THE BLOG

Why the Government's Divorce Reforms Will Lead to More Prolonged and Costly Separations

24/04/2014 10:33 BST | Updated 23/06/2014 10:59 BST

The Children and Families Act, which became law on 22nd April, contains some laudable new approaches to family justice, such as a 26-week cap on care proceedings which should lead to quicker outcomes for cases involving children.

However, the package of reforms has a sting in its tail for divorcing couples - the introduction of compulsory mediation.

Mediation involves couples holding discussions, led by a trained mediator, to reach agreements out of court, which can then be made legally binding and enforceable by a court order. It's long been a favourable option for couples who are willing, and able, to reach an agreement without discussions becoming clouded by emotion.

But now all couples are legally required attend a mediation information and assessment meeting (MIAM) before they can proceed to court, regardless of their individual circumstances, unless domestic violence is involved.

The Government says this is designed to alleviate the stress and cost associated with divorce. In reality for many couples it will simply delay the inevitable, prolonging the trauma of a divorce.

The problem is the Ministry of Justice is applying a one-size-fits-all approach to what is in fact a hugely subjective experience. Mediation works for some people but for many others it simply isn't appropriate. Often when couples decide to divorce it is because all communication has broken down, so asking these couples to resolve their differences without legal advice is very risky, particularly where one spouse may be more dominant or confident than the other.

This isn't a case of turkeys not wanting to vote for Christmas. Many law firms, including JMW, offer mediation services. In some cases, it's the right route and useful in finalising a separation without the need to step foot into court. However, of the 300 divorce cases we handled last year, around half were not suitable to be referred to mediation due to the circumstances of the couples involved.

As a legal adviser a crucial part of my role is recognising and acting if a divorce case can be kept out of the courts, saving unnecessary stress. But equally, it would be a dereliction of duty for me to refer a couples in the throes of a traumatic, acrimonious break-up to mediation. Where a relationship has irretrievably broken down, couples should be entitled to take professional advice and use the family courts to end their marriage.

The Government has positioned this as a silver bullet when in reality it's little more than a cynical attempt to delay the backlog of divorce cases in UK courts.

At best, it will delay cases and cost the taxpayer more in the long run. At worse, it poses a risk to less confident spouses who may be railroaded into settlements they don't agree with.

James Brown is a partner and family law expert at JMW Solicitors