The Government has published its response to a consultation that it ran last year on resolving private family disputes earlier through family mediation.

The main proposal in the consultation was that mediation should be compulsory for most family disputes, with the hope that most disputes would then be resolved by agreement, rather than going to court.

But the Government has decided not to make mediation compulsory, following concerns that this could result in victims of domestic abuse having to attend mediation when it was not suitable or safe for them.

The Government has, however, indicated that it may still introduce compulsory mediation at a later time.

Meanwhile, the Government says it will bolster mediation, for example by improving training for mediators and continuing to support the Mediation Voucher Scheme, under which it provides £500 towards the costs of mediation, in eligible cases.

And whilst mediation may not be made compulsory, judges are being given more powers to encourage parties to mediate. The Law Society Gazette has reported that new court rules to be introduced in April will allow judges who believe a party has not taken mediation seriously enough to pause the proceedings and compel them to attend a mediation assessment meeting.

Returning to the consultation response, the Government has made two further significant announcements.

Firstly, it has said that it will pilot offering early legal advice to parents in disputes over arrangements for their children. The Government plans to launch the pilot this summer, in specific regions in England and Wales.

The Government plans to use the pilot to evaluate the impact of government-funded early legal advice, and assess the potential benefits, both in facilitating the earlier resolution of disputes and expediting court-based resolution where required.

The second announcement is the expansion of the ‘Pathfinder’ courts pilot. Pathfinder courts use a more investigative and less adversarial approach to dealing with disputes between parents over child arrangements, strengthening the voice of the child in proceedings, and increasing support to parties who need it.

Pathfinder courts are currently being piloted in Dorset and North Wales. The Government has announced that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, rolled out to all courts in England and Wales.  

You can read the full consultation response here.

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Resolution, the association of family lawyers, has made four proposals for the political parties ahead of the general election, which it claims “will make a huge, positive difference to the lives of the hundreds of thousands of people that separate each year”.

In a letter to each of the major parties, Resolution Chair Nigel Shepherd calls on them to make a commitment in the next Parliament to:

1. Allow couples to divorce without blame.
2. Give cohabiting couples, who make up 10% of the population, some basic legal rights.
3. Ensure there is fair access to the family justice system.
4. Give people more financial clarity on divorce.

Mr Shepherd said: “It’s time to end the blame game. A new Parliament is a perfect opportunity for politicians to finally act on no fault divorce, regardless of the outcome on June 8th. This is why I have written to all major parties calling on them to make a clear commitment to modernise family law on this and other key issues for our members, such as rights for cohabiting couples, fair access to the justice system and financial clarity on divorce.”

The letter sets out Resolution’s proposals in each of the four areas.

As to divorce, it says that the current law “leads to unnecessary conflict, makes an amicable separation less likely, and reduces the chances of reaching agreement on children and financial issues.”

As to cohabitation, it says: “The reform Resolution proposes would not give cohabiting couples equal legal status to married couples. But it would provide a legal safety net for those cohabitants who currently – wrongly – believe they have legal rights.”

As to access to justice the letter says: “It is our belief that funding should be provided for free initial advice for people of limited means, to help them identify their options on separation and divorce, helping them to put the needs of any children first, and ensuring they are better informed at the start of the process. This would mean those who go on to represent themselves are better informed about their legal position from the outset.”

Finally, as to financial clarity on divorce the letter says: “Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals. Section 25 of the Matrimonial Causes Act 1973, which determines how money is divided up on divorce, has fundamentally remained unchanged for the last 40 years. The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system.”

Family Law Cafe agrees with all of these proposals, and hopes that the parties will take note.

Image: Polling station (way in), by Paul Albertella, licensed under CC BY 2.0.0.