Monday, 27 February 2012

Family law is a soft option? Are you having a laugh?

I have heard various people saying family law is a soft option during the course of the 10 years that I have been practising family law.  This has always got my goat as they quite clearly do not understand the technicalilites and the difficulties involved in this particular area of law.

This has been a gripe that has rumbled in the back of my mind for a while.

However, it has moved today to a volcanic explosion in the front of my mind upon hearing that the senior partner at the firm where I work referred to family law as being "common sense, it's not rocket science".  Yes fellow family lawyers, I kid you not.  My working world changed dramatically last year when the partner in charge of family left.  This means we are now a department without a partner in charge and, as most practitioners will know, this usually makes you a black sheep in any firm.  Your message is not heard and it's particularly not heard when the partners think your job can be done by any idiot.

Our senior partner is a litigator and, in my experience, some litigators are the worst at seeing family law as a soft option.  I completely and profoundly disagree with this (obviously I'm a family lawyer but I think with good reason).

I think family law is exceedingly complex.  I don't want to get involved in some kind of playground tittle tattle and that's not why I'm saying this but I think there are other aspects of litigation that are far more formulaic.  I understand many firms dealing with repossessions have a very standardised process and this work is often dealt with by unqualified staff (not that I'm for one minute saying unqualified staff aren't up to a fee earners job because I was for the first 4 years of my career and unqualified paralegal and trust me I offered more than my weight in gold at times).  This does not make them easy but it means that there is a clear process for each one.  In personal injury there is information in Kemp and Kemp (if my memory from my LPC days is correct) as to what compensation should be awarded for what injuries.  A practitioner then has to look at what losses a person has suffered.  It's not a simplistic job but there is information and clear guidance in respect of each claim.

In family law financial matters there is simply no flow chart, or book you can go to that tells you what money your client should be entitled to.  It's a question of gathering financial information (which can in itself be difficult and complicated where one party is being obstructive) and then applying a number of factors (which must each be weighed differently).  Only once this has been done can you advise the client as to what is a fair outcome.  This is usually a ballpark of between x and y rather than a concrete figure.  Even then your opposite number may have undertaken the same exercise and arrived at a different conclusion.

In matters concerning children there can be a variety of issues to be dealt with and ironed out before agreement can be reached.  There may be serious issues concerned abuse or abduction.

In all family matters there are clients going through a variety of emotions and struggling to cope with the biggest upheaval of their life whilst giving clear instructions about important issues.  In some cases that client may never have dealt with these types of decisions before.

There simply is no formulaic approach.  Yes there is a procedure for making applications to the Court and yes we have some standard forms but the variables are huge and make each case different.  Even with 2 cases with similar circumstances (i.e roughly the same amount of money, same length of marriage, similar incomes and ages) one person may instruct their solicitor that their priority is to obtain better pension provision whereas the other may wish to remain in the former matrimonial home despite what this may cost them in pension terms (I'm not saying that would be a sensible step simply highlighting the different ways clients can approach their situation).

In one case the parties may be keen to try mediation.  In another case it may scream to be dealt with collaboratively.  In another case you may have a client who has been the victim of domestic abuse and who is very vulnerable and does not wish to have any direct contact with her ex partner.  Whilst this does not make mediation impossible (I recently attended a seminar talking about shuttle mediation) it does flag various issues of concern for the client's welfare and mean these will be at the forefront of your mind in advising about options on how they might proceed.

Through all this we have to balance the needs of our clients to achieve a fair and sensible outcome, to ensure that whereever possible they are still able to talk about issues going forward (and particularly their children) and that the costs they have paid are reasonable and not disproportionate to the assets involved.  We have to have some very tough conversations with people that don't want to hear things.  Suggesting to people that perhaps they could use some assistance with their parenting skills during this difficult time?  Flagging with someone in a sensitive way that perhaps they should speak to their GP about matters and consider whether counselling might assist them?

We also may wear many hats: lawyer, collaborative lawyer, mediator, opponent, advocate.  We are not simply litigating.  We straddle contentious and non-contentious work. 

Doing all this on an hourly basis and family law is a soft option?  Anyone who says that wants to walk a day in a family lawyer's shoes because you clearly don't know the half of it.


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