• March 28, 2024
 Chair of Law Society Family Committee shares her insight

Chair of Law Society Family Committee shares her insight

Mena Ruparel is chair of the Law Society Family Committee, arbitrator (financial) and a consultant solicitor.

She has authored two handbooks for the Law Society about Matrimonial Finance, she regularly writes and lectures on family law matters. She is a member of the Pension Advisory Group and helped to write The Guide to Pensions on Divorce. Mena has a portfolio career and also teaches and examines on the topic of ethics for lawyers.

She recently spoke to Today’s Family Lawyer sharing her insights on the sector.

What are the big family law issues in 2021?

2021 is set to be a big year for family law in England and Wales. We have seen the Domestic Abuse Bill gain Royal Assent, the Law Commission’s report on marriage is due in summer and ‘no-fault’ divorce will be introduced in Autumn.

I’m pleased to see family legislation taking strides to come into the 21st century with online issuing and case management, I look forward to working on these issues with the Family Law Committee during my time as chair.

How have family lawyers coped through Brexit and the pandemic?

We have been in regular contact with our members practising family law and the Law Society has produced guidance to help solicitors navigate private family law after Brexit. The Family Law Committee were quick off the mark in delivering several family law specific webinars with the experienced members of the committee.

Many family law firms have switched to remote working and adapted to representing our clients via remote hearings, while many have been inundated with new work which has arisen during the pandemic. It’s safe to say it has been tough, but we are getting through it.

There has been a change in how the profession deals with mental health and well-being too, with the pandemic highlighting the pressure facing solicitors as they handle an emotionally charged and demanding career.

It was heartening to see that mental health and well-being is a top item on the agenda of the Law Society’s president, I. Stephanie Boyce, who intends to address the current stigma around mental health in the profession and is encouraging us to be more open and honest about how we are feeling.

What has your experience been of the pandemic?

Personally it has been a difficult time for me as I lost my father quite early on during the first lockdown. Not being able to give him a proper funeral or see family during that time was devastating.

Professionally it has been easier to adapt to the new way of working as I was working from home most of the time before the pandemic. Sadly, as much of my work is training and speaking at conferences that has been put on hold until we can safely attend conferences which I hope will be at the end of this year.

What are the priorities for the Family Law Committee in the next year?

Our work plan is busier than ever this year. We continue to work closely with the Ministry of Justice (MoJ) to develop online processes, as well as on the implementation of the Divorce, Dissolution and Separation Act 2020.

We will also continue our engagement with the UK government’s Family Procedure Rules Committee to ensure our concerns around the practicalities of the Act are understood, as well as the senior judiciary and a whole host of other stakeholders to ensure our members’ views are represented as we begin to move back towards normality.

Alongside all of that, we continue to respond to consultations. We have just responded to the MoJ’s proposal to increase fees for family proceedings, and we are working very closely with the Family Mediation Council, which is currently consulting on changes to Mediation Information & Assessment Meetings (MIAM) standards among other projects.

How will divorce change after the Divorce, Dissolution and Separation Act?

‘No-fault’ divorce is a landmark moment and will change for the better the way couples separate. Until 2020, divorce law in England and Wales had not changed in more than 50 years and has long been due an overhaul.

The current divorce system means that separating couples either have to provide a fault-based fact against their ex-partner or spend years still married to obtain a divorce – which only exacerbates tensions.

It can be much harder for separating parents to focus on the needs of their children when they have to prove a fault-based fact or remain married to their former partner for years.

‘No-fault’ divorce will cut unnecessary conflict from the separation process – allowing couples to move on as amicably as possible and focus on what really matters.

However, there are still some practical details which need to be assessed.

Since the government implemented the Legal Aid, Sentencing and Punishment of Offenders Act in 2013, legal aid for early advice for family law cases has been cut and the number of litigants in person in the courts has increased.

Early legal advice helps nip problems in the bud before they have a chance to escalate.

Family law is a good example of where early advice saves money. Before the 2013 cuts, solicitors providing early advice were a significant source of referrals to mediation – avoiding costly court hearings.

We commend the government for passing this landmark legislation and would welcome any opportunities to address our concerns around legal aid for early advice.

These ‘no fault’ reforms will bring our divorce law into the 21st century and ensure that going forwards, separating couples do not suffer unnecessary conflict. We look forward to welcoming the legislation in Autumn 2021.

What is the Law Society’s position on the Law Commission’s review on marriage?

It can be said that couples have faced a tumultuous time this year, with COVID-19 disrupting and changing the wedding plans for thousands of couples in England and Wales.

