5 Trends in Family Law for 2021

1. International Chaos – Claire Wood, Legal Director, Rayden Solicitors, St Albans

A significant change that practitioners will face from 1 January 2021 is the change in family law as a result of the UK leaving the EU. Pre Brexit, the law was “first past the post” so where there was jurisdiction for divorce in more than one European Country, the country where a petition was first issued had priority and would deal with the divorce and financial consequences.  As the UK will no longer be a party to the European Regulation, this rule will no longer apply.  In cross border cases, we will therefore be faced with competing proceedings in different countries, with the English Court applying a test to ascertain the most appropriate court to make decisions in the divorce (“forum non conveniens”).  There will also be significant changes to cross border enforcement of children orders and financial awards and changes to the rules relating to jurisdiction for divorce, maintenance and children cases. Whilst it isn’t currently clear which international conventions will apply, it is widely predicted that there will be more litigation and uncertainty for international families.

2. Changes in divorce: The Online Portal, and No Fault Divorce – Rosalind Fitzgerald, Legal Director, Rayden Solicitors, Bishops Stortford

Solicitors may now file divorces and financial applications through the online portal My HMCTS, following in the footsteps of litigants in person who have been able to do so for some time.  My HMCTS has many bugs and annoyances, and is far from user friendly, but it has miraculously reduced waiting times from over 3 months to approve a financial consent order to a matter of days, with similar reductions in uncontested divorces.  The implementation date of the long awaited “no fault” divorce is also anticipated in Autumn 2021, legislation having been passed in June 2020.  No fault divorce will have a minimum ‘reflection period’ of 26 weeks and allow parties to divorce if the marriage has irretrievably broken down without having to prove adultery, unreasonable behaviour, or a period of separation.

3. Remote court hearings post pandemic – Julian Bremner, Partner, Rayden Solicitors, Beaconsfield

If the pandemic ever ends (surely it must end, yet at the time of writing in late December 2020 it feels like it will never end) then it is likely that the prevalence of listing remote hearings in the family court is here to stay.  The family court rapidly transitioned to remote hearings in the space of a couple of short weeks in March 2020, and nearly all directions hearings continue to take place by video or telephone.  It is likely that short hearings will continue to be heard remotely, although there has been judicial guidance about the types of hearing that are not suitable to be heard remotely, such as final hearings in care proceedings.  Many hearings are heard as remote hybrid hearings, where some parties attend in person and others remotely.  With the prevalence of e-bundles, in 2021, family lawyers will be finally divorced from their paper bundles and wheelie suitcases.

4. Delays, arbitration and private hearings – Julian Bremner, Partner Rayden Solicitors, Beaconsfield

Despite the slow move to remote hearings in the family court, there continue to be long delays for listings in the family courts, which were already lengthy pre-pandemic.  The court also uses telephone hearings – which are deeply unsatisfactory for all parties; including the judge.  2020 saw many couples, across all income brackets, turning to the highly effective private arbitration option. Parties also opted for private FDR hearings.  2021 is likely to see a continued meteoric rise in disputes being settled by Arbitration or private dispute resolution packages like the Certainty Project.  .  Hybrid mediation also looks about to take off in family law, with lawyers attending mediation sessions to fast track the process.

5. Variation applications – Claire Wood, Legal Director, Rayden Solicitors, St Albans

A likely consequence of an economic downturn is the increase in various applications that we see and we predict an increase in these applications during 2021.  When a divorce settlement is agreed or determined in a strong economy, a downturn will often lead to one party being unable to meet his or her maintenance obligations.  After the financial crisis and recession in 2008/2009, we saw a significant rise in applications to vary a maintenance award downwards – both child and spousal (maintenance for the ex-spouse).  A variation application involves the same level of financial disclosure as the original divorce process, so if the earnings downturn is just short term, some parties will decide not to pursue a variation.  In our experience, a variation application is often made in response to an enforcement application where a maintenance order has not been fully paid.

Written by the team at Rayden Solicitors