Family dispute has been known to be an unpleasant area of practice since the main task of a family lawyer is to resolve the many deep-rooted differences between couples. It would therefore not be unfair to say that family lawyers invariably end up “picking up the pieces”.
There has also been major changes in the practice of family law, ranging from the threefold increase in the number of Family Judges to the gradual application of civil rules and practice in the Family Courts. The latter is largely influenced by the recent effort to consolidate the different pieces of family legislation and rules in order to conform to civil practice and procedure. It however remains the case that there are essentially only a few ordinances and rules which makes it relatively easier for practitioners to familiarise themselves.
Family division currently has ten courts sitting on a daily basis. It is also common knowledge that Family Judges work very hard as apart from sitting full time, they also have to find time to write the judgements. Even so, there is still a lengthy waiting period before the parties can have their case heard which, by and large, is caused by their inability to reach an early settlement.
There are certainly advocacy training opportunities for solicitors as they appear in family courts more frequently than barristers, particularly in relation to pre-trial hearings (such as those required for Financial Dispute and Children Dispute Resolutions). A family lawyer who intends to become a specialist should represent clients as their advocate as he/she will be able to observe the inquisitorial approach of family judges as well as how discretion (an important feature of family law) is exercised, a practical learning experience that cannot be acquired from simply reading judgments.
The major advantage of a solicitor advocate is his/her clear grasp of his/her client’s case which is derived from his/her daily case handling and equips him/her with the ability to recall relevant or milestone events. Clients are certainly attracted by their ability to deal with the same lawyer from preparing their court documents at the start of the litigation through to its conclusion of their case by advocating their position in court. This arrangement in turn leads to costs saving since there are no additional fees for instructing counsel.
It cannot however be denied that the trust and confidence that clients have with their solicitors is an intensive one as clients will invariably count on their solicitors for emotional support during a difficult time in their life. It is not unheard of for a family solicitor to simultaneously assume the role of a counsellor.
Some high net-worth clients may consider it vital to have a senior counsel advocating their case, and more often than not this consideration depends upon whether or not there is senior counsel on the opposing legal team. It might well be a matter of appearances, but clients sometimes find the idea of having a smaller legal team than the other side to be an inadequate arrangement. It goes without saying that senior counsels bring invaluable expertise to the legal team since advocacy is an art which cannot be acquired through textbooks and judgments. It is therefore a good opportunity for aspiring solicitors to learn from the experts.
There is no question that the practice of family law has started to gain greater importance in the past decade or so and with the increasing wealth of couples, it has the effect of attracting experienced barristers to join the practice. This has made it difficult for young lawyers to participate in ‘big money’ cases but it nonetheless should not deter them from acquiring their experience in handling less substantial (but by no means less important) cases.
Wealth may well lead to complicated financial structures but couples still face similar problems in resolving matters arising from their marriage breakdown – a prime example being the future care arrangement for their children. Cross-border marriages are nowadays also very common in our community and extraterritorial enforcement of orders will become an issue when it comes to a divorce.
Solicitors have the advantage from their regular dealings with their clients to understand the problems that they are facing. Consequently, they are in a better position to come up with pragmatic solutions when it comes to considering the appropriate mechanisms in implementing the terms of a court order. By also being their advocates, solicitors will be able to offer a more comprehensive service to their clients which may well lead to an early settlement, thus dispensing with the need for costly and time-consuming litigation.
This article was first published in Hong Kong Lawyer, February 2018. For more information please contact Jonathan Mok on +852 2531 3401 or firstname.lastname@example.org