Family justice professionals
Resolution: first for family law
Juliet Harvey encourages Chartered Legal Executives working in family law to join Resolution, and to get more involved, at whatever stage of their career they are.
About the author
Juliet Harvey, a Chartered Legal Executive and collaborative lawyer, is a senior associate in the family team in Birketts, Ipswich. She is a member of Resolution's National and Executive Committees, and sits on the committee of local Resolution groups in Cambridge and Ipswich.
Resolution is an organisation of 6,500 family justice professionals. Originally founded by John Cornwell and other likeminded solicitors 35 years ago, Resolution promotes a constructive and non-confrontational approach to family law matters through the adoption of its Code of Practice, which members strive to put at the heart of all they do.
Since then, the organisation has grown to embrace professionals across the whole family justice arena, including Chartered Legal Executives, barristers, paralegals, trainees and students. As family justice has developed, our membership base has too.
What sets Resolution apart is our Code of Practice (I wrote about this in ‘Resolution: the voice of the family lawyer’, (2016) November CILExJ pp6 and 7)).¹ Originally, membership was limited to solicitors and Chartered Legal Executives, and over time we have welcomed other professionals we work with in supporting families, such as financial advisers, barristers and mediators. We have found that these and other groups of professionals have joined, as associates, because they also believe in the Code of Practice.
We are going to ask our membership about moving current associates to 'full' membership, so they can truly sign up to the Code. The Code itself was revised last year, and can be adhered to by people other than lawyers. Our hope is that, as family justice continues to develop, the only acceptable way to deal with family matters will be in a constructive and non-confrontational way, in line with our Code.
In the past 18 months, Resolution has been focusing on membership by working to remove perceived barriers to joining (all sorts of professionals can join); streamlining the joining process; and moving towards creating a single category of membership for those actively involved in family justice (while focusing associate membership on those who have retired, work abroad, are on career breaks or are working towards qualification).
As a Chartered Legal Executive, I am particularly keen to promote what Resolution offers to its Chartered Legal Executive members, at all stages of their careers. We know that some Chartered Legal Executives are not aware they can join, and I do not want any of you to miss out.
For those starting off at the beginning of their CILEx journey, student membership is available. Student membership is now free to all student members in their first year of membership (provided that their studies are family law or justice related). As Chartered Legal Executives move through the CILEx levels of qualification, so they can move through Resolution membership until, once Level 6 has been passed and at Graduate level, CILEx members can then move to full membership of Resolution.
The call for no-fault divorce and Owens
Resolution campaigns on behalf of its members, and their clients, for improvements to the family justice system. Current campaigns include the call for no-fault divorce, and raising awareness around cohabitation to dispel the myth of the 'common-law' spouse and to highlight the very different ways the courts treat married and unmarried cohabitants.
Many of you may recall the case of Tini Owens in the Court of Appeal earlier this year ([2017] EWCA Civ 182). The couple married in 1978, and separated in 2015. The wife petitioned for divorce on the basis of the husband’s unreasonable behaviour, and that she could not reasonably be expected to live with him.
Family lawyers are aware that, for many years, there has been a fine art to drafting a behaviour petition in such a way so as not to upset the receiving party yet, at the same time, meet the requirements of section 1(2)( b) Matrimonial Causes Act 1973.
The husband opposed the petition, which was then dealt with as a defended divorce (rather than the quickie divorce we see mentioned in the media when celebrities divorce).
At first instance, Mrs Owens’ petition (which included five paragraphs detailing her husband’s behaviour) was said to be ‘hopeless’, ‘anodyne’ and ‘at best flimsy’, and as a result her application for divorce was refused. However, the wording of the ‘particulars’ of behaviour may well resonate with many of you as complying with the spirit of the Law Society’s Family Law Protocol, and also Resolution’s Code of Practice.² The petition is a classic example of the vast majority of behaviour petitions that come across my desk, either drafted by me or where I am instructed by a respondent. I am sure that it will also be familiar to many readers of this article.
Mrs Owens amended her divorce petition to include expanded particulars of her husband’s behaviour, which she deemed to be unreasonable. She set out 27 examples for the court’s consideration. Her husband continued his defence of the divorce, the thrust of his argument being that the behaviour complained of was very much the stuff of everyday married life. The judge agreed.
The appeal commenced on Valentine’s Day 2017. On the previous day, Lord Keen, the Ministry of Justice spokesperson in the House of Lords, when asked if the government had plans to review the fault-based divorce system stated:
The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed (HL Written Answers, 13 February 2017).
The Court of Appeal dismissed the wife’s appeal. It held that the judge at first instance had applied the law correctly. The judges accepted had the husband not opposed the petition, it would likely have progressed, in the usual ‘quickie’ procedure, through to a decree. The Court of Appeal acknowledged the Family Law Protocol, which provides that: ‘Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court, and not to include any reference to children’ (para 9.3.1).
The Court of Appeal also gave recognition to Resolution, approving the precedent letter in Resolution’s Guide to good practice on correspondence.³ Sir James Munby, president of the Family Division, stated: ‘The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty’ (Owens para 94).
Mrs Owens has obtained permission to appeal to the Supreme Court. Resolution, which for years has campaigned for no-fault divorce, supports Mrs Owen in her appeal and has applied to intervene.
