising stars: Nicholas Cusworth QC and Nichola Gray. We also heard from Lord Justice Munby, Chairman of the Law Commission and Baroness Butler-Sloss – plus, of course, from the ubiquitous Sir Nicholas Mostyn!  It was interesting to listen to them speak and to hear the opinions of those who have clearly had a successful life on the Bench, those who are coming to it with enthusiasm, and those who still aspire to it and who champion the underdog.

In other ways I was quite disappointed by what I heard and saw. It wasn’t too dissimilar from the feelings I had during the years that I was the Chief Assessor of the Law Society’s Family Law Panel. Despite the efforts of the Law Society and of Resolution, an association of family lawyers, lawyers from outside London didn’t seem to be getting a serious look in or even be seriously appreciated for their work. At the same time, the opinions of London-based “Magic Circle” lawyers and judges counted for a lot.

Take, for example, the present agenda of family law reform, whether in relation to prenuptial agreements or reform of the ancillary relief system. The present agenda fixates upon the caseloads of Central London and the jurisprudential views of the Great and Good, who seem to be able to decide for us all. However many of them are themselves living lives of the greatest privilege. At worst, they seem to have little experience of what life is really like for the rest of the country. At best, they don’t publicly demonstrate a sympathetic understanding of what life is like for the rest of the country.

I suppose, assuming my “David Attenborough” role again, that I am a product of a very different family law system: the one that is located outside the M25. There lawyers practise, for the most part, day to day pragmatic law in County Courts. They recognise that clients do not have endless pots of money to burn on litigating the finer points of law. (Outside London, of course, the lawyers’ fees are also considerably lower!)

We have district judges and circuit judges, who serve the public faithfully until they retire, but who are rarely knighted. Day in and day out, they tackle exceptional workloads of “ordinary” cases, involving everyday people. Relatively few money cases feature assets sufficient to “depart from equality”. They use the current law in place and use it well, because it does work and it allows them freedom to sort people out. They know that social change is happening across the country. There are far more couples living together with families than ever before. Which subject do you think is most important to them: the legalisation (or not) of a relatively small number of prenuptial agreements, the reform of good divorce law that works for millions of people, or the possibility of cohabitation legislation?

In truth, nobody I know sees any great need for spending masses of taxpayers’ money considering whether or not to legalise prenuptial agreements. Nor are they concerned with codifying financial law so that it is more formulaic, continental and so that it gives “big money” clients more certainty by excluding certain types of assets. This is because provincial lawyers know that to meet the needs of all the family, it is often the case that every type of asset is desperately needed. On the High Street, a formulaic approach on the High Street would result in substantial injustice.

I believe that what we need is far more dialogue. What we have right now is simply insufficient. For example, if the reform of ancillary relief law does proceed, and a formula that excludes certain assets comes into play: which one of us wants to tell a wife, who has four children and no assets except the husband’s inherited house, that she had better make her application to the local authority for priority housing?

Anyone?