Family law: What to expect in 2023

Divorce, parental alienation, cohabitation, surrogacy – just a handful of the areas that were under family law’s microscope in 2022. However, the law – and with it the economy, society, and technology – seldom stands still.

With this in mind, there is much to consider as family lawyers look towards 2023. Here are the thoughts of several key voices on what to expect.

What area of family law will change the most in 2023?

“With the advent of a truly “no-fault” divorce process in April 2022, this should hopefully lead to a continuing change in attitude towards divorce and ideally a move away from confrontational adversarial-based financial remedy litigation,” said Simon Donald, Partner in the Family Team at Cripps, adding:

“With a more conciliatory approach, we should see parties and family solicitors actively move towards using the full range of alternative dispute resolution processes rather than, as feared by the President of the Family Division, Sir Andrew McFarlane, parties simply ‘falling into court’.”

However, the renewed conciliatory approach may come amidst a drop in applications in 2023, as pointed out by Claire Holland, Director, Holland Family Law:

“With the UK in the middle of a cost of living crisis with a looming economic recession, many couples looking to divorce may be unable to afford it. During the last recession between 2007 – 2009, we saw a similar trend where the number of applications for divorce fell.”

In any case, Graham Coy, Partner at Wilsons Solicitors LLP, noted some of the pitfalls that increased online applications may bring, especially during a period where legal advice becomes less affordable:

“We will see a rise in couples who have commenced divorce proceedings online, either as a sole or joint application, without having sought advice, and who do not realise that the finances on divorce need to be resolved until it’s too late.

Pensions – often a major asset – may be overlooked or lost altogether. Equally, they may be misled into agreeing a ‘clean break’ without knowing what they are giving up.”

Ruby Holland, Trainee Solicitor in the Family Team at Ashfords, said there will be “increasing use of the digital portal together with continuation of remote hearings”, adding:

“People will also be encouraged to continue to use methods of alternative dispute resolution such as mediation and private financial dispute resolution.”

Natalie Sutherland, Partner, Burgess Mee, said despite any effective change being out of reach next year, she is looking forward to developments around surrogacy law “that we hope will be released by the Law Commission with a draft bill in Spring 2023” which “the surrogacy professional community is hoping that […] won’t be delayed again”.

Sutherland went on to note that “plans are also afoot to update the Human Fertilisation and Embryology Act, and over the coming years she is “hopeful that modern family law will be brought up to date as a whole, with the legal side of things finally catching up with science and society”.

The hurdles that lie ahead for family lawyers next year

“It is no secret that the Family Courts are creaking and lawyers in 2023 will need to think more widely and look at alternatives rather than seeing the Court as the way forward,” said Imran Khodabocus, Director at The Family Law Company.

This was echoed by Marilyn Bell, Head of the Family Law Team and Partner at SA Law who said delays remain a “significant hurdle” for family law practices:

“A financial application made now could, depending on where the parties live, be given a first court listing date in nine months’ time. If the application follows months of negotiations and mediation, it can be devastating and costly for families to have to wait that long to move forwards.”

Bell suggested that family lawyers may begin issuing Court applications at the beginning of the process “just in case the mediation fails”.

Lisa Payne, Chartered Legal Executive at Wilsons Solicitors LLP, added that “parents need to be discouraged from going to Court unless there is no other viable option”:

“There are many other options which too frequently are under-used, notably mediation, collaboration and arbitration not to overlook Resolution’s new venture, ‘Resolution Together’.”

Natalie Sutherland said the key hurdle she foresees is burnout:

“We are still experiencing the Covid aftereffects and we’re still adapting to a hybrid way of working so I think family lawyers should always have in mind their own mental wellbeing and we should check in with each other more often.

Being a family lawyer is a stressful and emotional job and we want to have longevity in our careers so that we can continue to help clients. For that, we need to be healthy.”

Lucy Theobald, Director at The Family Law Company, said that “pressures on the economy and financial uncertainty may mean lower investment in legal, particularly for SMEs”, continuing:

“Those firms who can show a consistent and innovative approach to service levels and client experience have an opportunity to differentiate themselves.”

Claire Holland noted the issues that may arise around fees and affordability:

“With more separating couples potentially struggling to pay legal fees, and with continuing Legal Aid cuts, many family law firms could find it challenging to secure clients because the clients may struggle to pay their fees.

We’re having to reconsider and revise our fixed fee packages to make our legal services more affordable.”

Sue Ellingham, Senior Associate in the Family Team at Ashfords added:

“As solicitors, getting to grips with the digital portal for contested financial remedy proceedings to ensure documents, applications, and court bundles are correctly uploaded and filed [will be a hurdle]. This will also involve – when the time comes – helping litigants in person to also navigate the new system.”

2023 brings cause for optimism

Despite the obvious hurdles that family lawyers must overcome in 2023, there are plenty of reasons to be excited for the coming year.

For example, Graham Coy noted his optimism around Resolution’s “Working Together” campaign which is “a new way of working which enables lawyers to advise couples together as they seek to separate and divorce”.

Natalie Sutherland said she is “incredibly excited about seeing the law community embrace the fertility in the workplace conversation and seeing law firm after law firm acknowledging how important this issue is for employee wellbeing and taking steps to support their staff”, adding:

“When Somaya Ouazzani and I started this conversation with In/Fertility in the City in 2021, we had no expectation that it would have such an impact. Seeing the positive changes that have already been made – and which I am sure are also to come – has made us incredibly proud.”

As an independent law firm, we place a high value on client relationships and ensuring that people receive a personal service that makes them feel heard and valued,” added Claire Holland:

“We’re excited to continue offering a niche family law service to our clients, that has their best interests at heart, and demonstrates the value of high-level legal support and assistance.”

Ruby Holland also noted that “[the] move away from paper cases to a more universal digital portal for financial remedy proceedings which will provide a more centralised system for filing and lodging documents with the court”, which Holland foresees “will allow everything to be more easily organised and regulated”.