General characteristics of family law
One sometimes hears lawyers from other practice areas describe family law as “light” on actual law. It is true to say that family lawyers utilise a range of professional skills, in addition to knowledge of the law, but the breadth and depth of family law should not be under-estimated.
The law relating to families is highly politicised and what family law is light on, is significant legislative reform. Key pieces of legislation such as the Matrimonial Causes Act 1973 and the Children Act 1989 have been amended frequently, but radical reform has been lacking for some time as illustrated by the failure of the government, at that time to implement key aspects of the Family Law Act 1996, specifically the no fault divorce provisions and the recent failure of Lord Lester's Cohabitation Bill, (working with Resolution), to get beyond committee stage.
Family lawyers are therefore more reliant on case law for guidance than other practice areas, but family case law can lack both clarity and practicality for the average family case. The majority of financial cases which reach the higher courts involve “big money” and in those involving children, disputes over the facts are often extreme.
On the international front England and Wales lags behind other European countries in the development of family law, for example, on issues such as marital agreements, upon which the Supreme Court in the recent judgment in Radmacher Footnote 1 shed some light. Another area is that of on gender neutral marriage, as already brought into force in countries such as Norway and Sweden. Decisions of the European Court of Human Rights have increasingly directed domestic law, leading to reform, e.g. the Gender Recognition Act 2004.Footnote 2
Characteristics of family practice
The majority of family lawyers are generalists in the sense that they undertake work across the broad spectrum of family law, from acting for spouses/civil partners, including divorce/dissolution, financial provision and private children disputes, to cohabitant disputes, with a large sprinkling of civil procedure and costs issues, together with equity and trusts. Other family work includes inheritance claims,Footnote 3 domestic abuse with its overlap with criminal law, child abduction and public children proceedings, care proceedings and adoption. Some family lawyers at niche or large firms may be specialists in one of the above specific areas.
In addition, with increasing frequency, family disputes involve international aspects, ranging from ownership of a holiday home (in France for example inheritance law relating to property is markedly different from England and Wales) to jurisdiction and forum disputes.
The challenge for family lawyers is to be familiar, not only with family law, but also with all its overlapping areas, such as civil law and procedure, trusts and equity, criminal law and international law and to stay up to date with this encyclopaedic range of law in a time efficient manner.
Sources of family law
With the fast pace of developments in family law, online sources as well as print loose-leafs are at the heart of family research. The main subscription publishers for family law are LexisNexis Butterworths (LNB) and Jordans. There are also a number of useful free sources online and, as detailed further below, the increasing presence of social networking sites in the family law arena as a source of news, information and networking.
Loose-leafs and textbooks
Both LNB and Jordans publish a wide range of loose-leaf commentaries, which are also available via their online services ranging from the seven binder encyclopaedic Butterworths Family Law Service (BFLS) to specialist loose-leafs such as Duckworths Matrimonial Finance (Jordans) and for children specialists Clarke Hall and Morrison (LNB) and Hershman and McFarlane (Jordans). Loose-leafs are updated by regular issues ranging from seven (BFLS) to three times per annum.
The two key family lawyer organisations, Resolution (formerly the Solicitors Family Law Association) and the Family Law Bar Association (FLBA) produce a range of textbooks and guides, such as the FLBA's annual financial calculator At a Glance and Resolution's consent order precedents. Other texts include the recently published Law Society ADR Handbook (in conjunction with Resolution) and Sweet and Maxwell's Cohabitation: Law and Precedents.
Key texts on court practice and procedure include the loose-leaf Rayden and Jackson on Divorce and Family Matters (LNB) and annual Family Court Practice The Red Book (Jordans).
Legislation
With the lack of wholesale reform it is especially important for family lawyers to keep a careful eye on amendments to existing legislation, frequently by statutory instrument and ascertain whether legislation used for research is fully updated, i.e. consolidated.
Free online legislation sources include www.opsi.gov.uk and www.familylawweek.co.uk but legislation on free sites is not fully consolidated. Online subscription services such as LexisLibrary include fully consolidated legislation. Online service Lawtel draws its legislation from OPSI.
Case law
Jordans publish both in print and via their online service the law report service – Family Law Reports (FLR) which is also available in LexisLibrary along with Family Court Reports (FCR) and All England Reports (All ER). Free judgment sources, either with a short digest or with only the judgment available, include www.bailii.org, which also includes unconsolidated legislation and a useful World Law Resources section and www.familylawweek.co.uk.
