There can be many factors which can ultimately lead to a couple deciding to divorce, however the most common concern, particularly when there are children of the family is how the couple will be able to financially support themselves and the children.
Changes to Divorce Law
On 6 April 2022 the Divorce, Dissolution and Separation Act (2020) came into force and introduced the concept of no-fault divorce. This makes it somewhat easier for parties to obtain a divorce by removing the requirement to assign fault for the breakdown of the marriage as well as removing the possibility of contesting the proceedings unless there were disputes over jurisdiction or the validity of a marriage. It also introduced an option to make a joint application for divorce and the online application process was simplified, meaning that many people now choose to file their own divorce application.
However, many do not appreciate that the divorce proceedings only legally end the marriage, and that there is a separate process to resolve the finances arising from that marriage, whether the financial arrangements are agreed and concluded with a consent order or are in dispute and an application for financial remedy (the process to obtain a court order to determine matrimonial finances) is necessary. Therefore, if you are making the difficult decision to divorce it is always recommended that you seek specialist legal advice from a family lawyer to ensure that you are aware of your options and ultimately obtaining an order which meets yours as well as your children’s needs, both now and in the future. The old adage “act in haste, repent at leisure” is particularly true of matrimonial finances.
Changes to pre-action protocol in Financial Remedy proceedings
The family courts have become overwhelmed with the volume of financial remedy applications before them, many of which do not need to be litigated in court and could be resolved much more quickly by using a form of non-court dispute resolution (NCDR) which can also be more cost effective.
On 29 April 2024, important changes were made to the Family Procedure Rules 2010 which govern the procedures used in family courts in England and Wales. These rules explain what steps the court expects parties of a case to take, whether represented or a litigant in person when they have a case before the family court.
Previously, before a party could make an application to the court for financial remedy, a Mediation Information Assessment Meeting (MIAM) (see our blog Mediation: How It Can Help With Your Separation – Ison Harrison Solicitors) had to be attended by the party making the application. However the requirement to participate in mediation was a choice, and one could simply attend a MIAM with no intention of trying to mediate to satisfy a tick box exercise to make a court application. Often the other party would ignore an invitation to mediate or refuse to participate without a good reason. There were also various exemptions which meant that a party would not have to satisfy the MIAM requirement before making an application to the court.
The following amendments have been made to the pre-action protocol which applies to all parties before an application is made to the court, and to all applications for financial remedy:
- The court will expect parties to have attended a MIAM (unless a valid exemption applies).
- Parties are expected to have considered and, unless there is a good reason for not doing so, engage in Non-Court Dispute Resolution (NCDR) (including but not limited to mediation, arbitration, neutral evaluation and the collaborative process).
- Parties are also required to exchange with each other full and frank financial disclosure of all material facts, documents and other information relevant to the issues which includes their assets, liabilities and income positions. This is usually done by way of the Form E.
- After the exchange of financial disclosure parties are also expected to clearly set out to one another their positions and attempt negotiations by making a reasonable proposal for settlement.
What the new pre-action protocol means for parties
- If parties have not attempted at least one form of NCDR before commencing court proceedings, the court may decline to issue an application or place proceedings on hold to encourage parties to attend a form of NCDR to try and resolve the issues.
- The list of MIAM exemptions has now been reduced and parties are required to attend a form of NCDR unless there is a good reason for not doing so (or unless they still meet one of the exemptions). If a party is not willing to attend NCDR they must give written reasons to the other party (and the court if already in proceedings) why they will not do so.
- The court may now make costs orders against parties who do not follow the protocol. When deciding whether to make a costs order, the court will take into account any pre-action offers to settle, a failure (unless exempt from doing so) to attend a MIAM, whether a party has provided appropriate financial disclosure, and a failure (without good reason) to attend NCDR.
Court proceedings should always be a last resort. The objective of these changes is to encourage parties to try and resolve their disputes by utilising and engaging in non-court dispute resolution to:
- enable the parties to understand each other’s position;
- assist the parties in deciding how to proceed;
- identify the issues in dispute;
- narrow the scope of the dispute;
- try to settle the issues without court proceedings;
- support efficient management of dispute resolution; and
- reduce the costs of resolving the dispute.
You should be aware that mediators are unable to provide parties with legal advice, therefore it is recommended that you retain your own independent solicitor to advise you in your best interests and in particular with regard to appropriate settlements during the mediation process.
If you and your partner are thinking about a divorce and separation or have already made that decision, contact our Family Law department at Ison Harrison, and we can discuss your options about mediation and other forms of NCDR, as well as your needs and how they may be met from the matrimonial assets. Divorce and separation need not be costly and acrimonious, and receiving the right advice at the outset will help you make decisions in your best interests.
