Every year the Spear’s Research Unit contacts hundreds of lawyers in preparation for the new edition of our Family Law Index. At the same time, we urge them to complete a survey designed to shed light on the most important considerations for HNWs embarking on a marriage, divorce, surrogacy, or some other issue where family law or the family courts come into play.
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In last year’s survey, the consensus among the family lawyers surveyed was that – for the financially stronger party in a divorce – the single most important factor to consider was the selection of the right solicitor. That remains unchanged this year. Perhaps it should come as no surprise that the respondents still believe that their own services can have a significant impact on the fortunes of their clients.
But when it comes to the financially weaker party in a divorce, opinion has shifted. In last year’s survey the single most important factor was judged to be ‘forming a clear picture of all wealth and assets held by one’s partner’. This year, ‘securing the best jurisdiction for a favourable outcome’ has taken the top spot, securing more than 50 per cent of the vote.
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‘In English law, unless wealth is protectively structured or unless there is an effective nuptial agreement, there is little the wealthier party can do to minimise the financial impact of claims against them,’ said Lewis Marks KC of specialist family law barristers QEB.
No fault news
This time last year, the profession was reflecting on the first year of no-fault divorce, but the outcomes were already clear. Clients welcomed not having to determine a guilty party or specify unreasonable behaviour at the beginning of the process, with 68 per cent of our respondents reporting that the non-adversarial approach was the most appreciated part of the change. This year even more – 70 per cent – responded positively to the same question.
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Last year, almost half of respondents saw an increase in divorces and expected even more in the coming year, but only 26 per cent of respondents to our 2024 survey expect to see a rise in break-ups in the next 12 months. Last year it was thought couples had been waiting for the implications of the introduction of no-fault divorce (in April 2022) to be better understood. It now seems that the temporary upturn has come to an end and people who were waiting for changes in process to come into effect have washed through.
Richard Collins of Keystone Law is one of the 11 per cent who expect fewer cases, citing the decreasing attractiveness of London as a home for HNW couples as a possible cause of lessening divorce rates among his sector. ‘Less HNW Europeans working and living in London, a new Labour government and higher tax regime may make people who might have moved to London look at NYC, Paris or Dubai,’ he said.
[See also: UK to see exodus of millionaires as HNWs ‘vote with their feet’]
These straitened times seem not to have been the only determining factor in couples’ objectives, though. Last year 57 per cent of people reported wealth preservation as the most important matter for clients, with a fair division of property at 17 per cent. This year fairness has made up some ground, reaching 22 per cent, with wealth preservation dropping to 43 per cent.
Open season
This year sees a major change in the family courts. Andrew McFarlane’s 2021 report, ‘Confidence and Confidentiality: Transparency in the Family Courts’, led to a reporting pilot that had previously been restricted to three regional centres: Cardiff, Carlisle and Leeds. In January it was expanded to include the London courts and others around the country. Under its terms, reporters and legal bloggers are given access to a far greater range of documents, albeit anonymised and for a limited amount of time. Children are afforded the same rights to total anonymity that they currently have, but many adults worry that details of their lives will become far more easily accessible in the name of openness.
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A great many of our respondents named this pilot as the expected biggest issue in family law in the next 12 months. ‘The impact of the transparency pilot is here to stay – keeping clients out of court and using alternative dispute resolution [ADR] more,’ said Jessica Reid of Dawson Cornwell. Indeed, ADR and private financial dispute resolution (FDR) were a recurring theme in our survey responses and the face-to-face interviews held by the Spear’s research team.
[See also: Divorce transparency rules at risk of exploitation]
Asked if they were advising their clients differently given the changes to court reporting, most reported that they were advising caution when it came to court, some more emphatically than others. James Pirrie of Family Law in Partnership commented: ‘Hell yes… and also ‘no’ – as we have always given that guidance. Now I am doing so in slightly more hysterical tones!’
Crumbling system
Others named the current delays in securing court time. Catherine Costley of Fladgate said: ‘The crumbling court system is being held up by some incredibly hard-working staff and judges, but it is not fit for purpose and cannot continue on as it currently is. The failings of the court system will increasingly impact upon access to justice and will remain an important issue in family law in the next 12 months.’
Sarah Jane Boon of Charles Russell Speechlys combined the two, saying that the most important issues this year would be ‘non-court dispute resolution and the emergence of a two-tier system, where those that can afford it opt out of the court system due to the delays, shortage of good judges and risk of publicity’.
When our next family law survey is published in 2025, the new reporting rules will have been in place for more than a year and are likely to have spread to all of the courts. They will have been tested in the tabloid press as well as in legal blogs and academic circles, and high-profile clients will have seen the effects, whatever they might turn out to be, on their friends and colleagues. Our respondents will have plenty to say on the subject, and we look forward to finding out what.
This feature first appeared in Spear's Magazine Issue 92. Click here to subscribe.
