Family

In a nutshell

Lawyers are involved with almost every aspect of family life, from the legal mechanics and complications of marriage and civil partnerships to divorce, disputes between cohabitants, inheritance disputes between family members, prenuptial and cohabitation agreements and all matters relating to children. Whether working in a general high-street practice with a large caseload of legally aided work, or for a specialist practice dealing with big-money divorces, complex child custody cases or international matters, family solicitors are in court a good deal and are fully occupied back in the office.

There is effectively a division between child law and matrimonial law, with many practitioners devoting themselves exclusively to one or the other; others plant a foot in each. Unfortunately, family law is an area which has been seriously affected by legal aid cuts.

What lawyers do

Matrimonial 

• Interview and advise clients on prenuptial agreements, cohabitation arrangements, divorce and the financial implications of separation. This can involve issues like inheritance and wills, conveyancing, welfare benefits, company law, tax and trusts, pensions and even judicial review.
• Prepare the client’s case for divorce and settlement hearings, including organising witnesses and providing summaries of assets/finances, which will require dealing with accountants and financial and pensions advisers.
• Attend conferences with barristers.
• Represent clients in hearings or brief barristers to do so.
• Negotiate settlements and associated financial terms.
  

Child law

• In private cases: interview and advise clients on the implications of divorce with regard to child custody and residence. In some instances this will result in court action. Deal with disputes between parents or other family members over care and contact with children.
• In public cases: represent local authorities, parents, children’s guardians or children themselves on matters such as children’s care proceedings or abuse in care claims. Social workers, probation officers, psychologists and medical professionals will also be involved in cases.
  

Realities of the job

• When it comes to relationships and families, no two sets of circumstances will ever be the same. You will encounter a real mix of clients: some at a joyful moment in their lives, others facing deeply traumatic times. A good family law practitioner combines the empathetic, sensitive qualities of a counsellor with the clarity of thought and commercial acumen of a lawyer. You need to remain detached and unflappable to achieve the result your clients need.
• Tough negotiating skills and a strong nerve are vital as your work has immediate and practical consequences. The prospect of telling a client that they’ve lost a custody battle does much to sharpen the mind.
• A pragmatic and real-world outlook is useful, however you’ll also need to spend time keeping abreast of legal developments.
• On publicly funded matters you’ll face your share of bureaucracy, and it certainly won’t make you rich.
• Matrimonial law is strongly affected by court decisions, which can sometimes take a surprising turn.
• The chances to do advocacy are more plentiful than in many areas of law.

Current issues

October 2023

• A report by the head of the family courts in England and Wales, Sir Andrew McFarlane, ‘Confidence and Confidentiality: Transparency in the Family Courts,’ has recommended that there should be greater transparency about cases that appear in the Family Court. Matters in the past have been strictly confidential, and public confidence in the family justice system has been low. Sir Andrew’s report, however, stresses the need to “maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives.” As part of the recommendations, judges are to publish at least 10% of their judgments (anonymised) each year.
• The introduction of no-fault divorces as a result of the Divorce, Dissolution and Separation Act 2020 came into effect on 6 April 2022. The change, which is the first for 50 years, means that there is no longer any requirement to assign fault when applying for divorce, legal separation, or the dissolution of a civil partnership. In addition, the filing cannot be contested by a spouse. The process also is now completely digital. The new statute means that couples can apply jointly or separately, citing irretrievable breakdown of the relationship. Furthermore, the process is quicker. Because the divorce filings a) do not require fault, and b) can no longer be contested, many of the reasons for requiring a lawyer to get divorced now fall away. What this means is that a couple may be able to get divorced without needing to hire lawyers. 
• At the end of 2022, the Office for National Statistics (ONS) revealed that the frequency of domestic violence against adults between 16 and 59 years had not remarkably changed since March 2020 at the height of the pandemic when the data was last collated.
• The Domestic Abuse Act 2021 introduced important changes to combat this increase in domestic violence. Those changes include: a statutory definition of domestic abuse for the first time, which recognises controlling behaviour, emotional and economic abuse as part of the definition; prevents complainants from being cross-examined by their alleged offenders; and creates a domestic abuse protection notice (DAPN) – for protection immediately after following an incident; and a domestic abuse protection order (DAPO) – which can act as an injunction either prohibiting someone from engaging in certain behaviour, or requiring them to do certain things. While the Law Society has welcomed the move to stop alleged offenders from cross examining their purported victims, it has raised concerns that there may be insufficient lawyers to do the work.
• From February 2023, individuals vulnerable or experiencing domestic abuse can receive emergency immediate assistance from any of the 18 job centres and jobs and benefit offices located throughout the UK. A newly developed postcode checker will inform them of the nearest facility where they can access this service. 
• Legal aid cuts are hitting the Family Bar hard, with funding removed from a majority of cases, except in the event of domestic violence or child abuse. In 2021, the MOJ announced it was investing £3 million in support of people representing themselves in court, including in family courts.
• In addition to receiving work from solicitors, several barristers also operate a ‘direct access’ practice, meaning clients can cut out the middleman by taking their cases directly to barristers without going through a solicitor. Although clients don’t have to pay solicitors’ fees, some barristers charge more for direct access cases given the extra legwork it involves. Stephen Lyon, barrister at family law set 4 Paper Buildings, told us: “Direct access is proving to be a very popular way of resolving disputes, as it means clients and barristers can build a direct relationship, rather than having a solicitor – acting as intermediary – forming the relationship on their behalf.”
• Consultations are underway to update the UK’s surrogacy laws, which have remained largely unchanged since the 1990s. Proposed changes include the creation of a ‘new surrogacy pathway’ that would recognise the intended parents as the child’s legal parents from the point of birth. The report also calls for better regulation of payments made to surrogates with commercial surrogacy still being illegal. The suggested changes also aim to reduce international surrogacy which leads to a higher risk of exploitation of women and children.
• The definition of a psychologist is once again subject to debate because it is not a protected title and can be used by anyone. This follows an appeal for a re-hearing by a mother who argued that a parental alienation expert who spoke in her child’s case was not qualified. Family court president Sir Andrew Mcfarlane has called for changes to what he calls a confusing system.