A recent study conducted in 2020 found that 71% of couples are rescheduling their wedding, with 5% saying they would cancel their wedding.

The Law Commission’s review of marriage could not have come at a more opportune time, as new restrictions on weddings have emerged during the COVID-19 pandemic meaning that couples are giving new thought to marriage and the rules which govern how and where they wed.

Many marriage laws have not been updated since the late 1940s – setting specific and often surprising requirements around how, where and when couples can wed.

This area of law has long been due an overhaul and the Law Commission’s review of marriage offers a much-needed opportunity to bring our marriage laws into the 21st century.

Allowing marriages to take place outdoors, in a greater variety of venues and with a wider range of officiants – including independent and non-religious belief organisations – will allow couples to have more flexibility and choice on their wedding day.

We also urge the Commission as part of its review to consider public legal education on the ‘common law’ marriage myth and what constitutes a legally valid union.

According to a 2018 survey on British attitudes towards ‘common law’ marriage commissioned by the University of Exeter and carried out by the National Centre for Social Research, 46% of people in England and Wales believe in ‘common law’ marriage.

‘Common law’ marriage does not exist and is one of our most pervasive legal myths. Couples in a ‘common law’ marriage can be left legally vulnerable and often find the division of finances, debt and property can become complicated if they choose to separate or if one partner dies.

There are many options for cohabiting couples including cohabitation agreements, shared property ownership and updating their will to name their partner as a beneficiary. As we look to modernise marriage laws, it is also vitally important to dispel the ‘common law’ marriage myth and ensure the public understands their rights if cohabiting.

What considerations do practitioners need to make as a result in the change in the EU family law?

It’s important to note that EU regulations on family law have not changed as a result of Brexit, however the UK are no longer bound by them (save for existing family law cases).

New cross border family law cases with EU 27 member states will now require practitioners to consider Hague Conventions together with Member States national law. At this stage, it doesn’t look as if the EU will agree to the UK joining the Lugano Convention.

There have also been changes made to our domestic law as a result of Brexit. Family solicitors in the UK will need to make sure they are abreast of these changes. The webinars we took part in last year can still be accessed for members who feel they would benefit from them.

Do you think the sector has embraced MyHMCTS? Have family lawyers faced any challenges/obstacles?

The availability of online processes like MyHMCTS have been particularly useful during the pandemic in terms of remote working, such as the online divorce service, where you can issue new applications, view case details and take action to progress cases as needed.

However, any IT system, like MyHMCTS, will inevitably fail from time to time and there will be instances where users are unable to access online facilities or there are issues with the service, such as the technical issues  on the online divorce represented respondent journey.

There must be alternative options when technology fails. The Law Society has advised HMCTS that it is important that there are fully developed and clearly understood contingency arrangements in place for when such IT failures occur.

For legal professionals, the increased use of technology may require some to upgrade their IT equipment and/or broadband service to make sure they are compatible with the HMCTS system requirements which can be costly for small and medium-sized law firms.

Do you feel the pandemic as a whole has had a positive impact on family law in terms of opportunities to innovate? Such as the family courts embracing technology?

“We generally agree that the digitisation – such as MyHMCTS – of existing processes which aims to improve inefficient paper-based services will make processes more accessible, simpler, faster and more cost efficient for courts users, while it will improve efficiency through better case management systems for legal professionals.

One of the obvious innovations has been the widespread use of remote hearings to ensure hearings can take place when the attendance of all participants is not possible or practicable.

Remote hearings have practical benefits – they save time and cost for the client. The Law Society understands procedural hearings (involving judges and advocates only) can work quite well remotely, and that these should remain a permanent feature of the justice system.

Hearings that involve vulnerable parties, unrepresented litigants or witnesses, and live evidence, however, are likely best served by a face to face hearing.

Our concerns around remote hearings, however, are that removing physical face to face contact can create difficulties in determining the extent to which the client understands advice provided, the reliability of technology and whether users have access to the necessary tech to effectively engage in a remote hearing.

We would like to see a thorough evaluation of the evidence before there is any widespread adoption of remote technology for more complex hearings, including a full analysis of the justice impact.

Toni Ryder-McMullin

Toni is the Media Officer for Today’s Conveyancer, Today’s Wills & Probate and Today's Family Lawyer.

I worked for a law firm for 16 years, during my time at the firm I worked as a company commercial legal secretary for 7 years but changed careers and moved into marketing for the remaining 9 years – where I covered all aspects of marketing.

While in the marketing role, I achieved a CIM Professional Certificate in Marketing and CAM Diploma in Digital Marketing.

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