The fusion of family law and cutting-edge technology is no longer a distant prospect – it’s a reality that will reshape the way legal services are delivered.

In this article, Victoria Nottage and Amanda Bell argue that not only will technology bring positive changes to the ways that lawyers provide services to their clients, it also presents exciting opportunities to bridge the long-standing gap in access to justice.

Technology’s role in family law

Technology is already playing a crucial role in the delivery of services within family law.

The court’s introduction of the online portal has been transformational. The gateway to divorce proceedings is no longer the preserve of the legal professional. Litigants are guided through the administrative process of obtaining a sole or joint divorce and in the latter case, what to do if consensus falls away in the meantime.

Virtual court hearings and remote access capabilities have become a standard feature of proceedings in the wake of the COVID-19 pandemic and have now practically replaced telephone hearings at financial remedy first appointments. These technologies allow proceedings to continue even when physical attendance is impossible or impractical, ensuring that justice is not delayed.

Digital case management systems are streamlining administrative processes, reducing paperwork, and improving the efficiency of case handling and the draft FPR PD 27A released on 12 September 2024 reflects the fact that electronic bundles are commonly now used in most family proceedings.

Whilst these examples of innovation emanating from HM Courts & Tribunals Service (HMCTS) are already transforming the experience of divorce and separation for thousands of people (litigants and lawyers alike), technology is also being applied within law firms and legal service providers, to help lawyers be more productive, manage more cases and achieve better outcomes for clients.

Machine learning and artificial intelligence (AI) applications for family lawyers

Given that clients use technology in their day-to-day personal and business lives (from online banking to AI assistants), it’s not surprising that they are increasingly expecting the lawyers involved in their personal lives to be employing available technology.

Within law firms tasks traditionally performed by hand are increasingly yielding to automation. This is nothing new. Years ago, trainee solicitors would search through bank statements manually looking for specific transactions. A simple ‘Ctrl + F’ now does the trick in a fraction of the time and that’s not controversial. However, the scope of automation is expanding. Open banking now allows third-party financial service providers to secure access to consumer banking and transaction data from banks and financial institutions using application programming interfaces (APIs). This technology is available now (some family lawyers will have seen it in action thanks to ClearCourt, a web-based digital platform designed to assist in the disclosure process on divorce and separation).

Not only can open banking technology perform a task more efficiently, it protects against the manipulation of bank statements in financial remedy cases: a practice seen in the case of X v Y [2022] EWFC 95. The tool BDGT goes further, using open banking technology and AI to scan through bank statements to create evidence-based budgets for clients.

Machine learning tools that can automate mundane process-driven tasks are now starting to be offered in the family law context (as an add-on to increasingly sophisticated case management solutions or standalone, like Thomson Reuters’ CoCounsel or Lexis+AI) with the potential to sift through volumes of paperwork to find missing information on demand, produce chronologies and summaries, and highlight inaccuracies or inconsistencies within a case presentation.

This technology can help lawyers in many ways – not just in the ways the vendor suggests. If lawyers understand how the technology works, they’ll be able to identify other ways that it could be applied within their business. An understanding of the technology will also mean that lawyers are better placed to carry out effective risk assessments (more on this below). We believe that we are nearing the tipping point where it is no longer acceptable for some mundane tasks which could be automated to be carried out by humans. As the Master of the Rolls Sir Geoffrey Vos suggested in his speech to the Professional Negligence Bar Association in May 2024, not only are we fast approaching the point at which clients will expect their lawyers to automate processes where it’s safe to do so, but there will soon be a professional responsibility to leverage available technology for the benefit of our clients.1

What about large language models (LLMs)?

When people from non-technical backgrounds talk about AI, they are often referring to LLMs. LLMs are advanced AI systems trained on vast amounts of text data to understand, generate and manipulate human-like text. They use deep learning techniques, typically based on transformer architectures, to process and produce natural language. Examples include ChatGPT and Claude AI.

Both Thomson Reuters and LexisNexis have launched their own LLM tools in England & Wales within the last few months, demonstrating the power and potential of free text searching pulling results from their own authorised, maintained and curated resources and are producing impressive responses to questions such as ‘What are the key legal principles and considerations relevant to varying spousal periodical payments orders in E&W’.

Some law firms have sought to develop their own LLM function which then requires in-depth consideration of the architectural structure of the data set and how best results can be pulled through.

