The Family Procedure Rules were revised in April 2024, in part to encourage parties to consider non-court dispute resolution (NCDR). Divorce and Family partners Debbie Chism and Emma Hatley spoke to Spear’s as part of their roundup of the changes.

Debbie and Emma’s full commentary is set out below. Our team has also reviewed the new rules in the context of Mrs Justice Knowles’s recent judgment in X v Y.

How will the changes to the rules impact couples seeking a divorce?

Debbie: The divorce process itself remains unchanged, but more open and frank discussions about financial disputes and arrangements for children will now need to take place. This is because the amended Family Procedure Rules have widened the definition of ‘non-court dispute resolution’ (NCDR). This now includes arbitration, collaborative law, evaluation by a neutral third party as well as mediation. There is strong encouragement to try and resolve disputes rather than starting a court process. The new regime requires separating couples to explain to the court what steps they have taken to resolve their dispute before making a formal application.

How might this specifically impact (ultra)high net worth ((U)HNW) clients?

Debbie: Clearly, those with greater financial resources will be in a better position to choose between the wide range of dispute resolution options. By way of example, HNW couples may be more likely to opt for the privacy and speed of arbitration or private judging.

Part of the reasoning behind the change in rules is to alleviate pressure on the courts. Do you anticipate this will be one of the outcomes?

Debbie: Yes. One of the key changes is that mediation will be a requirement in many cases. The intention is to ensure couples engage properly in the mediation process unless there are compelling reasons not to. The hope is that this will reduce the burden on the already heavily congested court system as well as make separating couples better informed about all of the dispute resolution options available to them.

Although it is not compulsory to attend a mediation information and assessment meeting (MIAM) before beginning the court process, the changes will make it harder to avoid attending one.

Have you seen a shift away from non-court dispute resolution?

Debbie: No, in fact, our experience at Stewarts has been the opposite. Collaborative law solutions remain an option clients are keen to engage with, but arbitration is now proving to be an increasingly popular choice for our clients. The flexibility of the arbitration process enables couples to take control over the decision-making timetable and process. The privacy afforded by arbitration also makes it an attractive route. In some cases, couples may opt to have their entire dispute arbitrated. In others, while there may be a large measure of agreement between them, there may be one or two intractable areas of dispute that could be dealt with much more swiftly through arbitration than through court. It’s generally a far more civilised, efficient and satisfactory process than going to court.

What do you think is behind this trend?

Emma: There are many benefits to arbitration, but there’s no doubt that the shift is partly a consequence of our courts having become increasingly congested due to the cuts to the funding of the justice system. A complicated case which might now take between 18 months to two years to resolve within the court system can be expedited in arbitration and concluded in less than half that time. Why put yourself at the mercy of a court list when you could arbitrate instead, anywhere and at any time, subject to your chosen arbitrator’s availability? It’s an obvious choice in most cases.

Another key driver has been the acceleration towards openness and transparency in the Family Court. One upshot of this has been the increased propensity for judgments in financial proceedings to no longer be anonymised (except in relation to identifying any children). The Family Court is no longer a guaranteed private forum for resolving disputes between divorcing couples, and this is already influencing the decision of many of our clients as to how to proceed.

Most separating couples, particularly those with a high profile or significant financial resources, can do without the added anxiety of not knowing whether their case will end up attracting unwanted media attention. We have acted for an increasing number of clients over the past few years who have elected to ‘go private’ and attend arbitration instead, thereby ensuring that details of their dispute will remain confidential. We also regularly act for clients who have been able to reach an agreement with their partner at a voluntary private settlement hearing.

Are you broadly in favour of the change to the rules or against?

Emma: In favour, because these procedural changes are intended to produce a positive cultural shift in the approach taken towards resolving disputes on relationship breakdown and alleviate the pressures on an under-resourced and overburdened court system currently struggling to support those who truly need it. Importantly, the rules stop short of making processes such as mediation mandatory, which, in my view, is appropriate because mediation won’t be suitable in every case, such as those where there has been domestic abuse or material non-disclosure. The balance, therefore, seems to be right: strong judicial encouragement of NDCR to get parties thinking about alternatives to court and potential cost sanctions for those who demonstrably fail to engage with those alternatives.

Do you anticipate it will affect your day-to-day practice/client interactions? If so, how?

Emma: Yes and no. At Stewarts, we have always recognised the benefits of alternative forms of dispute resolution and our specialist team includes both mediators and collaborative lawyers. We can provide these services as well as advise on their use when addressing any of the issues that concern separating or divorcing couples.

The court process can be a very blunt and daunting environment in which to deal with a dispute and often serves only to increase tensions between the parties. With the added risk of press and media intrusion, it is no surprise that we have already seen many couples, particularly from high net worth families and those in the public eye, favouring NDCR instead. With the advent of these new rules, we fully expect that trend to continue.

Is there anything else you would like to add on the topic?

Emma: In our experience, NCDR is often really empowering for individuals. It allows personal priorities to be set and provides for a bespoke approach both in relation to how the issues are going to be solved and what the solution will look like. NDCR will usually provide the quickest route through a dispute for a separating family, and contingent on the specific facts of the matter, we would usually encourage our clients to start their discussions within an alternative dispute resolution process. Couples contemplating divorce should seek legal advice at an early stage and seek to gain a full picture of the options that are available to them and how those processes work to make a fully informed decision as to the forum which would be most suitable for them and their family.