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Forthcoming changes to Family Law in 2024
5 April 2024 Separation & Divorce
A further shift to non-court dispute resolution
As family solicitors, we know all too well that the costs of litigating disputes through the Court, both emotionally and financially, can be vast and, on occasion, disproportionate.
The reality is that there are some cases where issuing Court proceedings is, and will remain, the best solution, particularly where there is extensive domestic abuse, or where you have a reluctant person who may currently be burying their head.
However, at Purcell Solicitors we have long been advocates of non-Court methods of resolving family disputes if possible, such as mediation, collaborative law, lawyer-led negotiation, private evaluations and arbitration to name a few. Indeed, Pauline was one of the first solicitor arbitrators, Pauline, Mandi and Lisa are trained collaborative lawyers, Lisa is a fully accredited mediator and all of our solicitors are members of Resolution striving to minimise acrimony for you in an often very difficult time.
Upcoming Family Law Changes
Sadly, Court has remained, for too many people, the first or indeed only option and it can be hard to understand why an alternative process (which may on the face of it occasionally appear to have more expense although often isn’t in reality given the time typically saved in achieving a resolution) should be considered when there are already proceedings before the Court.
Thankfully the tide appears to finally be turning as there is now to be a much greater emphasis, for those considering or indeed already within Court proceedings, on considering other processes to resolve their disputes.
Family Procedure Rules
From April 2024, the Family Procedure Rules are changing, marking a further shift towards the encouragement of the use of “non-court dispute resolution” the definition of which has been expanded to ensure a greater emphasis on consideration of all options.
Whilst specialist family lawyers are well versed in advising people as to these alternatives, the changes to the FPR mark a shift towards those who may not be so well versed and the Court’s own role with a stronger encouragement on the use of these processes to try and reduce the number of separating couples who find themselves going through the Court process, and with real risks and consequences to those who fail to consider alternatives and simply say “see you in court” without good reason.
What is non-Court dispute resolution?
This is a term coined to cover any means of resolving family disputes without going through the litigation Court process. The definition of non-court dispute resolution is expanded from 29th April so that it means:
“Methods of resolving a dispute other than through the Court process, including but not limited to mediation, arbitration, evaluation by a third party (such as a private financial dispute resolution process) and collaborative law.”
Didn’t we always have to do this?
Mediation Information and Assessment Meeting
Currently, anyone who is making an application to the Court is required to first attend something known as a Mediation Information and Assessment Meeting (“MIAM”). This is an individual meeting with a mediator to assess whether or not mediation could work in your situation and assess other alternatives if not.
The reality is that, to date, too often this is considered a “box ticking” step to enable an application to be issued. There are also currently a number of exemptions from the MIAM meaning that some people miss out on that crucial information that can be provided in that meeting. Although you are required to provide proof of MIAM attendance it is often the case that a busy Court does not actually look at the reasons why someone has not attended a MIAM, meaning that exemptions can be used when they really should not have been. With the changes to the law in force from April 2024, this is to change. The new rules will strengthen the focus on non-court dispute resolution by:
- Removing some of the existing exemptions for a MIAM (there will always remain some exemptions such as urgency and domestic abuse).
- MIAM providers (those who follow the FMC standards for MIAMs will no doubt have already been doing this) must now assess and discuss all forms of non-court dispute resolution and assess whether they may be appropriate and provide guidance on how to proceed with those if appropriate.
- In addition, if Court proceedings are needed, each person will be required to file a form with the Court seven days before each Hearing indicating whether they would be open to using non-court dispute resolution. This is to encourage and promote the use of other forms of resolving disputes as whilst it may not have been appropriate at the outset, it is something that should be kept under constant review. This will ensure the Court is aware of the parties’ position on non-court dispute resolution and bring a greater focus to this than has currently been the case.
- The Judges will also consider non-court dispute resolution at each stage and where previously the Court were able to adjourn cases to explore non-court dispute resolution if both parties were in agreement, from April 2024, the Court have the power to do this, absent the agreement of the parties if it would be suitable by enabling the Court to timetable the proceedings to ensure sufficient time for steps for non-court dispute resolution to be undertaken.
- Arguably the biggest shift to the encouragement to the parties to really consider non-court dispute resolution in proceedings to resolve financial disputes are new rules ensuring that a Judge can take into account one party’s refusal to attempt non-court dispute resolution when making decisions about costs in financial cases. The new rules explicitly state that failing to engage in non-court dispute resolution without good reason could lead to a departure from the general starting point that there should be no order as to costs. This means that if you don’t have a good reason not to move away from Court you could find yourself penalised in costs.
Why this change?
Whilst the sentiment behind these rules has been in place for some time and specialist family lawyers, such as Purcell, have long been championing non-court dispute resolution, it is hoped that these formal rule changes will provide greater encouragement for Judges, practitioners, and indeed the people having to use the system to keep the method in which they are resolving disputes at the forefront of their minds.
This should help keep matters away from Court where possible and enable longer-lasting and more effective solutions to be reached at an earlier stage. Greater use of non-court dispute resolution should lead to a reduction in conflict and an increase in parties finding common ground rather than having solutions imposed on them by the Judge in Court litigation.
With this greater emphasis on mediation and other forms of non-court dispute resolution, the Family Court hopefully will become more efficient, prioritising those cases where Court intervention must take place due to for example safeguarding issues and domestic abuse, and result in those cases being dealt with more quickly and more efficiently for the sake of all involved then is sadly currently the case.
No family is the same and the ability to create bespoke solutions by considering all the processes available can only be to the benefit of those that the law seeks to assist.
If you are looking for further information about the different forms of non-court dispute resolution, interested in considering mediation or simply feeling stuck as to where to turn in relation to resolving a dispute, please get in touch with us to discuss how we can assist you further.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
