Family Law Cafe | Resolving family disputes out of court

On the 29^th of April an important change was made to the rules governing the family courts.

The change is intended to encourage parties to family court proceedings to use ‘Non-Court Dispute Resolution’.

‘Non-Court Dispute Resolution’ means a method of resolving a dispute other than through the court process, such as mediation.

The rules allow the court to require the parties to complete a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.

And the court can adjourn the proceedings to enable non-court dispute resolution to take place, even if the parties do not agree to the adjournment.

And in relation to financial remedy proceedings the court may make an order for costs against one of the parties if that party failed without good reason to attend a Mediation Information and Assessment Meeting (‘MIAM’) or non-court dispute resolution.

Clearly, the courts are going to be expecting more financial remedy cases to be resolved out of court, in particular through mediation.

But that raises the question: if you go to mediation to sort out finances on divorce, do you need a lawyer?

The answer is that it would most certainly be advisable to instruct a lawyer, even if you hope to resolve your dispute via mediation. There are three primary reasons for this:

Firstly, you will need advice, at all stages of the mediation process. It is important to understand that the mediator cannot advise the parties, who will need to seek their own legal advice. And anyone going into mediation will need advice upon what is a reasonable settlement, before they agree to anything.

Secondly, if the mediation is successful and results in an agreed financial settlement then that settlement will need to be incorporated into a court order (known as a ‘consent order’), to ensure that the settlement is final and enforceable. A consent order is a complex legal document, which should always be drafted and approved by lawyers.

Thirdly, there is of course no guarantee that mediation will be successful, in which case the matter will have to go to court. Obviously, it would be advisable to have lawyers ready to deal with court proceedings in the event that no agreement is reached in mediation.

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The Government has published its response to a consultation that it ran last year on resolving private family disputes earlier through family mediation.

The main proposal in the consultation was that mediation should be compulsory for most family disputes, with the hope that most disputes would then be resolved by agreement, rather than going to court.

But the Government has decided not to make mediation compulsory, following concerns that this could result in victims of domestic abuse having to attend mediation when it was not suitable or safe for them.

The Government has, however, indicated that it may still introduce compulsory mediation at a later time.

Meanwhile, the Government says it will bolster mediation, for example by improving training for mediators and continuing to support the Mediation Voucher Scheme, under which it provides £500 towards the costs of mediation, in eligible cases.

And whilst mediation may not be made compulsory, judges are being given more powers to encourage parties to mediate. The Law Society Gazette has reported that new court rules to be introduced in April will allow judges who believe a party has not taken mediation seriously enough to pause the proceedings and compel them to attend a mediation assessment meeting.

Returning to the consultation response, the Government has made two further significant announcements.

Firstly, it has said that it will pilot offering early legal advice to parents in disputes over arrangements for their children. The Government plans to launch the pilot this summer, in specific regions in England and Wales.

The Government plans to use the pilot to evaluate the impact of government-funded early legal advice, and assess the potential benefits, both in facilitating the earlier resolution of disputes and expediting court-based resolution where required.

The second announcement is the expansion of the ‘Pathfinder’ courts pilot. Pathfinder courts use a more investigative and less adversarial approach to dealing with disputes between parents over child arrangements, strengthening the voice of the child in proceedings, and increasing support to parties who need it.

Pathfinder courts are currently being piloted in Dorset and North Wales. The Government has announced that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, rolled out to all courts in England and Wales.

You can read the full consultation response here.

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On the 20^th of November the Ministry of Justice, HM Courts & Tribunals Service, and the Lord Chancellor Alex Chalk KC published a news story telling of their “Vision for the future of civil and family courts and tribunals”.

Unfortunately, the story gave little information as to what exactly this “vision” was, or how it would be achieved.

The story did explain that the government intended to “make it easier for people experiencing legal problems to access high quality information and support at the right time and in the right way”, and “to enable people to resolve their problems earlier and at less cost, for example through mediation or online dispute resolution … safe in the knowledge that if this is not successful, it will be straightforward to take the next step of seeking judicial determination through the courts or tribunals”.

All of this sounds very significant, but what will it mean in practice?

