The Family courts are now placing greater emphasis on resolving family disputes without turning to the courts.
Rule changes which came in in April 2024 give Family judges the powers to halt court proceedings requiring couples to attend non-court dispute resolution measures (NCDR) before the proceedings may continue. Family judges can also make an order to contribute to legal fees should one party fail or refuse to engage in NCDR. Most commonly NCDR will be mediation (with or without solicitors), but other forms of NCDR are available
Separation and divorce is rarely an easy decision and can be made harder by having to apply to the courts for child arrangements or to determine how finances should be divided.
While alternative dispute resolution measures have long been available to separating couples and encouraged, there has been no obligation to adopt them. Now, the emphasis is for parties to use, not just consider NCDR, unless there is a very good reason not to do so, such as in cases with domestic abuse or violence.
For a long time, individuals have had to attend a mediation information and assessment meeting (MIAM) before being able to issue court proceedings unless an exemption applied. In this meeting, an accredited mediator will explain the alternatives ways to find agreement without turning to the courts, but attending a MIAM has often been a tick box exercise.
The new measures introduced now mean that:
- Both sides are now required to complete and submit a new form at least seven days before all hearings to explain whether or not NCDR is suitable in their case.
- The court now has a duty to encourage both parties to consider NCDR at every stage, including the power to delay hearings giving parties time to resolve matters outside of the courts.
Most significantly, and in a marked change to the default position that each party pays their own legal costs, the courts can now require an individual to contribute to the other’s legal costs should they refuse or fail to engage in NCDR. While this sounds good in theory, as most types of NCDR are privileged a judge will never be able to know if someone has taken an unreasonable stance in NCDR, all they need to have done is gone through the process.
There are, of course, many good reasons to resolve family disputes without resorting to the courts – it will keep costs down and will greatly speed up resolution. But now, unless there are compelling reasons, separating couples will be required to explore ways to resolve their differences before going all the way to trial.
These are early days and why there are reported decisions of judges halting proceedings and requiring couples to attend NCDR, only time will tell as to how much this becomes the norm, particularly in cases where one or both parties do not have legal representation.
If you have any questions on how these changes will affect you please do get in touch.
Contact our Family and Divorce Teams
The Family and Divorce at Bishop & Sewell have a wealth of experience in dealing with divorce and separation, including all financial aspects.
For initial advice or to arrange a meeting with one of our team, please email family@bishopandsewell.co.uk or contact 020 7631 4141 and ask to speak to our Family Law team.
The above is accurate as at 18 July 2024. The information above may be subject to change.
The content of this note should not be considered legal advice. Each matter should be considered on a case-by-case basis.
