The value of a family business or business interest is treated as an asset and therefore part of the matrimonial pot to be distributed when it comes to negotiating a financial settlement on divorce or...
Having just sent the Ministry of Justice my Department's response to the Family Justice Review Interim Report it seems to me that this debate about our family justice system entirely misses the point.
The direct annual cost of our family justice system is, according to the MoJ, about £1.5bn annually. The indirect cost to the economy of social exclusion - itself in many instances a result of generational parental failure - is immeasurable.
According to the MoJ's website, the aim of the Review is "to improve the system so that it is quicker, simpler, more cost-effective and fairer whilst continuing to protect children and vulnerable adults from risk of harm."
What this means is that the Review concentrates on the legal consequences rather than the causes of parental disputes and failings. Framing the debate in this way is, in my view, a mistake.
Granted, there is no doubt that the current system fails to meet most of the objectives set for the Review Panel. Each year sees an increase in the number of children and adults exposed to the legal consequences of relationship breakdown and / or parental separation. Periodically, public reaction to high profile child abuse cases leads to a reactive surge in public law applications adding further strain to already overstretched social services departments. Cafcass is underfunded and failing. The demand for Independent Social Workers outstrips supply. Remuneration rates for specialist legal aid lawyers are so poor that the only viable business model involves high volume work being pushed down to unqualified staff. Court lists are massively oversubscribed and, without judicial continuity, efficient case management is almost impossible to achieve.
So, of course, it makes sense to divert cases away from the court system and into alternative dispute resolution; although I continue to question the Panel's exclusive focus on mediation rather than the whole panoply of therapeutic and non-therapeutic interventions. Likewise, for intractable or complex disputes where litigation is inevitable, the emphasis on judicial continuity and better directed case management is long overdue.
But whilst many of the Review Panel's recommendations are sound (although, it has to be said, some less so), they are uniformly reactive to a broken family justice system.
As a society our attitudes towards marriage, relationships and parenthood have changed dramatically over the last 40 years; generally for the worse. No longer do we talk about the responsibilities, obligations and sacrifices that come with parenthood. Rather we are fixated with our personal "rights", their application and enforcement.
Perhaps the implementation of the recommendations of the Panel will mean that we get more bang for our collective buck. Perhaps mediation will divert parents away from the courts which, along with better judicial case management, will perhaps reduce delay. But what none of these initiatives will do is teach children how to maintain stable relationships and parents how to put the needs of their children first.
Creating a more efficient family justice system is one thing; educating our society so there is no need for such a system ought to be the ultimate goal.
Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.