Thankfully, we have since been provided with a little more information.

A speech by the Lord Chancellor given on the day of the news story has since been published by the Ministry of Justice. In it we are given just a few more detail of what the ‘Vision’ actually means.

The Vision, it seems, is really to do with the early stages of dispute resolution: making sure that anyone needing the help of the law has access to proper advice, including regarding their options to resolve the dispute, such as mediation, thereby possibly avoiding what the Lord Chancellor described as “the acrimony and heartache that all too often accompanies contested litigation.”

And where mediation isn’t successful the new system will make it straightforward to take the next step of taking a case through the courts “by encouraging and building online and offline connections between different parts of the system”.

This new digital justice system will be underpinned and governed by an Online Procedure Rules Committee, which will provide governance and develop data standards for the system (obviously the new system will have to ensure that user’s data is kept safe).

The Lord Chancellor gave no indication as to when this new system will become a reality.

The Lord Chancellor is of course quite correct that it is essential that anyone with a family dispute should seek expert legal advice at an early stage. Whether this new system will succeed in providing bespoke advice for all as a real alternative to consulting an expert lawyer, we will have to wait and see.

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The government has announced its long-expected plan to make mediation compulsory in all suitable family court cases.

Launching a consultation on the plan the Ministry of Justice said that the proposals “will see mediation become mandatory in all suitable low-level family court cases excluding those which include allegations or a history of domestic violence.”

The idea behind the plan is twofold: to protect couples and children from the “damaging impact of bitter courtroom battles”, and to ease pressures on the family courts, ensuring that the justice system can “focus on the families it most needs to protect.”

Announcing the plans Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab MP said:

“When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.

“Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible.”

The plans will include both children disputes and disputes over financial arrangements on divorce.

And if couples do not make a reasonable attempt to mediate and the case goes to court the court could impose financial penalties.

The proposals have not met with universal approval.

The Law Society, the professional body for solicitors in England and Wales, has said that early legal advice is the best solution for separating couples, not mediation. It therefore urges the government to provide funding for such advice, for those who cannot afford a lawyer.

And Resolution, the association of family lawyers, has pointed out that mediation is not right for everyone. Resolution’s Chair, Juliet Harvey, said that mediation “works best when it is done voluntarily – forcing parents to choose a route that may not be suitable for them is not the answer.”

Lastly, the domestic abuse charity Women’s Aid, warned of the dangers of pushing women who have experienced abuse down the mediation route, and said that they “urgently need clarity on how the Ministry of Justice will ensure that all domestic abuse survivors will be kept safe”.

The consultation seeks views on the plan, particularly from organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have lived experience of the family courts or mediation.

The consultation closes on the 15^th of June, and can be found here.

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The new Lord Chancellor and Justice Secretary Dominic Raab has told the House of Commons Justice Committee that he wants more family cases to be kept out of court.

In a committee meeting on the 30^th of November Mr Raab was asked what his plan was to deal with the increasing number of private family law cases (that is, cases not involving social services) going through the courts.

Mr Raab said that broadly between 50% and 60% of these cases involve safeguarding (i.e. issues relating to the safety or welfare of the children concerned) or domestic abuse, and therefore need to be heard before a judge because of the issues at stake.

However, he said that the vast majority of the remainder of cases should not really go to court. He commented: “It should not be so easy just to say, “We’ll go to court.””

He went on to say that we ought to be much better at using alternative out-of-court methods of resolving family disputes, such as mediation and arbitration, and that we need to reconcile the incentives for using such methods and going to court. He said that he would “be in the market for something quite drastic and bold in that area.”

He also disclosed that he has “started to talk to the senior judiciary about this and work up a well thought-through approach.”

Mr Raab gave no indication quite what these incentives for resolving disputes out of court may be. They may, for example, involve financial assistance for out of court dispute resolution, such as the mediation voucher scheme that the government briefly ran earlier this year, offering a financial contribution of up to £500 towards the cost of mediation, in eligible cases.

It should be said, however, that there are already considerable incentives to resolve family disputes out of court. Contested court proceedings are stressful, time-consuming and expensive. Everyone involved in a family dispute should, if possible, make every reasonable effort to resolve the dispute out of court.

