However times have changed and under the new Family Procedure Rules which come into force in April of this year it is likely that mediation will be compulsory for all potential litigants in Matrimonial and Children Act proceedings.  Mediation is back on the table and is the hot topic for all family lawyers.  Mediation is no longer an irrelevance nor is it something we can afford to ignore.  Family lawyers are uniquley placed to guide their clients through the mediation process in the shadow of the law.  Who knows the legal process better than we do or the financial and emotional costs of litigation?

I have just completed a mediation refresher course with Resolution (the Solicitors Family Law Association)  and am all set to embrace mediation with a new and suprising enthusiasm.  Mediation is not a substitute for the law or lawyers as they still have their place in the process.  Mediation is not suitable for every one and when it is (the majority of cases) the solicitors still need to advise on the agreement and draw up the paperwork so that it can be turned into a court order.

Mediation gives clients choice; a real and very important alternative to litigation.  However the government is planning to abolish legal aid for all family law cases.  Clients who are currently eligible for legal aid will find this funding no longer available to them.  They will have no choice as their only option will be to resolve their family disputes through mediation.  I’m converted a believer in the value of mediation, however it remains to be seen if the government is.

The Legal Services Act will allow all kinds of large organisations such as supermarkets and banks to offer legal services to members of the public, the sort of legal services that are currently only available through solicitors’ practices.  The argument is that this will offer the public more choice and cheaper prices.  However, if that were true the High Street would be awash with small, thriving local supermarkets.  Instead, as we all know supermarket chains have killed competition except between supermarket chains.  Your local grocery store no longer exists (unless of course it is run by Tesco and has the word Metro in the title) and many greengrocers and butchers are struggling to survive.

Solicitors are currently asking themselves will Tesco offer two divorces for the price of one and will they offer Clubcard points with that?  Only time will tell.  And prices?  There is a lot of competition now but it doesn’t translate into cheaper prices for the public.  Economies of scale dictate that Sainsbury, Tesco and the like should be able to offer legal services at far lower cost than is currently available through your local solicitors’ practice.  However the public should ask itself who will be doing my work, will they be qualified and will I ever get to meet them?  Finally, what happens when there are no small law firms left; when there is no competition will the price go up?

The Eustace Diamonds by Anthony Trollope

Are family lawyers still held in the same regard today?  The answer seems to be obviously not.  Long gone are the days when solicitors were considered all but divine.  Indeed I suspect that they never were.  Trollope was writing at the same time as Dickens and we have ample evidence from Dickens’ novels of how difficult the client /solicitor relationship was, even then.

Solicitors have always been seen as expensive and the costs of litigation ruinous.  We are like black cab drivers but on a bigger scale, we charge all the time the meter is ticking and by the end of the ride you will wish you had taken the bus!  Mind you there is a crucial difference.  You will pay a taxi for all the time spent sitting in traffic going nowhere. The meter only stops when you reach your destination.  At least you only pay your solicitor for the work which he or she actually does to move your case forwards even if in some cases that work seems to leave you standing still.

When you hire a taxi there is a relationship between you, the taxi driver, the other drivers on the road, the utility companies which dig up the road and the local authority which lets them. He may be the best driver in the world with the fastest taxi but your progress will still be determined by these other variable factors.  The same is true for solicitors.  There are always at least two parties to a dispute and your solicitor cannot make progress with your case if he or she is constantly met with obstacles from the opposing party.  These obstacles can be a refusal to reply to correspondence, stonewalling or a simple refusal to see things your way and to agree with your case.  Sometimes there are three parties particularly once court proceedings have been filed.  The County Courts are understaffed and overworked, files are lost and court timetables are impossible.  In such circumstances you can run up a very large bill going nowhere, sitting in traffic.

Of course when you take a journey you usually have a choice.  There are a number of different transport options available to you.  The same truth does not apply to the law.  Yes you can choose mediation or alternative dispute resolution instead of actually going to court but you still need a solicitor to get advice on your legal position and the options available to you.  How do you know if mediation or alternative dispute resolution is appropriate for your case unless a solicitor tells you so?  How do you know if you have a case at all?

