The recent changes to the Family Procedure Rules (FPR) promote Non-Court Dispute Resolution (NCDR) methods like mediation, arbitration, and collaborative law to resolve family disputes outside of court. In this blog we look at how the new rules will effect separating couples.

What are the changes to Family Procedure Rules?

This week marks the first week following the changes to the Family Procedure Rules (FPR) that came into force on 29 April 2024. The rule changes indicate a whole culture shift in family law to firmly encourage separating couples to keep family disputes out of court where possible. Resolving matters outside of court is known as Non-Court Dispute Resolution (NCDR) which means ‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law’.

Exemption from Non-Court Dispute Resolution

The changes to the rules build upon previous encouragement to separating couples to avoid court which previously focussed on mediation. Mediation is a form of NCDR whereby an independent, professionally trained mediator helps you work out arrangements for finances or children but does not provide legal advice. Since 2014, there has been a requirement to show that you have attended a Mediation Initial Assessment Meeting (MIAM). This is unless you can show you’ve a valid ‘exemption’ (a reason not to attend) before making an application to the court. Following the changes, there will be fewer exemptions and there will also be much more scrutiny on proof of any NCDR attempts or any exemptions claimed.

What if my separation goes to court?

If an application is made to court, there will be constant scrutiny of parties’ views and attempts at NCDR throughout the whole process. This will require you or your solicitor to fill in, file and serve a FM5 form, setting out any attempts or reasons for not attempting NCDR. This has to be done at least seven days before the first hearing. Judges can also direct that this is done prior to every subsequent hearing so that there is continued scrutiny. 

There are always natural gaps in court proceedings between hearings and Judges will now use this time to strongly encourage parties to use the time to attempt NCDR. Previously, the court could only adjourn matters to try NCDR when the parties agreed to do so. Now, following the changes, the court can now do this ‘when the court considers’ NCDR may be appropriate. Using NCDR will therefore be sensible if parties wish to resolve matters as soon as possible. If there’s continued refusal by a party to try NCDR this can be taken into account when considering their conduct. It may also be relevant when considering who pays the legal fees that have been incurred.

What happens if my partner unreasonably refuses Non-Court Dispute Resolution?

In family court proceedings, usually each person pays their own legal costs. FPR 28 covers the different considerations of the court and when it may be appropriate to think about ordering that one party pays the costs of the other. Following the changes made by the Family Procedure Rules, these considerations at FPR 28.3 mean that, in financial proceedings, the court must now consider any party’s failure to either attend a MIAM or attend NCDR.

What types of Non-Court Dispute Resolution are available?

One form of NCDR is collaborative law which provides a safe and open forum for separating couples. This lets them come together with their own independent collaborative lawyers to receive legal advice and explore different options. It’s done with a view to reaching a resolution on their financial matters and/or arrangements for their children.

Like other forms of NCDR, when arrangements are made between the separating couple it often preserves a healthy working relationship between them which is so important especially for the benefit of any children of the family. You can find out more about collaborative law here . 

At Switalskis, the rules changes are entirely welcome as it’s long been the aim of our family lawyers to try, where possible, to keep our clients away from the court system. This is often to protect them from added stress, delay, and legal fees if their case can be appropriately resolved by other means. It ensures that only the cases with no other option go to court as this continues to be, now more than ever, the ‘last resort’ for separating couples. 

Our expert family lawyers are here to help you. Get in touch with us on 0800 138 0458 if you’re going through a separation and would like to know more about what the changes may mean for you.