16 February 2011 | By Katy Dowell
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Family lawyers often talk about London being the divorce capital of the world. On Monday the Court of Appeal (CoA) handed down a judgment in an international case that reaffirmed that position - for international divorces at least.
Domestically, however, family law is being radically shaken up as the Government attempts to cut the £800m bill that delivering family justice costs the state annually.
International divorce law was furthered on Monday when the Court of Appeal gave permission to Italian man Francesco Traversa to appeal a divorce settlement that was originally agreed in Italy.
It was the first reported case in divorce law since the Supreme Court handed down its judgement in Agbaje last year (10 May 2010).
In Agbaje, the Supreme Court ruled that Nigerian born Sikirat Agbaje, a British citizen, was entitled to challenge the divorce settlement her former husband had attained in Nigeria through the English and Welsh Courts. This meant she was able to increase her settlement from £7,000 to £616,000.
In this latest case it is the husband who is attempting to have his settlement increased after his former wife secured a divorce in Italy. The case was originally thrown out by the High Court, but following the Supreme Court’s decision in Agbaje, Traversa took his case to the CoA. Permission to appeal the settlement was granted.
Had the husband left proceedings until after 6 April it could have been that the court ordered him and his ex-wife to go through a compulsory assessment for mediation, as all divorcing couples in this country will soon be required to do.
The Ministry of Justice (MoJ) was last week due to issue guidance on exactly how the new divorce protocol will work, but, after realising it was National Family Week, the publication was promptly delayed.
That said, practitioners have had a sneak preview of the directions and are working furiously to find ways to meet the new demands put upon them. For instance, the Family Mediators Association is currently assessing whether it has enough mediators to meet the demand. Inevitably there will be areas of the country where mediators are scarce on the ground and training has to be provided.
The MoJ has provided no statistical analysis about why mediation is more cost effective than other ADR routes to divorce. Neither does it know how many qualified mediators there are in England and Wales.
As one lawyer states: “We’ve been told we have to do this, but not told how or why. It’s patchy at best and shows no joined-up thinking.”
This is the message that family lawyers group Resolution has been trying to hammer home in recent weeks. The group is dealing with more than a dozen legislative consultations while also trying to respond to the cuts to legal aid. This comes a year after it already provided evidence to a select committee for the Family Justice Review.
Resolution chairman David Allison said last week: “”The Government should shelve these quick-fix proposals and take a more considered, constructive approach. That includes fully joined-up thinking with its own ongoing Family Justice Review. Otherwise the Government risks creating an expensive mess that’ll cause misery for huge numbers of families and children.”
Meanwhile, high-net-worth individuals who want to use London as a divorce jurisdiction will continue to lodge applications to the family court without the objection of the judiciary.
Those wealthy individuals may well be sent for a mediation assessment, but they will be under no duty to go down that route.
The lack of joined-up thinking on the part of those driving the family justice reforms is in danger of aggravating further what is already a two-tier system, where London’s Rolls Royce divorces are granted only to those who can afford them.