If you’re anything like me you usually take a taxi when you arrive in an unknown town (probably by train) and have no idea how to get to your destination.  You rely on the driver’s knowledge of the area and his or her ability to get you to your destination by the most direct route; as quickly and as cheaply as possible.  Solicitors are not black cab drivers but we do have the knowledge, the legal knowledge to help you reach your goal as quickly and as cheaply as possible.  At least that’s what we are supposed to do.  Most solicitors work really hard to try and achieve this goal.  Contrary to what many people think we do not deliberately incur unnecessary costs or deliberately delay our clients’ cases; indeed, it is not in our interests to do so.  We do not enjoy sitting in traffic any more than you do and we know that if you receive a large bill with nothing to show for it you will be unhappy, dissatisfied and lose confidence in our abilities.

If your taxi driver advises you on a detour to avoid blocked roads you will probably commend his honesty and resourcefulness.  So please, listen to your solicitor if he or she advises you to file court proceedings, proposes mediation or alternative dispute resolution to avoid wasting costs in fruitless and unproductive negotiations.

There has been much talk in recent years of giving cohabitees the same legal rights and financial claims as married couples.  Family lawyers seems to agree that it’s the right thing to do and the principle is unanimously supported by influential Family Law pressure groups which argue that the current non legal status of cohabitees is out dated, unfair and anachronistic.  When everyone else seems to agree that something is the right thing for right thinking people it is lonely being the voice of opposition.

Personally the idea appals me.  If these right thinking people have their way we shall have no choice at all.  You meet someone, fall in love and decide to move in together.  You then make a conscious choice, a firm decision whether you want to get married or not. You may decide that marriage isn’t for you.  You love this person but are just not willing to go the extra mile and actually marry them, thereby taking on all the legal rights, duties and obligations that go with the legal state of marriage.  If your partner does not agree with your choice he or she can make their own…accept the situation or not the choice is theirs.  Of course choices can be difficult to make, they can be coloured by emotion and you don’t always make the right ones but you have free will and as an adult you are entitled to make your own choices and your own mistakes. 

However, if these right thinking people have their way you won’t have a choice.  You will be forced to enter into a legally binding contract akin to marriage whether you like it or not.  You will wake up one day and realise that the arbitrary 2 year rule (there will have to be some such arbitrary rule) expired overnight and now your partner is your spouse just because you forgot to mark the date in your diary.  Without choosing to do so you will be forced to share your assets and your income with this person even after the relationship has ended, simply because you shared a bed.  This seems to me an unreasonable intrusion by the state in the way we live and the choices that we make. The law does not need to be changed the public simply needs to be better educated on the law so they understand the importance of that little piece of paper.

When you marry somebody you enter into a legally binding agreement to provide your spouse with financial assistance for the rest of your lives.  This contract can only be brought to an end by a court order namely an order dismissing the financial claims that you and your spouse have against each other.  Therefore, you cannot reach an agreement with your spouse which excludes the jurisdiction of the court to make whatever financial orders it considers appropriate given the circumstances of your case.  Without a court order your spouse continues to have claims against you for the rest of his or her life, even after your death.

Needless to say this usually surprises, and perhaps shocks many clients who are astonished to discover that the law does not allow them to make a contract with their spouse other than the marriage contract.  Essentially, therefore the marriage contract is a contract for life even if both parties no longer have a use for it.  They can enter into that contract at the age of 16 (with their parents’ consent) although at the same age they cannot be bound by any other contract at law.  They can do so without legal advice which in any event would be pointless given the (until recent) unenforceability of prenuptial agreements.  And then when it all goes wrong and the marriage comes to an end they cannot legally contract out of the marriage and its terms and obligations without the approval of the court.

So when a client asks me to draw up a separation agreement I have to tell them all the reasons why that agreement may not be binding and may not be upheld by the court at a later date.  I have to explain that there really is no such thing as a legal separation (I won’t bother with judicial separations here) and that if they want certainty and clarity they should get divorced and they absolutely must obtain an Ancillary Relief order.

