Rayden Solicitors are delighted to launch a series of podcast episodes on the Rayden podcast channel in which Laura Mons, lawyer and divorce mediator at Dutch law firm Smeets Gijbels, and Stuart Clark, Partner in our Epping office, discuss family law with a series of international guests. These meetings are now available to listen to across all channels here.
The idea for the series came from the IAFL European Chapter Meeting in Athens in May 2022. Following on from the insights gained during the Education Programme, Stuart and Laura thought solicitors shouldn’t need to wait to meet in person to be able to hear from fellow international family lawyers and noticed a gap in content available discussing law and practice in their jurisdictions.
Over the course of the last few months Stuart and Laura met with each other and with lawyers in France, Spain, Scotland and Ireland to discuss family law in those countries and in their home jurisdictions of the Netherlands and England and Wales. We are very grateful to Amaparo Arbáizar, Niamh Ni Ghairbhia, Susie Mountain and Charlotte Finnegan for taking time out of their schedules to record these episodes with Stuart and Laura.
Stuart discusses below different aspects that have resonated with him while recording the series.
“Family lawyers across many jurisdictions can benefit from the exchange of ideas, of ways of practice and of expressing and hearing about the grumbles about how the system works in our respective countries. The hope is that we can make ourselves, our client care and perhaps the law and practice in individual jurisdictions better.
“One aspect that stuck me most, and from which I think we as practitioners in England Wales can learn, is the approach taken in Netherlands and Spain to interim arrangements post-separation. The practical effect of separation can be one of the most fractious and distressing areas of conflict for our clients. If arrangements cannot be agreed this can lead to uncertainty and anxiety about living arrangements, childcare and financial provision in the short term.
“In England and Wales, if these interim arrangements cannot be agreed between the separating spouses, three separate sets of court applications are needed to resolve the situations.
“For living arrangements, an application under the Family Law Act 1996 may be needed to regulate the use of the family home, with a test of harm being the justification to ensure that separating partners can live separately whilst long-term arrangements are being processed either by agreement or through the courts.
“If childcare cannot be agreed, the courts are asked to intervene under the Children Act 1989. But with delays in the availability of judicial time, and in the absence of safeguarding concerns, the status quo can quickly take hold over the course of 6-12 months, without any redress for the parent who requires input from the court.
“For interim financial support, the party in need must make a full financial application followed by an application for maintenance. The aim is for such applications to be heard within 28 days.
“All the above takes time and legal costs. It puts pressure on the financial resources of the parties and on judicial resources of the courts. The status quo can take hold in circumstances where we warn our clients that the extreme discomfort of living together is not sufficient to oust the other partner from the family home, where the courts take significant time to process Children Act applications and where the costs of an interim maintenance application are prohibitive to the spouse who is already being squeezed financially (and who is then warned of the possibility of punitive costs orders).
“In the Netherlands and similarly Spain, when a divorce application is made the court will list a hearing to deal with interim arrangements very soon after the initial application. In listing such a hearing it is recognised that longer term issues, for example of child arrangements and financial division may take some time to resolve and so the parties need a helping hand in the meantime to resolve any practical disagreements.
“In the Netherlands and Spain, the court can make orders regulating the use of the family home and interim children and financial arrangements following this initial hearing. The hearing itself is relatively summary, but the fact that it is common to all divorce applications means that spouses focus their minds to either resolve these issues between themselves, and in the absence of agreement judicial input is given.
“Looking at ourselves in England Wales, and whilst I have some nervousness about such summary judgments being made, if such a system were implemented here it would significantly reduce the power of the status quo. It would prompt spouses to think quickly and carefully about who occupies the family home.
“The secondary carer might not be put off by court delays and it would alleviate the marginalisation which can take place where the primary carer is hostile to contact. Safeguarding would of course still be needed, but where there are no safeguarding concerns, the secondary carer can quickly seek judicial intervention to ensure their relationship with the children is maintained. The party in need of financial support would not be put off by the expense of interim financial applications, or by the threat of costs orders.
“I am perhaps an idealist, but part of the experience of meeting with lawyers from other jurisdictions is reflecting on what we can do better. I invite you to listen to this series and hopefully conversation can be started on the subject I have set out here, or on other aspects which strike your interest.”
Stuart and Laura are keen to continue with this project and invite other family lawyers to please get in touch if you wish to appear on a future episode.