Family Law Café makes sure you choose the right options to get the outcome you want – very often that means avoiding the court route. Call us for a no obligation call and see what we can offer.

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The biggest divorce news of the week is of course that Kim Kardashian has reportedly filed for divorce from Kanye West. This latest celebrity divorce has already filled huge numbers of column-inches in newspapers and magazines across the world.

Our fascination for celebrity divorce seems to know no bounds. But can we actually learn anything useful from them? Anything that may be of relevance to ‘ordinary’ people going through marriage breakdown?

Well, sometimes we can, especially when (to the obvious delight of newspaper editors) the divorce gets ‘nasty’. Hopefully, Ms Kardashian and Mr West’s divorce, if it goes ahead, will not fall into this bracket, but sadly many celebrity divorces do, just as do many divorces involving ‘ordinary’ people.

Watching the awful spectacle of a nasty celebrity divorce play out in front of the world’s media must surely act as a warning to all: don’t let this happen to me.

And you don’t have to let it happen. You are in control. There are many things that you can do to avoid an unpleasant divorce. We have given much of this advice here previously, but it merits regular repetition.

Put the animosity of the breakup behind you – Obviously, many marriage breakdowns involve considerable animosity, and a simple mistake that parties make is to carry that animosity over to the divorce proceedings.

This can take many forms, from making irrelevant allegations against the other party, to seeking unrealistic outcomes. All of which will, of course, simply add to the stress, cost and time that the case will take to resolve.

Obviously, it is easy to say that animosity should be left behind, but hard to do it. However, all parties should try.

Concentrate on what is important – The important things in a divorce case are firstly sorting out arrangements for any dependent children and secondly sorting out the financial settlement.

But all too often parties will get side-tracked by other matters, or by matters that they think are relevant to children or finances, but actually are not. And this is where our next point comes in:

Follow advice – Take the best legal advice you can, and follow it. Your lawyer will tell you what is important or relevant, and what is not, and will ensure that you concentrate on the issues that really matter.

We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Consider mediation – Lastly, remember that court proceedings are not the only way to resolve a family dispute. Try to resolve the matter by agreement, and if that is not possible, consider using mediation as a way of resolving matters.

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A judgment handed down last Friday contains an important lesson for all parents involved in disputes over arrangements for their children.

Such disputes can throw up many issues. Some of those issues will of course be of great importance, requiring the intervention of the court. But many of the issues are actually comparatively trivial, although it may not seem that way to the parents.

In the judgment the judge warned parents against clogging up the courts with unnecessary children applications.

He gave examples of the sort of applications he was referring to (all of which arose before him in the previous month):

“i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction? iii) How should contact be arranged to take place on a Sunday afternoon?”

Other judges, he said, have given him many other, similar examples.

He concluded:

“…the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

It is a message that should be heeded by all parents involved in disputes over arrangements for their children: before you rush off to court, stop and think whether you really need to. Can you resolve the matter without going to court, possibly via mediation?

And remember the warning: the courts are very busy – if you waste court time then you could be criticised by the judge, and even sanctioned, for example by being ordered to pay the other party’s costs.

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If you are contemplating making an application to the court in relation to a dispute over arrangements for children then we would strongly recommend that you first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorces are taking longer than at any time since December 2014, when the Ministry of Justice began publishing quarterly Family Court statistics.

The latest statistics, for the quarter April to June 2019, show that for those granted Decree Nisi in that period, the mean average time from the date of the divorce petition was 33 weeks, up 5 weeks from the same period in 2018, and the mean time from the petition to Decree Absolute was 58 weeks, up 3 weeks compared to the same period in 2018.

The statistics also show a decrease in the number of divorce petitions issued. There were 28,144 divorce petitions issued between April and June 2019, down 13% from the same quarter in 2018. Financial remedy applications also decreased by 5%, but private law children applications (primarily for child arrangements orders) increased by 3% compared to the equivalent quarter in 2018.

Private law children applications are also taking longer. In April to June 2019, it took on average 28 weeks for private law cases to reach a final order, up 3 weeks from the same period in 2018.