LNB's practice focused online service LexisPSL provides, inter alia, case law pre-sorted by topic and updated daily. Lawtel includes judgments from lower court decisions which may have some useful local application although lower court practices tend to vary considerably and are not binding.
International
A family lawyer may only occasionally need to undertake in-depth research on international regulations as they impact on family law but it is important to keep up to date with major changes. Current awareness alerts via online subscription services offer filtering options. Free current awareness sources include Jordans Family Law Newswatch and the previously mentioned www.familylawweek.co.uk. This is where time spent keeping up to date versus chargeable hours comes into play. Depending on the degree of specialisation, the filtered specialist online subscription service will save time trawling through lengthy free updates.
An extensive database of EU legislation and news is also available via the recently launched European Justice Portal at https://e-justice.europa.eu/home.do. For brief guidance on international issues many other jurisdictions have useful government websites which may be available in English or otherwise translated with an online transaction tool such as Google Translate, although this can be a little hit and miss.
Social networking
Family law is a collegiate practice area and generally family lawyers are happy to share knowledge and debate issues. This can be a useful source of current awareness information if approached with some discipline.
Social networking sites such as Twitter, LinkedIn and www.familylawforum.co.uk provide the opportunity to exchange ideas. The recent Legal Services Commission (LSC) family contract tendering fiasco was the subject of considerable debate on online forums which also served as a source of news in a fast moving situation.
Government policy impacts on family law on a daily basis and many government bodies are online – for example on Twitter it is possible to “follow” the Ministry of Justice newsfeed @MoJGovUK. Numerous newspapers and journals have active and useful Twitter feeds including @GdnLaw @Lawsocgazette and @NewLawJournal and obviously there are many more. Solicitors group Resolution is also active on Twitter (@ResFamilyLaw) as are numerous firms and individuals (e.g. Pannone's feed at @TheSolicitors). Legal publishers also “tweet” – see @LexisWeb and @JordansFamLaw.
The key with social networking is to approach it with a light touch. Set up a business-only account on Twitter for useful feeds and for your own “tweets” and a separate account for any personal “tweeting”. I maintain a Twitter account at http://twitter.com/geraldinemorris.
Hot topics in family law research
Guidance on case law interpretation
As indicated previously, family law is case law heavy. Judgments are frequent but not always essential reading and digests are invaluable for sorting out the wheat from the chaff. When leading cases emerge there is usually a great deal of anticipation in the family law community (recent examples being Imerman Footnote 4 and the forthcoming Supreme Court decision in Radmacher Footnote 5). Reliable sources of respected commentary are the starting point for research and, for more immediate information, judgment sources with digests and journals are useful.
Family Procedure Rules
The new Family Procedure Rules are expected to come into force in the spring of 2011. Updates from the committee set up for this purpose are available at www.justice.gov.uk/about/family-proc-rule-committee.htm. The rules will introduce uniformity across all levels of family courts and are as comprehensive as the sister Civil Procedure Rules 1998 with accompanying practice directions and forms. Detailed commentary in loose-leaf sources and journals together with new titles focused on this specific area of change will start to emerge towards the end of 2010.
Wider family law issues
Depending on areas of specialisation, practitioners will also need sources for civil procedure e.g. The Civil Court Practice, the Green Book, (LNB) and government sources such as www.justice.gov.uk/civil/procrules_fin), trusts and equity and tax. Alternative dispute resolution (ADR) is at the forefront of family law developments, with useful resources in the members section of the Resolution website (www.resolution.org.uk).
Conclusion
This article has hopefully demonstrated the in-depth and wide-ranging knowledge required by family lawyers and the importance of authoritative and reliable sources. Time management is essential as the wealth of available information can be overwhelming in this fast-paced practice area. Honing online search skills is worthwhile, for example using “connectors” (e.g. divorce w/3 jurisdiction will locate the word divorce within three words of the word jurisdiction) as LexisLibrary can usefully distil search results. Pre-sifted online services such as LexisPSL can save a considerable amount of time searching.
There are plenty of resources in family law, the key is using them with knowledge of what you are actually looking at (how often it is updated etc) and being open to new ways of family law research.