Nigel Shepherd, national chair of Resolution stated earlier this year:
In today’s modern society, it should not be the case that someone is being forced to stay in a marriage she does not want to be part of, and is now having to go to the highest court. Mrs Owens’ case highlights why divorce law in the UK needs to change.4
This case also underlines why Resolution has called for successive governments to introduce no-fault divorce, and we will continue to do so.
We need to reduce conflict, and to support separating couples to resolve matters amicably, rather than forcing them to play a blame game, where one or both of them thinks that the marriage is over. The simple fact is that this case should not have been necessary, and only by implementing a no-fault divorce system can we ensure that such a situation does not happen again.
The current system is also at odds with much of the government’s rhetoric around supporting strong families: even though parents may divorce, in most cases, they continue to have a relationship with their children, and it is in everyone’s interests, particularly those children, for the process to be managed with as little conflict as possible.
Nigel Shepherd also highlighted that:
Support for no-fault divorce is growing, from family law professionals, the public and politicians. Whether it’s before or after the case is heard by the Supreme Court, the government needs to take urgent action to bring our outdated divorce laws up to date and ensure that Mrs Owens’ experience is not repeated.5
Resolution is also campaigning for greater awareness of how unmarried cohabitants are treated upon relationship breakdown:
- There is no ‘common-law' status.
- There are no automatic property rights after six months.
- There is no right to a share of a cohabitant’s pension on relationship breakdown.
- There is no right to maintenance (other than for dependent children).
These are all common misconceptions repeated by clients up and down the country.
In the week commencing 27 November 2017, Resolution will be holding ‘Cohabitation Awareness Week’ to highlight the lack of rights for cohabiting couples should they separate. This work, as ever, will be supported by local Resolution members and regional committees up and down the country.
The Litigants in Person Working Party
Resolution members volunteer their time to sit on committees and working groups which address the needs of members and deal with issues they come across in everyday practice. For my part, as well as sitting on our national and executive committees, I chair the Litigants in Person Working Party.
As you will know, post the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the number of those representing themselves has increased significantly. As a group, we are looking at marshalling resources to ensure that litigants in person (LiPs) are better informed and to assist members with how to conduct a case effectively with a LiP ‘opponent’.
The working party has developed a ‘Top tips for LiPs’, which we hope can be provided to courts to send out with issued children and financial applications. We have also developed a ‘Top tips’ for those working with LiPs; often these cases are passed to more junior fee earners.
It can be extremely daunting when a litigant overwhelms you with what can feel like hateful correspondence and abusive telephone calls, or even turns up at your offices. If you would like to get involved with the working party, please contact me as I am keen to recruit some Chartered Legal Executive members onto our committee.6
Network of regional groups
As does CILEx, Resolution has a network of regional groups: 43 in all. You may be very active in your local CILEx branch, but if you would like to become involved with your local Resolution regional group, focusing specifically on family law issues, or if there is not an active CILEx branch near you, please contact Resolution.7 We also have an active and vibrant YRes network for family law professionals with up to 10 years’ PQE, with over 30 regional groups and counting.
Family justice policy reforms
Resolution, like CILEx, is consulted on proposed changes to family justice, such as changes to the court structure, proposed court closures, flexible court sitting times as well as proposed changes to statute. Both Resolution and CILEx liaise with the Ministry of Justice and prepare consultation responses on behalf of its members.
Earlier this year, CILEx launched a Specialist Reference Group for members working in family law.8 On behalf of those of you specialising in family law, CILEx responded to the proposed changes to Part 9 of the Family Procedure Rules that seek to delink the process of divorce from financial proceedings.9
Help us to shape the future
Both Resolution and CILEx depend on you, the membership, to help shape the future of our respective organisations. However, you could also help to shape the future of family law by becoming involved in working parties, local branch or regional meetings, joining the Family Practitioners Specialist Reference Group and taking part in surveys about family issues.
Alternatively, just come along to local branch meetings or regional groups to meet a bunch of like-minded professionals. There has never been a better time to get involved.
1 Available at: http://tinyurl.com/ybmt4c7q
2 Family Law Protocol, 4th edition, Law Society, £39.95, available at: http://tinyurl.com/y77uzfmc and see note 1
3 Available at: http://tinyurl.com/yb973pae
4 ‘Resolution welcomes Supreme Court's decision to allow Mrs Owens to appeal her case’, Resolution news release, 8 August 2017, available at: http://tinyurl.com/ycsgcmba
5 See note 4
6 E-mail : juliet-harvey@birketts.co.uk
7 For details of the Resolution region closest to your home or office, telephone 01689 820272
8 To register your interest, e-mail: familypractitioners@cilex.org.uk
9 Family Procedure Rule Committee consultation on proposed amendments to Part 9 of the Family Procedure Rules 2010: applications for a financial remedy. A response by the Chartered Institute of Legal Executives September 2017, available at http://tinyurl.com/y7vo7zh7
Policy and campaigns
If you would like to support Resolution in either its campaign for no-fault divorce or for a fairer system for cohabitants, please e-mail : info@resolution.org.uk
- For more information about Resolution or on how to join us, telephone: 01689 820272 or visit: www.resolution.org.uk