Family Law Update – New Rules
Those involved with family law will be familiar with the Family Procedure Rules (FPR) which are a set of rules governing the procedures used in Family Courts in England and Wales which came into force in 2010.
They will also be aware of the pressures that the Family Courts are under in servicing the number of applications being issued, which can often lead to cases being removed from the court list at short notice, and parties having to wait many months to receive court hearing dates.
“A recent update was made to the rules, which came into force last month, and now seeks to improve the approach to Non-Court Dispute Resolution (NCDR) in family law matters and encourage individuals to use alternative methods to resolve disagreements in relation to their finances upon separation, or matters relating to children” said Shannon Heathcote in the Larken & Co family law team. “
From 29 April 2024 all couples involved in financial disputes will need to give consideration to NCDR options before making an application to court.”
So, what are the changes?
The amended FPR introduces a new definition of NCDR and widens the scope for alternate dispute resolution which now includes other options such as arbitration, evaluation by a neutral third party (eg private dispute resolution) and collaborative law as well as mediation, which was the previous main focus.
With the definition being expanded, different methods for resolving disputes may be highlighted, offering parties an opportunity to explore various alternate dispute resolution processes rather than simply issuing a court application.
Parties must now actively engage in NCDR to try and resolve their dispute, and it is likely that if they attend before the court and have not done so, the Judge will want to know why no attempts have been made and may even adjourn the matter to enable the parties to attempt some form of NCDR if the Judge considers it appropriate.
Judges are therefore likely to be more hands-on with cases and expect an update at each hearing as to progress on dispute resolution.
The new update also sets out requirements on parties to complete, file and serve a form expressing views on NCDR to ensure continuous evaluation of alternative methods to resolve issues and reinforce the duty on Judges to continue to question if these should be implemented throughout the case.
If a party is opposed to alternative methods without good reason, the court will want to know why and this could lead to possible financial implications and affect who is ordered to pay costs if the matter continues to court. Good reason for not proceeding with NCDR options would of course be if the case involved domestic violence.
Essentially, the aim of this shift in the rules is to help couples consider ways of resolving disputes without going to court and to support amicable dispute resolution and the wellbeing of children by keeping matters less adversarial and out of court.
What does this mean for anyone going through a divorce?
A party will no longer be able to simply tick a box saying that mediation is not appropriate for their case. Where NCDR is not possible, an explanation will need to be provided and any failure to engage without a valid reason will likely have costs sanctions. It is therefore important that these new changes are embraced.
The Law Society President, Nick Emmerson, has said “We agree that supporting parties to settle their cases outside of court, and informing them of their options relating to NCDR is important.
Court should be a last resort because it is expensive, takes longer and can have significant emotional impact on parties. However, it is vital that there are no barriers to accessing the courts when this is necessary or appropriate. Mediation, therefore, should not be mandatory and access to the courts should be protected.
We are pleased that the changes to the rules retain access to courts, whilst encouraging and supporting parties to consider their options beyond the court process.”
These new changes to the family law landscape provide an opportunity for lawyers to keep parties out of court where appropriate, and to encourage parents and separating couples to consider out-of-court resolution options which not only releases some of the pressure on the court system, but also reduces the conflict time and costs that parties face when dealing with disputes.
If you would like further information on divorce or family matters, please contact Sheila Roberts on 01636 703333 or email at sheila.roberts@larken.co.uk.
