This post was first published in March 2016.
Two weeks ago the President of the Family Division, Sir James Munby, spoke to the Family Law Bar Association about his vision for the future of family justice, saying:
“Our primary task last year was retrenchment and consolidation … we are now moving forward into a new phase of reform; reform so fundamental that in retrospect the great reforms implemented in April 2014 will seem modest in comparison”
Many of the reforms deal with how the court will deal with issues relating to children, but for this article I want to focus on the effect on divorce and the financial division of assets. Sir James describes a future in which the court is virtually paperless – applications are issued online, many cases are conducted almost entirely online by video conference, and those hearings that do take place in the reduced number of court buildings use electronic (and highly condensed) bundles of documents.
Meanwhile the ‘Red Book’ is “fit only for the bonfire” as we can expect radically revised procedure rules, forms and orders simple enough for the humble litigant in person to understand. When can we expect to see these fundamental changes? It is “a vision not of some distant future but of what has to be, and I believe can be, achieved over the next four years of the Courts Modernisation Programme,” and no doubt Sir James hopes to have as much of this in place as possible before he reaches mandatory retirement in July 2018.
There is no doubt that these reforms will (and indeed are intended to) delawyer divorce and matrimonial finance disputes to a significant extent. Sir James references the need for the court process to be accessible and understandable to self-representing litigants.
I have been mulling over the consequences of his far reaching plans and offer below one possible vision of a post-reform world of divorce and matrimonial finance:
The focus of litigation will change
- The post-Munby world is designed to better serve self-represented litigants
- In time, this will extend beyond simpler procedural rules to a push for simpler substantive rules about the redistribution of parties’ assets
- This will be driven not only by the need to make the law more accessible but by a recognition of the immense value to litigants of achieving a swift solution and being able to move on with their lives
- A new philosophy will develop that approximate justice for all is better than tailored justice for the few (and nothing for everyone else)
- Better tracking of decisions and settlements will help ensure that judicial discretion is applied consistently – this is turn will make it easier for future litigants to anticipate the likely outcome of their case and encourage greater take up of non-court dispute resolution mechanisms
The role of lawyers will change
- Lawyers will cease to play a central role in most people’s divorces – they will instead be consulted on divorce procedure and financial division as discrete issues within the far larger (non-legal) context of their relationship breakdown
- Improved access to information from the courts and elsewhere will mean that lawyers can only charge for advice and assistance, and not simply for information about the process
- There will be a far larger emphasis than currently on unbundled services – the mantra will be helping people help themselves
- We will finally see a very significant shift from hourly rates to value-based and/or fixed fee billing
- Solicitors will need to collaborate more in the provision of information (and perhaps services) to maintain the value of the solicitor brand and demonstrate collective expertise
- Online court processes will drive many solicitors’ marketing efforts online and there will be a growth in sole practitioner virtual firms operating entirely online, to the detriment of traditional bricks and mortar firms
- Success in this environment may depend as much on visibility and providing the most useful tools as on expertise
I am quite happy with that future. There will be less of a role for family lawyers, but family breakdown does not exist to provide lawyers with work any more than disease does to occupy doctors. I fully expect others, however, to see this prediction as no less than apocalyptic. What do you think?