It is important to remember that LLMs are not truth-telling machines. They are word prediction machines – they simply predict the order of words together. When trained on high quality data it is much more likely that the material will be right – however, this leaves two glaring problems: one issue with ChatGPT is that it’s had a lot of training on forums such as Reddit and those biases embedded from scrapping the internet cannot be erased. Secondly, when it doesn’t know the answer, the LLM produces an excellent lie (as has been seen in litigation in the US and more recently in England & Wales2).

For consumers, the use of LLMs as a Google search therefore introduces something of the Wild West. Already, answers to basic questions are tantalisingly close to the right answer but could be based on the law in Canada for example and not England & Wales or cite the pre-Brexit answer to jurisdiction. A layperson would not know. After all, these tools provide their answers with extreme confidence.

However, that is not to write them off. If done well, there is a powerful use case for LLMs to help bridge the access to justice gap for those who cannot afford lawyers. In Singapore, for example, an LLM tool was employed to help litigants in person to draft pleadings in the small claims court. The LLM has been trained on high quality pleadings that have been specifically selected and used within the closed server to produce pleadings that are better than an individual could produce on their own. When it goes before the judge it is generated with a header to tell the judge that it’s an AI-enabled draft.

In other domains, AI-powered chatbots are being deployed for initial legal advice and triage, providing 24/7 access to basic legal information and guidance. These tools can help individuals understand their situations better and determine whether they need to consult a lawyer, potentially saving time and resources for both clients and legal professionals. At SeparateSpace we have been awarded Innovate UK funding to develop our own AI tool to help our users navigate our digital platform.

The impact for access to justice

We believe that the technological advances described, combined with our society’s increasing willingness to embrace them, will vastly improve access to justice within our society.

Any professional working in the family law field will be familiar with the significant challenges facing the court system and all those attempting to navigate it. Overloaded courts result in lengthy delays, often exacerbating the emotional and financial stress on families seeking resolution.

Access to legal advice is key to unlocking better outcomes, including improved future financial outcomes (for example, ensuring pensions are considered within financial settlements) and protecting children from the impact of separation.3 Yet, legal advice as it is traditionally delivered is expensive and, since legal aid funding was restricted in 2013, is inaccessible for many. This issue has been exacerbated in recent years by the cost of living crisis.

Without professional support, and despite the policies promoting non-court dispute resolution (something that is not new – after all, MIAMs have been compulsory for the vast majority of cases since 2014), judicial intervention becomes the recourse for a considerable number of families desperate to get some sort of input into their situation. Others walk away from their opportunity to make financial claims.4

This is an access to justice crisis that costs the economy an estimated £51 billion5 as the financial burden spreads across various government departments, including the NHS, HMCTS and education.

There is an urgent need for more flexible, accessible support. The good news is that not only are technology-driven solutions starting to deliver just that but also the Ministry of Justice has embarked on the task of creating a framework for technological solutions to operate and thrive in this space, with the creation of the Online Procedure Rule Committee and its remit to support digital justice.

Our hope is that through the use of this technology, family lawyers will be able to support more people with their legal issues. There are thousands of people in our jurisdiction alone who are under-served by the way legal services are delivered at present. More of the mundane, routine tasks (like analysis of bank statements) can be done by technology, freeing up the time of the lawyers to take on more cases, focusing on more strategic activities like giving advice.

In the consumer-facing sphere, legal information websites and self-help tools are empowering individuals with knowledge and resources to better understand their rights and options: our own SeparateSpace being an example, alongside NeedsMet and Courtney Legal, which are other recent entrants to the market. Law firms have also created excellent free resources and tools: Family Law in Partnership’s Maintenance Indexation Calculator6 being an example. These digital tools are not a silver bullet; they cannot replace the expertise of a qualified human lawyer. However, they shouldn’t be underestimated because they are already helping to bridge the information gap for those who might otherwise be completely unguided.

We see a legal landscape where those people who currently end up in court desperate for some legal input, or walk away altogether from their financial claims, are instead supported through a combination of self-serve tools, and one-to-one legal advice at key moments through the process. The early legal advice pilot, which was given funding of £12m in the Spring 2024 Budget, is an example of an important development in this area.

Another critical consideration is ensuring equal access to technology-based solutions. As the legal system becomes increasingly digitised, there’s a risk of creating a ‘digital divide’ that could further disadvantage those without access to technology or the skills to use it effectively.

The upshot of technology in the practice of family law

Change in any context is challenging. For law firms, technology will impact the way we train junior lawyers and their role within the team. Indeed, we believe we are on the frontier of a shift in the way legal teams are structured. The junior roles will still be critical, but their nature will change.

