Steps in the right direction – modernising the court for family property disputes

The court system is under pressure to perform and various recommendations have been made recently. Many of the proposed changes would help those people who are locked in a dispute relating to family property – such as the administration and distribution of a deceased person’s estate.

Earlier this year the creation of a more flexible style of court room was suggested by legal think tank JUSTICE as part of its recent report on the reform of the court estate. Restrained by their standardised layouts, the report identified that courts are not always best suited to the dispute in question and are not often user friendly.  Part of the report suggests “pop up courts” inspired by the travelling set of Question Time and justice spaces with moveable furniture which can be adapted to suit the type of case and the needs of the users. The report also recognises that there is a need to invest in technology to modernise and digitise court processes.

Claire Dennison, an associate who specialises in contentious trusts and probate in our Southampton team agrees with the concepts. She believes “many courts are old fashioned and lack the technology which reflects the reality of modern day living. Courts were not created with the end user in mind and this can create difficulties when seeking access to justice – Courts need to be more affordable and accessible”. 

She explains “my clients are often struggling emotionally following a death. They are often in court face to face with members of their family who they now have a disagreement with. The very formal and adversarial nature of our courts is wholly unnecessary in such cases and can make the parties very uncomfortable. Having a more relaxed and user friendly court room would definitely benefit many of my clients”.

More recently a number of ground breaking reforms have been recommended by a senior member of the judiciary in a bid to bring greater access to justice. As part of his Civil Court Structure Review, as well as recommending far greater use of technology, Lord Justice Briggs has said that he would recommend that the Family Court should be able to deal with claims arising out of the Inheritance (Provision for Family and Dependant) Act 1975 and claims under The Trusts of Land and Appointment of Trustees Act 1996, usually about the beneficial ownership of land. Claire explains that “this recommendation is pleasing as some Inheritance Act cases are directly linked to principles applied frequently in the family court and as such are better suited to be heard in that court”

 The Briggs report notes that judges who undertake both Family and Chancery case management outside London have used their experience in the Family court to introduce a measure of judicial early neutral evaluation into litigation about family property. Claire notes that “the prospect of having such cases heard in the Family court where appropriate is likely to increase the use of judge led settlement discussions as the Family court frequently engages in such processes –This can greatly benefit clients with a family property dispute as it provides an opportunity to narrow the issues or completely conclude what may otherwise be a lengthy, costly and emotional journey”.

If the Government follows these recommendations we can expect a far more modernised process for the hearing of family property cases and that will allow greater access to justice for those in dispute.