New family rules, but same issues?

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OVER the years, we have considered most areas of family law in this column, from new legislation to public consultations, the effects of our changing society on the family and the timeline of how changing attitudes have sometimes helped to shape our laws, or possibly is it the other way around?

So whether you’re about to marry, or you are living together, or if you are a parent or grandparent, you have probably been affected in some way by the issues raised.

The latest legislation designed to move forward and modernise the code of family law came into force last week in the form of The Family Procedure Rules 2010.

The new code, including the much-discussed ‘compulsory mediation’, has four key objectives.

It aims to achieve:

n the modernisation of language used in family court proceedings

n a streamlining of procedures and harmonisation with the Civil Procedure Rule

n a single practice

n alignment in all levels of courts dealing with family issues.

In other words, the intention was a single set of rules for family proceedings in the High Court, County Court or Magistrates Court, which will, it is hoped, make the processes in court faster and more efficient.

The new Rules also feature Practice Directions streamlining and unifying the guidance, rules and forms for different courts and types of proceedings.

So what are the key differences if you decide to divorce this month, from someone who started proceedings last month?

As always, professional legal advice is advised if divorce is the only way forward, and that has not changed.

A key change is the mediation element.

Quite simply, if court proceedings are taken, the court wishes now to know at the first hearing whether mediation has been considered and if not, the court may (and probably will) refer the parties to mediation before the proceedings can continue.

There are exceptions to this rule, including:

n where one party refuses to mediate or can’t be found

n where domestic abuse including a police intervention is an issue

n where there is social services involvement or child protection issues

n and, last but not least, where the parties are already in agreement.

By its very nature, as its name suggests, mediation needs engagement and openness to work and there is no doubt that as a process it can be very successful.

Up to last week pre-divorce resolution of issues through mediation depended largely on the couples entering into it voluntarily and most important of all, with a will to resolve issues that, particularly if children are involved, might become a source of prolonged or bitter dispute.

Couples on the whole entered into mediation voluntarily, with a will to sort their issues out together amicably.

So how does that sit with compulsory mediation plans?

Mediation has grown in popularity over the last few years and has shown itself to be a welcome element in the divorce or separation process.

It can create a better atmosphere and environment to resolve issues.

Trained mediators can also help people to focus on what matters and move on in a more positive way, which is essential for parents who want the separation to impact as little as possible on their children.

Compulsory is always an emotive word.

But mediation shouldn’t be thought of in a negative way.

While the compulsory element might not be an ideal approach, the bigger picture is better communication.