Human oversight remains crucial in all technology-aided legal processes. While AI can provide valuable assistance, it is simply a tool and the nuanced judgment of experienced legal professionals is irreplaceable, especially in the emotionally-charged arena of family law. Careful implementation will be vital so juniors with access to AI research tools understand the nature of an LLM and why the results generated are what they are. We will be training people differently – juniors will need to master tasks manually so they have the skills and knowledge to effectively supervise the output from technology.

AI therefore presents a challenge for lawyers and raises thorny questions about how we evolve as a profession. However, it’s worth remembering that family law is distinct from other legal sectors because emotional intelligence and connection is at the heart of the client relationship.

Ethical considerations and potential risks

As with any innovation, there are ethical considerations and potential risks for us all to consider.

We have already seen the potential pitfalls of a computerised process that doesn’t allow for error where the mistaken selection of the wrong case name resulted in a final divorce order that could be not reversed.7

If lawyers can make mistakes then what about the risks for litigants in person, who are ignorant of the legal consequences of the final divorce order? The Fair Shares Report8 highlighted the enormous gap in knowledge about the financial consequences of divorce and whilst litigants in person are empowered to obtain a divorce order fairly easily thanks to the court’s online portal, the story is not the same for a financial remedy final order. Many litigants in person are not even aware of the need to obtain a final order in respect of finances.

Turning to technology designed for professionals to use, the ethics and risks have to be considered extremely carefully – and that in itself is a challenge because of the pace of innovation. Indeed, on 5 September 2024 the UK joined the EU and the US in signing the first international AI Treaty, drawn up by the Council of Europe to ‘fill any legal gaps that may result from rapid technological advances’.

So what should family law firms, especially those firms that don’t have multi-disciplinary teams around them, consider when presented with AI opportunities?

First, remember that AI is a tool to enhance your client service. When you are presented with any opportunity to consider new tech, you need to adopt the same risk approach as with any other opportunity and that will depend on a number of factors, crucially including the risk profile of your firm.

Secondly, think about training and the structure of the firm. We have already mentioned clients will be using AI products but juniors will also be using them, and it’s unrealistic to expect that their reliance on them outside work won’t transfer into the workplace. Think about adopting a culture of openness so that all juniors are encouraged to highlight where they have used AI to help with drafting a phrase or a term and to highlight that to their supervisor.

Thirdly, seek to get a good understanding of how the technology works and how to mitigate risk. Consider training in terms of understanding the opportunities and risks of the models that you are going to use. For example, with LLMs, output will be different each time. The prompt (meaning what the user puts into the LLM – the question they ask and the way they ask it) will impact the result. Providing context should improve the output but the same question posed 2 hours later will not produce the same answer. Training on prompt engineering is therefore critical. Just as important is understanding the content (referred to as the data set) on which the model has been trained. If you are thinking that you may like to explore the potential of having an LLM function across your internal resources, then you will need to think about the quality of your data set. This may also bring up GDPR issues relating for example to retention of client information.

Fourthly, take a multi-disciplinary approach to the extent you can – so use the interests and specialisms within a small team. Marketing, risk and compliance, knowledge and financial management are all relevant and it will be important to consider technological solutions from all these perspectives.

This is not an exhaustive list of issues to consider but perhaps gives an indication of the complexities involved in working with these new tools.

The future of family law practice

So far the groundbreaking potential of technological advances in the legal sphere has mainly sought to be exploited by commercial practices, many of which have entire teams leading the way (Allen & Overy (now A&O Shearman), for example). Alongside this we have seen an increase in the profile of Knowledge and Innovation specialists with many commercial firms creating positions on the board for people with this expertise.

As for family law, such a focus on technology isn’t a distant development that will affect only future generations of family lawyers. It is a transformation that has already begun.

That prospect shouldn’t alarm lawyers. Looking ahead, the future of family law practice in England & Wales is likely to be characterised by hybrid models of legal service delivery. These models will combine the efficiency and accessibility of technology with the empathy and nuanced judgment of human lawyers.

Continuing legal education will need to evolve to include training in legal technology and AI, ensuring that lawyers are equipped to leverage these tools effectively. Indeed, we believe that those legal teams that adapt and leverage new tools will be better equipped to serve their clients effectively in an increasingly digital world. That will involve interdisciplinary teams that bring together legal expertise and technological innovation. However, it must not be forgotten that the ultimate goal of technological advancement in this field should be to enhance, not replace, the legal reasoning skills, human expertise and emotional intelligence that so many family lawyers have in spades.