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Family Procedure Rules Update Aims to Shift Divorce Resolution Away from Courtrooms

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On 29th April 2024, significant changes were made to the Family Procedure Rules (FPR), a set of rules and procedures that govern and standardise the work of family courts across England and Wales. The previous set of rules were implemented in 2010, and this update is well overdue and has been welcomed by family lawyers. 

The FPR change has implemented more extensive and official expectations for separating couples and legal professionals to explore a broader choice of alternative dispute resolution methods. As part of this, the definition of non-court dispute resolution (NCDR) has expanded to encompass more than solely mediation, which is unsuitable for some couples. Methods like private financial dispute resolution, collaborative divorce and arbitration are to be encouraged where appropriate.

The drive for change is not new in the divorce space and it is hoped that this update will continue to drive a cultural shift in the landscape. Focusing on alternative dispute resolution has been spurred on in recent years by the pressure on the family courts, which has been exacerbated by the Covid pandemic

The primary change that has been brought in is the greater expectation on couples, solicitors, and the family court to continually assess whether NCDR is a suitable option for the couple. 

Separating couples will have to consider the alternative options available to them or provide a valid reason for not engaging in NCDR, for example, where a case has known or alleged domestic abuse. Where there is a refusal to attempt to settle matters outside of court without a valid reason, the court will have additional powers to impose cost sanctions. 

If a case has made it to court, Judges will now have the power to adjourn proceedings to allow time for a couple to try NCDR, with or without the parties’ agreement. However, the court cannot force parties to do so; they can only facilitate time and space for this to happen. 

It is widely acknowledged that lengthy court battles and extensive litigation are expensive and time-consuming, as well as damaging to one’s mental health, family relationships, impacting any children in the short and long term. 

Over the past few years, we have started to see a shift away from the court room. At Stowe Family Law, the number of financial divorce settlements going to court has fallen by 11% since 2018, but there is still some way to go.

The introduction of no-fault divorce in April 2022 has helped to make divorce, in many cases, a less adversarial process, and paved the way for a more amicable end result. Family lawyers are now optimistic that the changes to the FPR will take that shift further and move more couples into options such as negotiation, mediation, and arbitration. 

However, it is important to note that there may well be cases where NCDR methods, such as mediation, are unsuitable. 

For cases involving alleged or known domestic abuse, it is vital that victim-survivors are not forced into processes which may be unsafe. Family mediation focuses on bringing the couple together to resolve their disputes, having an open and honest dialogue, and working with a trained mediator. This process would be potentially dangerous for victim-survivors of domestic abuse.

However, there are various styles of mediation, for example, hybrid mediation or shuttle mediation, which can be used, where appropriate, in a safe way. 

Non-court-based resolution methods are growing in popularity, and being adapted over time to ensure the maximum number of couples and families can benefit from them and avoid the stressful court process. The updated rules reflect this cultural change towards a healthier way of separating.

While family breakdown is rarely straightforward, actively encouraging couples to assess what method of dispute resolution is best for their unique situation will build upon the continuing shift away from the family court. How successful it will be in that challenge, time will tell.

Rachel Fisher is a partner at Stowe Family Law.

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