This article was first published by Solicitors Journal on 01/11/16, and is reproduced by kind permission.
‘Divorce’ has become a buzzword for any forcible separation. A quick Google search generates articles about the UK’s upcoming ‘divorce’ from the European Union or a politician’s ‘divorce’ from their political party. The term implies controversy and dispute.
But oddly, it is no longer fashionable to talk about actual divorce in the same way. For years now, the message has been clear and repeated: divorces should be amicable. Keep it out of court.
Family lawyers know all too well where this message comes from: the government. The drumbeat began in the 1990s when Treasury officials began plotting ways to cut legal aid, the calls for conflict-free divorce have increased since LASPO among the media, politicians, and government agencies.
This message is not just reserved for the general public of course. Family law practitioners hear it too. We are told to steer clients away from the courts. Of course, good lawyers knowing better will not hesitate to advise the court option if it is in their client’s best interests.
What is frustrating about the message of ‘settlement out of court is good’ is that the fairness of any settlement seems utterly unimportant. Divorcing couples are immediately steered into the arms of bitty websites or legally unqualified (and cheap) mediators. And they receive paeans of praise if they settle ‘amicably’ even if, as it subsequently transpires, foolishly. After all, they agreed to it. If only they had sought legal advice in the first place, but that is irrelevant. The short-term cost savings are all that matters to a cash-strapped government.
With legal aid all but gone for family law cases, the government continues to push the idea that marriages can be amicably brought to an end, while rubbishing lawyers at every opportunity and, not so overtly, getting rid of judges in their courtrooms. Court buildings are no longer viewed as trusty places for determining disputes, but rather as valuable real estate to be plundered. We have seen this in action recently as 86 courts close across the country leaving judicial deserts in their place.
Mediation is also one of the tent poles of this approach and MIAMs were made a compulsory part of the divorce process. At least we all thought so – the reality seems to be rather different. Statistics recently released by National Family Mediation (SJ160/39) show that four out of five litigants don’t bother with those supposedly compulsory MIAMs. They prefer to let a judge decide and clog up the courts, or at least those that remain open.
I think this says a lot about the reality of the ‘out of court’ divorce settlements. And the cry from those on high that ‘it’s not about austerity’ is as demonstrably false as the false economy supporting it.
I could not and do not disagree with any of this; but I am a tad nervous about the drift, which may be toward being more open to “unwise” settlements being set aside in the interests of some will-of-the-wisp “justice”.
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When adult parties reach agreement and that agreement is approved by the court (a step which I would abolish, but that’s another story) to enforce it becomes the only fair and just course. To vary it in favour of Party A is to do injustice to Party B. Does anyone disagree and if so why?