24 January 2011
2 January 2008
6 July 2009
31 August 2009
What’s it all about?
Each set of circumstances is unique. In a typical day a family lawyer may grapple with a divorce involving millions of pounds where the husband does not wish to reveal the extent of his assets; an unmarried couple with children who cohabited for decades and are now separating and arguing over the financial arrangements; or a prenuptial agreement between two people who are about to get married.
Then there could be preparation for court, including instructing counsel; dealing with an adoption; making sure a divorced or separated parent can see their children; managing disputes over child maintenance; or handling complicated international issues such as child abduction. Family lawyers also deal with the increasingly complex interrelationships within ‘blended’ families. Family law is extremely rewarding and never dull.
The working culture
As relationships break down people come under enormous stress. A family lawyer must be able to cope with clients who may be distressed, often to give unwelcome advice. Perhaps the wife who will have much less money after a divorce than she was expecting, or a father may see his children less than he would like. Family lawyers have a far greater impact on the lives of their clients than almost any other type of lawyer. They must have a good grasp of the law and of new developments within it. They must be able to explain in simple terms sometimes complex legal principles and procedures. Almost certainly, the process will take longer and will be more upsetting (and costly) than the client may initially expect.
Family lawyers need to be good with people and excellent listeners who can empathise with people’s problems. They must also like a fast-paced and challenging environment.
In June 2008 the Law Commission identified the law relating to marital agreements (pre and post-nuptial agreements) as ripe for review. In the course of its tenth programme for law reform, the commission will have examined the status and enforceability of agreements made between spouses or civil partners (or those contemplating marriage or civil partnership) concerning their property and finances.
In Macleod v Macleod (2008) the Privy Council held that post-nuptial contracts are binding and can only be varied by the court in limited circumstances.
Although the Privy Council declined to reverse the longstanding rule relating to the validity of prenuptial agreements, the question remains as to the weight to be given to these agreements.
The recent Court of Appeal decision in the case of Radmacher v Granatino (2009) is the most important decision to date on prenuptial agreements in English law and is likely to influence materially judges and practitioners in determining the weight to be given to marital agreements.
The Court of Appeal held that, while any prenuptial or postnuptial agreement cannot be strictly binding, it is likely to be given substantial weight provided that it cannot be challenged on contractual grounds such as fraud, misrepresentation or undue influence.
Yet because the Court of Appeal in Radmacher has taken a significantly different view on a number of points to that taken by the Privy Council in McLeod, this has led to confusion for family practitioners. It does, however, demonstrate again the need for statutory reform and it is hoped that the Law Commission will grasp the opportunity to resolve the issue.
In April 2009 new rules came into force allowing for ‘duly accredited’ media representatives to be present during family proceedings, subject to the court’s discretion to exclude them. This discretion can be exercised where either the interests of any child concerned in, or connected with, the proceedings, the safety or protection of a party or witness or someone connected to a party or witness, or the orderly conduct of the proceedings requires it.
Importantly, the new rules do not change the ‘private’ nature of the proceedings. Journalists will not be permitted to report cases they attend that concern children except with the permission of the court. Neither, in the majority of cases, will the media be able to identify the parties to such proceedings.
Furthermore, the provisions do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court.
The rules do not have the far-reaching effect many were hoping for. The Government’s current intention is to introduce legislation to permit the reporting of family proceedings, but it is uncertain when this is likely to happen.
Barbara Reeves is a partner and Nina Benady a trainee at Mishcon de Reya