There are currently several radical changes occurring in the family law field. Although all these measures may not yet be in force and may not be for some years, they are important developments which need to be borne in mind in determining how and at what time matrimonial matters should be decided.

Mediation

Traditionally legal disputes, whether in the family arena or involving general civil matters, have been resolved by adjudication by a Court upon the basis of evidence which is given in a structured Court environment. Many such disputes have always of course been capable of settlement before reaching trial but if the parties themselves could not reach a resolution of the issues, the only alternative historically has been for the Court to decide the matter, often at great cost to the parties and after prolonged periods of time waiting for the matter to come to trial. In more recent years a growing desire to achieve alternative means of resolving such disputes has manifested itself. Increasingly in more recent years what is known as mediation has become prominent and a well recognised means of addressing and hopefully resolving disputes without the need for Court intervention.

Family mediation is defined as "a process in which an impartial third person assists those involved in family breakdown, and in particular separating or divorcing couples, to communicate better with one another and to reach their own agreed and informed decisions about some or all of the issues relating to or arising from separation, divorce, children, finance or property". Mediation must be distinguished from counselling. Mediation is intended to enable couples to meet face to face to resolve their differences over issues relating to the matters referred to above with the assistance of a trained mediator. The primary concern is not therefore to save the marriage, whether or not this may be a possibility. Issues of reconciliation and saving the marriage would normally be the province of counsellors or conciliators.

The distinguishing factors of the mediation process are that it is intended to be voluntary and that the parties themselves choose to pursue it rather than it being imposed upon them. The process is also designed to be flexible and conducted in a neutral place with an impartial third party and it is also confidential in terms of matters which are referred to or disclosed within the mediation process, with certain exceptions relating to financial matters and child protection.

The nature of the mediation process also needs to be carefully understood. The mediator will not seek to coerce either party into a settlement or a resolution of the dispute. The solutions which are ultimately arrived at should be those which have been perceived by the individuals themselves rather than the mediator. The parties are intended to be free to express themselves as they see fit in the mediation process without being prejudiced thereby in terms of disclosure into a formal system. It is the parties themselves who are the experts and the driving force in resolving their dispute not the mediator. The mediator is not intended to dominate the process but instead manage the conflict and the process itself not the content of it.

Whether or not the mediation proves to be a viable alternative to the Court process will depend in part on the extent to which the parties are prepared to come to the mediation meetings on an entirely equal and open footing. Experience of the legal process has shown that where parties are unequal in the sense that one has a greater degree of bargaining or psychological power, or one party is not prepared to make full and frank disclosure of assets, that this is a matter which the Courts must attend to. They must ensure that the other party is fully and adequately protected. In a mediation situation this also needs to be enshrined in the governing principles if the process is to prove successful and enduring.

Pre-nuptial agreements

With ever-increasing divorce rates and an ever-increasing legal aid budget, the House of Commons Social Security Select Committee has begun to discuss ways in which divorcing couples can divide matrimonial assets more equitably and with the minimum of strife.  Pension splitting will allow a spouse with little or no retirement savings of his or her own to claim a share of the other spouse’s pension at divorce.

Among solutions for the division of matrimonial assets which is being discussed is the prenuptial contract, a method previously favoured by film stars in America and those with vast fortunes to protect as a way of agreeing a financial split in the event of failure. Currently in the United Kingdom, pre-nuptial agreements have no legal standing since it is the courts who have the last word on the division of all matrimonial property. The courts do not hesitate to ignore a prenuptial contract if they believe that the agreement is unfair to any of the parties involved, particularly regarding the maintenance for the children, if there are any, and their mother.

Many ministers believe that rather than calling into question a couple’s marital commitment, such contracts may require both parties to reflect upon the seriousness of marriage. By forcing couples to address financial and other issues before they are married, they may realise their obligations and manage their expectations of what they would receive if it ends. The Government is also anxious to avoid the mistakes of the CSA, who imposed strict criteria on the calculation of maintenance, often with disastrous results.

It is important that the system, if it does become a part of the future divorce process, includes checks and balances to avoid imposing rigid regulations on the division of assets, and takes account of the fact that a couple’s situation at the time of marriage can be radically different maybe years later when they divorce. It is easy to see that such an agreement would be ideal for a short, childless marriage, but would pose problems for couples whose careers and incomes radically changed after marriage, a typical situation in the U.K. Often the case in this country involves the wife giving up working to care for the children, and the husband continuing to increase his income. Would it still be right for each party to walk away with what they brought into the marriage when this is insufficient to support the wife and the children?

For how long the current situation remains is unclear. Despite the efforts of the current government to reform the divorce process in this way, it is unlikely that pre-nuptial agreements will be recognised as a legally binding contract by the U.K. courts in the near future. However, it appears a step in the right direction in encouraging couples to look at marriage seriously, and would help reduce the squabbling which can ensue in divorce proceedings and save the tax-payer a considerable amount of money.