Elsewhere, other statistics published by the Ministry of Justice revealed that more family cases are being resolved by mediation. In the quarter April to June 2019 mediation starts increased by 22% and outcomes increased by 13%, compared to the same period last year.

You can find the Family Court statistics here.

If you would like advice about taking divorce proceedings, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Confused by the jargon? Family law, just like all other areas of law, is full of legal jargon, so here are some plain English definitions for some of the terms that you are likely to come across if you are involved in family court proceedings:

Arbitration – A process whereby the parties agree that their case will be decided by a trained arbitrator. For further details, see this post.

Ancillary Relief – An older term for Financial Remedies – see below.

Cafcass – The ‘Children and Family Court Advisory and Support Service’ – look after the interests of children involved in family court proceedings.

Child Arrangements Order – An order setting out arrangements relating to with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person. For further details, see this post.

Clean Break – A financial settlement that dismisses all financial claims (in particular for maintenance) by either spouse against the other, thus achieving a ‘clean break’ between the parties.

Consent Order – A court order made with the agreement of both parties. Usually refers to an order setting out an agreed financial settlement following divorce. Note that the order must still be approved by the court, which is not obliged to approve it merely because the parties agree.

Co-Respondent – The person named by the Petitioner as having committed adultery with the Respondent. The Co-Respondent is a party to the divorce proceedings.

Cross Petition – A document filed by a Respondent to a divorce who wishes to defend the divorce and petition themselves, alleging that the breakdown of the marriage was due to a different reason to that alleged by the Petitioner.

Decree Absolute – The order finalising the divorce.

Decree Nisi – The order stating that the Petitioner (or the Respondent, in the case of a divorce proceeding on a cross petition) is entitled to the divorce.

Desertion – Separation without consent or good reason, and where the deserting spouse has no intention of returning. Desertion is actually very rare.

Directions – Orders of the court, usually setting out how the case will proceed.

Financial Dispute Resolution Appointment – A hearing within an financial remedies application, at which the parties should use their best endeavours to settle the matter by agreement, with the help of the judge.

Financial Remedies – The financial settlement in connection with divorce proceedings.

Injunction – An order requiring a party to do, or to refrain from doing, certain acts. In family law, most commonly refers to orders restraining domestic violence or abuse.

Irretrievable Breakdown (of marriage) – The ground for divorce. Must be shown by proving adultery, unreasonable behaviour (see below), two years’ desertion (see above), two years’ separation with the other party’s consent, or five years’ separation. For further details, see this post.

MIAM – A ‘Mediation Information and Assessment Meeting’. A meeting at which it is assessed whether the case is suitable for mediation (see below). In most cases, it is necessary to attend a MIAM before making an application to the court.

Mediation – A process whereby a trained mediator will help couples agree arrangements for children and/or a financial settlement.

Non-Resident Parent (‘NRP’) – The parent with whom the child or children is/are not residing. A term usually used in connection with child support.

Parental Responsibility – For an explanation of what parental responsibility means, see this post, and for details of how it is acquired, see this post.

Parent With Care (‘PWC’) – The parent with whom the child or children is/are living. A term usually used in connection with child support.

Periodical payments – Another term for maintenance.

Pension Sharing Order – An order transferring all or part of one party’s pension to the other party. For further information, see this post.

Pension Attachment Order – An order stating that one party will receive part of the other party’s pension when the other party receives it. Again, for further information, see this post.

Petitioner – The party who issues the divorce proceedings.

Property Adjustment Order – An order adjusting the ownership of matrimonial property, for example increasing a party’s share in the matrimonial home from 50% to 75%.

Respondent – The party who did not issue the proceedings. Note that the Respondent to an application for financial remedies could also be the Petitioner in the divorce proceedings.

Unreasonable Behaviour – Behaviour by one party such that the other party cannot reasonably be expected to live with them. This is one of the five ways of proving that the marriage has irretrievably broken down, for the purpose of divorce proceedings. For further details, see this post.

Without Prejudice – Words used in an offer of settlement to ensure that the offer cannot be shown to the court if it is not accepted. If the offer is accepted the protection of ‘without prejudice’ is gone.

