On Monday 29, 2024, changes to the Family Procedure Rules (FPR) will improve the approach to non-court dispute resolution (NCDR) in family law matters.

It is common knowledge, at present, that the Family Courts cannot adequately service the number of applications being issued. This frequently results in cases being pulled from the Court list at short notice and parties having to wait several months to receive a court hearing date. These amendments are therefore a welcomed changed as they encourage parties to seek alternative solutions, away from the court area, to resolve their family disputes.

What are the main changes?

The amended FPR widens the definition of “non-court dispute resolution” (NCDR) at FPR 2.3(1)(b). For example, NCDR now includes arbitration, evaluation by a neutral third party (such as a private financial dispute resolution – FDR), and collaborative law as well as mediation. This list is not exhaustive.

Now that the definition has been expanded; it will highlight to the parties the various different methods for resolving their dispute and may encourage them to try these alternatives, rather than issuing a court application.

The new legislation provides that the parties should actively engage in NCDR to try and resolve their dispute. It is therefore likely that if parties attend Court having not attempted alternative options such as mediation, then it is likely that a Judge will scrutinise why attempts at NCDR have not been made. The Judge may adjourn the matter to enable the parties to attempt some form of NCDR if the Judge feels it is appropriate.

In addition, if parties fail to attend NCDR, FRP 28.3(7) has been amended to state that failure to engage without good reason may lead to a departure from the usual “no order as to costs” principle. Parties are therefore at risk of costs orders being made against them, if they do not have a good reason as to why they have failed to engage in NCDR. It is hoped that this provision will encourage participation in alternative methods.

Other changes include the need for mediators during a mediation information assessment meeting (MIAM) to inform the parties about other forms of NCDR to ensure the parties are knowledgeable about the alternatives to issuing a court application.

What does this mean for future family law cases?

Parties are now also obligated to look at NCDR methods not only before issuing an application but also throughout the duration of their case. For example, FPR 3.3(1A) which comes into force on 29 April 2024, provides that in private law children proceedings and in contested financial remedy proceedings parties will be required to file and serve a standard form setting out their views on engaging with non-court dispute resolution (except in cases where domestic abuse is in issue). This amendment will hopefully mean regular evaluation of alternative methods to resolve issues.

It is clear that the amendments to the FPRs are intended to ensure that all court users (to include Applicant’s, Respondent’s, solicitors, barristers, Judges and Cafcass etc) have NCDR options front and centre when dealing with family disputes. In the case of X vs Y [2024] EWHC 538 (FAM), which concerned a matter where the parties had not attempted any form of NCDR, the Judge in that case described it as “utterly unfathomable”. It is therefore likely Judges will be using their judicial powers to heavily scrutinise why parties have not attempted alternative ways to resolve their matter.

To conclude, the new legislation serves to highlight NCDR and encourage parties to keep their matter out of the court area, wherever possible. Parties that fail to take part in NCDR (where it is appropriate to do so) can expect to be heavily criticised at Court and asked to justify their refusal to engage in NCDR by the Judge.

The changes provide an opportunity for solicitors to keep parties out of court (where appropriate) and will strengthen the need for resolution away from Court. It will be interesting to see how the Courts implement the new legislation over the next 6 -12 months. What may feel like a huge cultural shift now, will conceivably become the new norm in 12 months’ time.

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Stephanie deals with all aspects of relationship breakdown to include complex divorce cases, children matters and resolving high net worth financial cases which involve disputes regarding business interests, pensions and taxation issues.

Stephanie specialises in advising clients in respect of Financial claims on divorce. She is also highly experienced in dealing with complex Children Act cases and can represent high net worth individuals, business owners, entrepreneurs, land owners and those in the public eye.

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Published: 29th April 2024
Area: Family

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