hils.org.uk

Cohabitees who are separating now have greater clarity about how their assets should be shared following a Supreme Court ruling today.
In welcoming the ruling, Law Society President John Wotton said: “This judgement moves the law forward because it allows courts to reach a view about what the parties intended, and what a fair outcome should look like. However, the meaning of ‘fairness’ in cohabitation law is not the same as fairness in marriage. Today’s verdict only goes so far in providing cohabiting couples with clarity about what will happen to shared property on a relationship breakdown. The fact is that successive governments have failed to legislate on the rights of unmarried couples living together, despite the Law Commission’s proposals for reform, which we have supported.
Many cases could still end with what most people would consider an unfair outcome. The confused state of the law continues to cause stress, litigation and costs – and hence ultimately is damaging for families and children.
It is crucial that couples who are thinking of buying a property and living together take legal advice from a solicitor to reduce the likelihood of potential problems later. Solicitors are highly experienced in dealing with house purchases and helping people properly set up their financial arrangements. A solicitor will help to avoid unforeseen problems, about legal rights in a relationship generally, and can discuss how rights might change as a relationship develops, such as children or marriage.”
9 November 2011

The Law Society today said radical and sustained change to the family justice system could not come soon enough, in response to the most comprehensive and important review of family justice since 1989. The Society was responding to the Final report of the Norgrove review of Family Justice, published today.
Law Society Chief Executive Desmond Hudson said: “Children are at the heart of family justice and their welfare should be paramount. Today’s delays in public law cases amount to a national disgrace – many children in particular are being failed by the system. The report’s recommendations will need study and action by all parts of the system – judges, lawyers, social workers, guardians and by the Government too, because many of these changes will need resourcing. Even in this straightened times, the Government has to find the money.
“Legal aid cuts will lead to more people going to court unrepresented, and family courts slowing down even further. More people will have completely unrealistic expectations of the process because they haven’t had a family solicitor’s advice.
“The report’s overall aims should attract wide ranging support. We share its recognition of the need for radical and lasting change within family justice.
“Despite the huge commitment shown by many of those working in family justice, the system is failing. Cases are taking too long, causing harm to children and families.”
Detail
The Family Justice Review (also known as the Norgrove Review) final report covers three main areas – public law (taking children into care), private law (separation, divorce, contact and residence) and the creation of a Family Justice Service. The Government’s response is expected around the end of the year.
Public law
In 1991, when the Children Act 1989 came into force, it was expected that care proceedings would take on average 12 weeks for the courts to deal with. At the time of publication of the review’s interim report in March, the average care and supervision case took 53 weeks: this has since increased to 56 weeks. These delays are affecting 20,000 children. The review calls for a statutory six month limit on care and supervision proceedings, to be extended by the judge in only exceptional circumstances:
Desmond Hudson said: “To effectively halve the time which cases take now will require additional resources – more court time and more judges’ time. It will also require more time from family solicitors, but that is under threat from cuts in legal aid fees and scope. We welcome the report’s recommendation that the MoJ and the Legal Services Commission should monitor the impact of the reforms carefully, because the supply of properly qualified family lawyers is vital to the protection of children.
“The review panel praised the Law Society’s accreditation scheme for family solicitors.”
In response to other public law recommendations:
The Law Society welcomes the recommendation to retain the tandem model which provides children in proceedings with representation through both a solicitor and an experienced social worker (known as a guardian). The tandem model is an important safeguard and, as the report recommends, should be retained with resources carefully prioritised and allocated.
The Law Society also welcomes the recommendation to remove charges to local authorities for public law applications and to local authorities and Cafcass for police checks in public and private law cases, as an unnecessary waste of scarce resources.
Private law
Delay also remains an issue in private law, with the average case duration of 32 weeks in 2010. Around 90% of separating and divorcing couples agree arrangements for their children without going to court. The 10% who do go to court are inevitably the most intractable and bitter disputes about ‘contact’ and ‘residence’, terms which the review says should be discarded in favour of the promotion of Parenting Agreements.
Desmond Hudson said: “Litigation should be regarded as a last resort. Most cases settle prior to court and family solicitors play a significant role in negotiating out-of-court settlements. Cuts in legal aid will mean that more couples will go to court and represent themselves, without any understanding of the process or with unrealistic expectations about the outcome.”
The report calls for greater diversion of cases from the courts through increased use of family mediation to reach parenting agreements.
The Law Society agrees that family mediators should be required to meet high standards – currently there are no standards for privately-funded family mediation, although there are for mediation paid for under legal aid.
The Family Justice Service
The report calls for greater strategic leadership and co-ordination of the disparate components of family justice through the creation of a family justice service overseen by a Board.
The review also call for a single ‘family court’ (to replace the three tiers of magistrate, county and high courts) and for greater judicial continuity in both private and public law cases.
Desmond Hudson said: “Proposals which should lead to greater leadership, direction and
co-ordination within the family justice service deserve our support, but institutional change can be expensive and time consuming and should not hold up change unnecessarily.”
The Law Society supports the proposal to create a single family court with specialist judges who are able to commit to continuity, which is essential to better case management and faster justice.
Implementation
The report quotes the Law Society’s earlier submission to the review:
The proposals are ambitious and they deserve resourcing accordingly: half measures will not succeed, and the opportunity will be lost. It is better that reform is planned and implemented properly, than change introduced piecemeal and quickly.
It is vital that these changes are properly planned and resourced.
The Law Society looks forward to playing its part in working with stakeholders to achieve change, and we plan to host a series of multi-agency events and discussions in the new year, prior to legislation being introduced by the MoJ in May 2012.
3 November 2011