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
- 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.
- 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.
- Can you divorce your partner based on the fact that you are in a 'loveless marriage,' when your partner doesn't want a divorce? The answer is no, said the UK's Supreme Court in 2018. It's a seemingly archaic judgment, but the law states that a marriage must have broken down in one of five ways to make a divorce legitimate: adultery; unreasonable behaviour; desertion; a separation of more than two years (given both partners agree); or a separation of more than five years (where only one partner must desire a divorce). The prominence of this case has prompted calls for a 'no-fault' divorce to be introduced which would allow a divorce to proceed immediately without the need to cast blame on one partner.
- The number of divorces of opposite-sex couples rose for the first time in a decade during 2016 according to the Office for National Statistics. The divorce rate was highest among men aged from 45-49, and women aged from 30-39. After same-sex marriage became legal in England and Wales in 2014, the relevant divorce statistics began to trickle through: in 2016 112 same-sex couples were divorced.
- The ruling in the divorce of Tracey Wright and her husband Ian Wright in 2015 demonstrated that a financially-weaker spouse cannot be assured of gaining life-long maintenance payments. Formerly, England and Wales was seen as an excellent place to divorce, since the courts were generous in setting up post-divorce maintenance payments (dubbed a 'meal ticket for life' by some). In the case of Tracey Wright, who had not found work following the divorce, her claim for continued maintenance payments of £75,000 was rejected. Similarly, in 2018, businessman Graham Mills won an appeal against paying his former wife increased maintenance payments (£1,441 per month for life) on the grounds that she had unwisely managed her finances.
- There has been an increase in the popularity of prenuptial agreements following the Radmacher v Granatino divorce case. In 2014, the Law Commission recommended that prenups should be legally binding in divorce settlements, but only after the needs of the separating couple and any children have been taken into account. Nevertheless, Prince Harry and Meghan Markle opted not to sign one.
- There has also been an increase in the number of cases involving allegations of 'material non-disclosure.' Helen Roocroft recently sought to renegotiate a previously agreed separation settlement after discovering that her recently deceased civil partner, property mogul Carol Ann Ainscow, might have made fraudulent claims about her wealth. The case followed on from the successful appeals by Alison Sharland and Varsha Gohil, whose husbands were found to be dishonest in their disclosure of wealth during their respective divorce settlements.
- The death of six-year old Ellie Butler in 2013 put authorities and family judges under a harsh spotlight. Ellie had been returned to her birth parents by a family judge despite concerns raised about her safety, and this error prompted calls for changes to the way childrens' cases are handled. While there were admissions of failings by social services and Sutton council during the inquest, in 2018 the coroner ruled that those failings did not contribute to the child's death.
- Family law no longer qualifies for legal aid, except in cases involving domestic violence or child abuse. Family law organisation Resolution points to two marked trends since 2012's Legal Aid, Sentencing and Punishment of Offenders Act: there has been a decrease in the number of agreements reached after mediation, and a significant increase in the number of litigants without representation. Resolution has been pushing for the planned review of legal aid to take place, but the Justice Minister decided to postpone the review in March 2018.
- In 2018, the Supreme Court ruled that civil partnerships between heterosexual couples were legal, meaning that the option is now available to all couples.
- In addition a High Court judge also ruled that Islamic marriages can be recognised as a marriage within English law. This came in a case where Nasreen Akhter, a solicitor, petitioned for divorce. Her husband, Mohammed Shabaz Khan argued that their marriage was only recognised by sharia law, and therefore the divorce should be blocked. The fact that this argument failed allowed Akhter to make the normal financial claims involved in a divorce. This is something that was previously an issue for the large proportion of Muslim women whose marriages were 'nikah-only' rather than being recognised by a civil ceremony.
- Some certainty is emerging about the residency status of EU nationals in the UK, including the hundreds of thousands of children currently residing here. Those children with proof of five years' residence will be allowed to apply for settled status (at a discounted price of £32.50), while those who have been here for a shorter period will gain pre-settled status, and retain access to the health care, pensions and other benefits they already receive. After they reach the five-year mark, they can progress to settled status.
- Family law is expected to experience some changes in light of Britain's impending exit from the EU. Many of the laws applying to international and cross-border family disputes have come through EU legislation, and it is unclear what will replace them. Prominent practitioners in the field predict that EU laws will be imported for issues like divorce and child maintenance. There are also non-European fallbacks available in areas such as child abduction.