A Window to a Society’s Soul

Family disputes are perhaps the most dramatic examples of the impact that fear of having one’s basic human needs unmet can have on the individual. As in family disputes, the most basic needs of love, safety, shelter, and food, are often threatened.

We, as lawyers to the disheartened client going through a divorce, custody dispute or other serious and threatening litigation, would prefer the client to stay in the less needy and more intellectual level. Unfortunately, this is not always going to be possible.

The practice of family law is the ultimate arena since that is the place lawyers quite often lose ‘the self’ they created in law school.

We may not have experienced a personal injury or a theft of intellectual property, but each and every one of us has experienced the presence or absence (or lack) of family relationships.

Thus, we bring to these disputes the thoughts, feelings and fears of our own life experiences. We make judgments about rights and wrongs based on our own experiences.

The law in this area (at times) is highly subjective and (at other times) applied in a discretionary fashion. The values and beliefs we have acquired through our life experiences sometimes affect our representation of these facts in the courtroom.

How then is one to reconcile one’s training as an advocate, a warrior, ‘a hired gun’ to defend the weak, with the need to ensure that one does not blindly set out to wage war with only the client’s description of the battlefield? How does one balance this need with the equally important duty to ensure that concepts of reconciliation, mediation and counselling equally have a role to play?

As lawyers, it is relevant to direct parties away from a litigious course. So long as we recognise that the courts should be treated as a last resort (at least this is what the Woolf’s new landscape for civil litigation is all about) and now aptly recognised by our Judiciary, dispute resolution will permeate our lives.

Divorce is just one aspect of family law, and quite often, this is resolved by a non-contest of the party’s petition when presented. Financial claims, however, show a great frequency of contests.

Although the Woolf Reforms did not seriously impact on family law (in England) (save in respect of costs), we have adopted a significant and welcome change in our approach to litigation in family law.

Solicitors and clients will need to look very carefully at the way in which negotiations are conducted, and be aware that a failure to settle amicably could leave them very vulnerable to punitive orders from the court.

To this end, it is vital that lawyers who represent clients ought to take a very positive, if not, an objective approach to mediation offered by the courts.

The Law Society will also consider offering such mediation services so that the process of divorce and/or its ancillary matters are (and must be) less painful to the parties.

To this effect, some kind of accreditation should be given to such practitioners so that the area can be regarded as one of the significant specialisms of the profession.

In this way, the legitimate concerns of the parties and/or the mischievous or militant litigant can be addressed.

Solicitors and mediators ought indeed to work closely together. And indeed more thought should be given by lawyers representing petitioners before filing the ‘Certificate of Reconciliation’.

We are, after all, part of the justice system, and we have a vital role to play in supporting families and strengthening the institution of marriage.

The adversarial system of family litigation, which was discussed in Brisbane in September 1998, may be a thing of the past.

This July 2000 — again in Brisbane — the 10th World Conference of the International Society of Family will be revisiting areas of processes, practices and pressures in family law, and a new wave of ideas will be rightfully advocated in the face of new challenges, the demands of the new global knowledge-based economy, and the pressure that starts from our school-system.

The ‘balancing’ interests of children, which have always been regarded as paramount under our family law, with those of the parents, who it seems likely, will have increased rights of their own in relation to their continuing relationship with the children, is imminent. But the recognition of the need to protect children in high conflict cases by our courts must be applauded as there can be no keener revelation of a society’s soul than the way in which it treats its children.

‘Sister Woolf’ has yet to effect changes in family law in England, the Lord Chancellor in June 1999 not wanting to proceed with the planned changes to their Family Law Act 1996. However, this month (in England), new procedures on financial claims on divorce will be invoked.

Many of those procedures have been implemented by our Family Court, and those indeed will yield genuine benefits for the clients and the profession.

Whether the future of family law reforms moves towards controversial pre-nuptial agreements or the recognition of the modest rights of common law wives and cohabitees (with adequate safeguards) or a blanket formula to determine child maintenance, divorce law reforms must aim at more counselling and mediation. With this must come the realisation by the profession that the practice of family law is not just the business of conflict, but provides a window to a society’s soul.

Palakrishnan
President
The Law Society of Singapore

Mr Palakrishnan, the President of the Law Society, will be available to meet members at the Law Society's premises fortnightly, on Saturdays, between 10.30am to 12noon. These sessions are part of the Law Society's initiatives to reach out to Members.

The next sessions will be on 6 and 20 May 2000.