Until recently I have given virtually the same advice in relation to prenuptial agreements.  They are helpful, they might be useful and they are probably advisable if the client is bringing substantial assets to a marriage but don’t be surprised if the court ignores the prenuptial in any subsequent divorce proceedings.  However, in October last year The Supreme Court, which recently replaced the House of Lords as the highest court in England and Wales, confirmed the ruling of the Court of Appeal in the case of Radmacher v Granatino.  In an earlier ruling the Appeal Court Judges had reduced to £1m the £5m plus financial divorce settlement a lower court had awarded Nicolas Granatino’s.   The judges ruled that “decisive weight” should be given to the agreement he signed before his marriage to Miss Radmacher’s that he would make no claims on her estimated £100m fortune.  The ruling is viewed by most lawyers as a major step towards pre-nuptial (or pre-marriage) contracts becoming legally enforceable in England and Wales. It has also been applauded by the champions of choice who believe that this fundamental shift in legal principle will allow couples to achieve some degree of certainty and control over their futures rather than their current forced dependency on the discretion of the matrimonial courts.   However it has also be argued that the ruling has created a rich man’s (or woman’s) charter to drive a hard bargain prior to marriage. - If you want to marry me darling then you must sign this contract and get nothing if I decide to trade you in for a younger model!

In fact the ruling does not change the existing law as the courts have always had the power to take prenuptial agreements into account in the same way that it has the power to take separation agreements into account.  The ruling has merely changed emphasis and the amount of weight that the courts are likely to give to such agreements.  Only Parliament can change the law and it seems that a change may well be coming and soon.  A governmental review of separation agreements is likely to result in them becoming legally binding for the first time.  Perhaps more importantly for most couples agreements signed after marriage, known as post-nups (and which would be likely to include separation agreements) could also be protected by law if ministers agree to reform.  

The truth is that the vast majority of couples will continue to get married without giving any consideration to prenuptial agreements particularly when it is their first marriage.  Most of us do not have the advantages of Miss Rademacher or Mr Granatino (who was himself a wealthy man at the date of his marriage) and will probably start married life with a cat, a car and a stereo if we are lucky.  Prenuptial agreements are far more relevant to second marriages when older couples bring assets to the marriage and children from previous relationships.  In such circumstances these couples should always consider a prenuptial agreement.  After all they already have experience of a failed marriage and its financial consequences.

Public holidays are marvelous things for lawyers.  You can have the day off in the knowledge that almost every other law firm and every Court office will be closed and nothing can happen for the duration.  No sneaky applications can me made behind your back and no urgent faxes can arrive that you are expected to reply to whether you are shopping at Bluewater or sunning yourself on a Spanish beach.   You know for sure that the offce will not contact you and your clients will not expect a reply to their urgent email until after the holiday.  From an economic point of view, it’s so much cheaper than dealing with your staff’s annual holiday entitlement.  No cover is required, no fees payable to agencies for temporary staff and there are savings to be made by closing your office for the day and switching off the heating (we are all green now).  I think the French are on to something.  The country closes for most of August when they go on holiday.

We have the most famous and arguably the oldest Royal family in the world.  The very popular heir to the throne is getting married next year and we are all facing a pretty bleak 2011.  What better reason to have a Public holiday.  I’m not a royalist but nether am I a republican.  I quite like having a Royal family but I don’t love them.  I’m a traditionalist in my love of our history and culture (St Paul’s Cathedral has been known to brings tears to my eyes) but I’m a modern woman in every other respect.  Nevertheless I shall be getting out the bunting and unfolding the trestle table for the street party.  My Union Jack will be unfurled and I might even watch a bit of the wedding on the telly.  I shall certainly enjoy my day off and I hope that everyone else does too.

On the morning of the court hearing she telephoned me to say that they were getting back together and that she didn’t want to waste money paying for me to represent her in court. Instead she went along with her husband only to discover that he had a barrister waiting for him there.  She was confused and outmanoeuvred and ended up agreeing to everything that he wanted.  An injunction was made against her which prevented her from entering various rooms in the matrimonial home. Apparently on the day before the hearing her husband had told her that he was going to withdraw his application and that she didn’t need me to represent her as it was a waste of money.

 Needless to say she regretted her decision the next day and telephoned me the following morning to discuss what action she could take to overturn the order.    Her husband attacked her that day and so first thing on Friday morning we were back in court asking for an injunction against him!  By this time her costs in relation to the injunction proceedings had more than doubled.