Of course, if you are in any doubt as to what a word or phrase means, then you should seek legal advice.

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The marriage and divorce of Prince Charles and Princess Diana have been back in the news recently, with the broadcast of a revealing documentary by Channel 4. There may not be a lot that we can learn from their experiences directly, but there is certainly at least one lesson: if you can, make sure that your divorce is amicable, or at least as amicable as possible. This will reduce the cost of the divorce, along with the stress for all involved, including any children.

There is no panacea that will guarantee an amicable divorce, but the following points may help:

• Blame-free divorce: If possible, the divorce proceedings should be issued without attributing blame for the marriage breakdown on either party. If you do have to attribute blame (because you have not yet been separated for two years), then try to agree allegations with the other party, before issuing divorce proceedings.

• A constructive, non-confrontational approach: In your dealings with the other party, you should try to adopt a constructive, non-confrontational approach. This will reduce conflict, and increase the chances of matters being resolved by agreement, without the need for contested court proceedings.

• Consider mediation: Rather than go through contested court proceedings, consider trying to resolve matters through mediation. A mediator will seek to reduce conflict and help the parties to reach agreement on all issues surrounding divorce.

• Put the children first: If you have dependent children, then you must concentrate on what is best for them, not what is best for you. Remember, you will still have to deal with the other party after the divorce, at least until the children grow up. The children will benefit enormously if their parents remain on good terms.

• Keep it private: Don’t copy Diana – washing your dirty linen in public can be a sure way to antagonise the other party. And it’s not just a question of keeping it out of the media. Telling friends and family that the breakdown of the marriage was all the fault of the other party is not a good idea.

As we said, there is no guarantee of an amicable divorce, and it obviously requires the cooperation of both parties. However, taking the above steps will greatly enhance the chances of a quicker, cheaper, and less stressful divorce.

Family Law Cafe can help you to divorce amicably, by offering a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this complex and stressful area.

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Most family disputes on divorce or relationship breakdown, such as disputes relating to finances or arrangements for children, are resolved out of court. In fact, contested court proceedings should be used only as a last resort, if you are unable to resolve the dispute by agreement.

Most agreements are reached either between the parties direct, or more commonly in negotiations between their lawyers.

If it is not possible to agree matters direct or between lawyers then there are three main other possibilities to consider before issuing court proceedings (or even after proceedings have begun). These ways of resolving disputes are often referred to as ‘Alternative Dispute Resolution’. They are:

⋅ Mediation – Whereby an independent trained mediator will help the parties try to reach an agreement. Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end. Note that any agreement reached in mediation is not binding – the parties are entitled to take legal advice upon the terms of the agreement before it is finalised, for example by a court order. Note also that mediation is completely voluntary, and not all cases are suitable, for example, most cases where there has been domestic violence. There is a fee for mediation, although legal aid is available, subject to eligibility. Since April 2014 it has been compulsory to attend a Mediation Information and Assessment Meeting (‘MIAM’), at which it is assessed whether the case is suitable for mediation, before taking a family dispute to court.

⋅ Collaborative Law – Collaborative law requires each party to instruct a specialist collaborative family lawyer, i.e. a lawyer who has undergone special training to do collaborative work. Once this has been done, the parties and the lawyers sign an agreement to work together as a team to resolve issues without going to court. If either party should then start court proceedings, the collaborative process will end and the collaborative lawyers will cease to act for either party. Once the agreement has been signed, the parties and their lawyers will then attend four-way ‘face to face’ meetings, at which they will endeavour to reach a settlement. If a settlement can be reached, the lawyers will draw up an agreed document that is then submitted to the court, for approval.

⋅ Arbitration – Whereby the parties agree that their case will be decided by a trained arbitrator (the parties can also have their own legal advisers). The decision of the arbitrator will be legally binding, and may be made into a court order. The arbitrator will charge a fee, which will normally be shared between the parties. Advantages to arbitration over court proceedings include that the process is usually much quicker, that it is usually cheaper and that it is confidential.

If you would like any further information about Alternative Dispute Resolution Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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