Undue interference

The setting up of a Family Court has been in the pipeline for the past decade. The government had also established a commission to put forth its recommendations in this respect. Notwithstanding that a detailed report was drawn up several years back, it has never been implemented. Suddenly, the government is proposing the introduction of a number of extensive amendments that completely disregard the recommendations of the commission.

My scepticism is specifically being levelled at that section of the white paper entitled: The Social Process.

Judge Noel Arrigo, chairing the commission, recommended that the Family Court should have, at its disposal, experts from the social field. It was opined that if a marriage breakdown could be averted, then the court could, with the consent of the spouses, appoint one of the said experts to conduct conciliation and mediation proceedings. The white paper, however, is totally out of line with all this.

It is being proposed that prior to any legal proceedings being instituted, spouses wishing to separate must necessarily undergo a process of conciliation and mediation. The incongruency of this is upheld in two further clauses contained within the same white paper: Clause 4.13 states, inter alia, that "One cannot force a person to go to counselling or undergo therapy". Similarly, clause 4.18 holds that "the conciliation and mediation process, while necessary in itself, cannot unreasonably deny a person's rights at law by subjecting the legal action to a conciliator's/mediator's decision". Can the white paper be more contradictory than this?

Complicating further matters, if following the tedious and long-winded process of conciliation the parties still wish to pursue separation, then they are subsequently required to consider mediation as an alternative to court litigation. The parties are therefore being denied the freedom to do as they please and consult their trusted legal advisers.

It is instead the conciliator and, hence, an individual having no knowledge whatsoever of what legal consequences a separation entails who, by law, will be granted the right to interfere and advise the parties.

What is even more appalling and ethically unacceptable to me is the fact that it is then the mediator himself who draws up the mediated separation contract. It is ridiculous that even at the stage of mediation, the parties to a separation are being denied the freedom to consult their lawyers in order that the said lawyers may draft the separation contracts themselves.

Finally, even in the case of consensual separations, the mediator is nonetheless being given a role to play. Clause 4.21 is proposing that when the draft consensual separation contract is submitted to the judge, it is then referred to the mediator who has the power to request the parties for information regarding all the patrimonial and social issues involved in their separation. Subjecting the advice given by the parties' lawyers to the discretion of a mediator is an outright humiliation to the legal profession.

With all due respect, I firmly believe that the person behind this white paper has never practised as a lawyer and, hence, has absolutely no idea and does not appreciate the efforts lawyers make in order to achieve an amicable settlement, which efforts are proven to be successful in 90 per cent of the cases.

Furthermore, as one of such lawyers, I feel profoundly insulted by what is laid down in clause 4.20 of the white paper, in the sense that it is being alleged that separation contracts are being concluded in a manner that is heavily weighted in favour of one party.

Is the government aware of the fact that, at present, consensual separation contracts must necessarily be referred to an independent and impartial judge sitting in the Second Hall of the Civil Court and that then it is up to that same judge to approve the terms of the separation? Does the promulgator of the white paper think that suddenly a mediator is more qualified and experienced to resolve such issues than the judge, a doctor of laws?

Anyone undergoing separation proceedings needs none of this nonsense. It makes more sense to have separation proceedings that are more expeditious and efficient than they currently are. It is to be kept in mind that the government issues white papers in order to generate a reaction and then decide accordingly. I sincerely hope that, even in this case, the government thinks twice before introducing this white paper as a bill in parliament.

Dr Herrera is a Labour MP