This article originally appeared in full in The Scotsman on Thursday 2nd November 2017.
Courts have not kept pace with attitudes to relationships, writes David Lee.
The definitions of family, couple and marriage have changed dramatically over the past decade, but has the legal system kept pace with society’s shifting attitudes?
Gillian Crandles, a family law partner at Turcan Connell, said: “The law on divorce is much clearer, while the legislation on cohabitation is very wide and it is sometimes difficult to see if someone has a claim or not.
“Case law is still evolving and legislative intervention will be needed to give us the guidance we need to give our clients the best possible advice.”
The Role of Judges and Sheriffs in Family Law
One area where clients are well-served, is the increasing specialisation of judges and sheriffs in family law.
She believes the appointments of Lord Brailsford and Lady Wise – and sheriffs with family law expertise – have been a hugely welcome step.
“There is excellent case management and the judges really know their stuff,” says Crandles.
Crandles comments that the family courts could improve further by making much better use of technology:
“It’s going more slowly than it should, especially in terms of co-ordinating documents, but it’s coming and it will make a real difference.”
An Emphasis on Sworn Written Statements
She also identifies progress in the greater emphasis on sworn written statements:
“They save the court time and make the process more efficient. However, you are front-loading the cost because it takes a huge amount of time and effort to get these statements into the right form.”
Overall, Crandles argues, clients are being better served, despite some teething troubles:
“There is a better understanding by the courts of what clients want and of the range of options available to avoid going to litigation.
“We have a good, powerful set of tools and you need to look for a bespoke solution for each particular case. Some people manage very well with mediation, especially where the issues are child-related and not financial.
“Collaborative practice can help make decisions in the best long-term interests of the family, using a range of experts, and arbitration can help bridge the gap where there is perhaps one main sticking-point to moving forward.”