The future of family law according to LexisNexis
The legal sector is evolving at a rapid pace, adapting to the numerous opportunities and challenges it faces. From the cost-of-living crisis, shifting client expectations, increasing demand for specialist knowledge, and the emergence of generative artificial intelligence (AI) legal tech tools, today’s lawyers are embracing change. This is no different for family lawyers who are predicted to see a steady increase in demand in their practice area in 2024, and who are using tech tools, such as the MyHMCTS portal, to reduce the current backlog in the courts.
We caught up with Graeme Fraser, Partner and Head of Family at BBS Law to hear his insights on the future of family law. Read on for Graeme’s reflections on the current key opportunities and challenges in the market, the digitisation of the courts and the impact of generative AI on the practice area.
What are the key opportunities and challenges for family lawyers at the moment?
Legal advice remains a primary need for clients going through divorce and separation. It is particularly important to provide clients with informed early advice. Following the advent of no-fault divorce, some work is becoming less contentious and easier to resolve. Family lawyers need to move away from adversarial approaches and adapt to a more transactional way of working including instructing a single lawyer for both clients. The recession means that consumers may be more reticent about separating, as they may not have enough money to afford rehousing. Family lawyers need to adapt their practices to ensure that we meet client needs which evolve because of financially straitened times. The increasing pressure on the Family Court means that many cases do not get heard quickly enough, deterring use of the Courts for those who can afford private processes including hybrid mediation, collaborative practice, and arbitration. We will need to ensure that the services that we offer make sense and appeal to consumers as being at reasonable cost. Where administrative work can be done more efficiently through digitisation, paperless working, and generative AI, lawyers should be concentrating on advising to ensure that they can recoup their fees from chargeable work.
View family law practice notes, precedents and news articles
How do you see the family law market developing in the next five years? Are there opportunities for growth?
Family structures and resulting issues continue to evolve as increasing numbers of couples cohabit and have children outside of marriage. Therefore, areas of law such as cohabitation claims and surrogacy will continue to grow due to the numbers who require family law advice. England and Wales has a highly diverse community, and religious, cultural and international issues can be expected to arise which are complex and will be best resolved through specialist advice. While there will always be a need for specialist legal advice in complex financial remedies and children cases, consumers may increasingly opt for non-lawyer providers of services with a view to driving the cost down. As the Family Courts are saturated with case work, individuals will look increasingly to out of court solutions to resolve their disputes. Family lawyers who work with other family justice professionals such as financial advisors and family therapists are more likely to appeal to clients in providing a one-stop solution to their issues. As family lawyers are often one of the first points of entry when clients go through separation and divorce, working well alongside other professionals means that there is a better prospect of retaining clients for longer and more profitably.
What are the main legislative changes you would like to see to family law?
The law should reflect and recognise all types of family formation and meet the needs of children and families who fall outside the scope of the current law. Reforming cohabitation law rights on separation and death should be the next legislative priority. This should include updating Schedule 1 of the Children Act 1989 to meet the needs of children of a cohabiting relationship in the same way as children of a married relationship. Child arrangements on separation and divorce; and surrogacy law need reform. There should be a statutory requirement about how the voice of the child will be heard in child arrangement proceedings. There should be statutory time limits regarding the length of child arrangements proceedings and by when they should normally be concluded. Financial remedies on divorce legislation could be improved to offer greater certainty. Legislation could provide that pre-nuptial agreements are binding with suitable safeguards. Additionally, updating this legislation could clarify that spousal maintenance should be subject to term orders save for exceptional circumstances; and that non- matrimonial property (received as a gift, inheritance or acquired before or after the marriage) should not be shared, except when required to meet needs.
View family law practice notes, precedents and news articles
What are your views on the move towards proceedings being managed online? Do you think online ‘citizen’ access to the courts will reduce the need for legal advice?
The efficiency of MyHMCTS managing proceedings online will depend on the investment of resources so that the technology is sufficiently advanced to handle the caseload, and cope with increased traffic if, for example, there is a surge of applications. This requires not only sufficient investment in administrative staff, but also that there are enough judges available to deal with box work and to hear cases. Physical court buildings should remain and are preferable for trials and finding of fact hearings where reactions to cross examination can be more closely scrutinised. However, improvements in video and audio feeds used for hearings, and improved reliability means that technology will not stand still, improving the quality of information available to the court. The future will see greater opportunities to complete legal procedures online and aided by more sophisticated information provision and simplified procedures. Assisted digital support will enable people who would otherwise be excluded from accessing services to complete applications in family matters optimally. However, the importance of legal advice from specialist family lawyers should never be underestimated, since family law cases are frequently better resolved once people have the advice needed to make better informed decisions.
What impact do you think AI may have on how family lawyers work and advise clients?
AI is likely to play a part in family law, particularly once the family courts have developed a technologically advanced and comprehensive cloud platform. Such a platform allows for the synthesis and analysis of vast amounts of data which could improve the experience of using the family courts and potentially improve decision making. AI could help improve the collation, testing, weighing, and processing of information, particularly evidence against the pre-existing framework of legislation and case law to achieve fair and just outcomes. AI platforms could collect and test witness evidence, then detect and scrutinise inconsistencies of a person’s factual account. AI could also assist decision making by scrutinising reasoning for cognitive biases, the omission of relevant facts, and consistency of approach. However, use of AI can never replace the human mind nor the importance of human experience, and so it is difficult to see that important decision making should be delegated to AI. Another concern relates to how AI may be biased by its programming, which could be deliberate or nefarious. Humans are unlikely to use AI other than as a tool on the basis that humans are likely, for the foreseeable future, to be objectively seen as being more legitimate advisors and decision makers than non-humans.
