Good Divorce Week
This week (28 November- 2 December) is Good Divorce Week!
What is good divorce week?
Every year during Good Divorce Week Resolution for Family Law, a community of more than 6,500 family justice professionals launches a campaign on a particular family law matter or issue with a focus on limiting conflict and helping families to resolve matters as amicably as possible and in the best interests of any children involved.
This year for Good Divorce Week 2022, the campaign has focused on highlighting the crisis in the family law courts. Family law professionals and those that have unfortunately experienced the family court process know only too well how overstretched the system is. The significant backlog continues to grow and this is having a detrimental impact on families going through divorce, financial remedy and children proceedings.
This week, the focus has been highlighting these issues as well as raising awareness of the different ways that disputes can be resolved outside of court.
Overburdened and understaffed family courts have resulted in long delays both in respect of administrative tasks such as processing divorce petitions as well as listings. Despite the Family Procedure Rules stating that the court will fix the FDA (First Directions Appointment) within 12 weeks and no later than 16 weeks after the filing of a financial application, some families are still waiting as long as 4 and a half months for a first hearing. In some instances it is then taking up to 8 months for the FDR (First Dispute Resolution) hearing to be listed thereafter and as long as a year for a final hearing.
Concerningly, listings in respect of children proceedings are as bad, if not worse in some cases, with families waiting up to 7 months for a FHDRA (First Hearing Dispute Resolution Appointment) after filing the C100 application. More and more frequently hearings are being cancelled at the last minute due to lack of judicial availability. This means it can take years for matters to be resolved in the family courts.
The delays can be extremely harmful for families, particularly in cases where little or no interim contact is in place between the child and one of the parents, or in circumstances where one party is left with inadequate financial provision. The situation also leads to uncertainty and increased costs, not to mention the impact on the emotional wellbeing of the entire family.
Given the delays and cost, both financially and emotionally, of court proceedings, it is important for families to know that they have a range of other options available to them and to understand that court is not the only course of action:
Negotiations between parties
It is perfectly possible and acceptable for parties to sort matters out between themselves and come to an agreement directly. It is best to seek independent legal advice on the terms of any agreement reached to ensure it is fair and reasonable for both parties and any agreement can then be drafted into a consent order to make it legally binding.
Mediation
Mediation is a voluntary and confidential process whereby an independent third-party mediator assists the parties in resolving matters and reaching an agreement. The mediator helps the parties to discuss the various issues between them and explore solutions with a view to finding a resolution that works for the whole family. The mediator cannot give legal advice but they can provide information to assist and very often have backgrounds in family law.
Where suitable, parties should consider attending mediation as a first step before issuing financial proceedings. In fact, there is a requirement for anyone considering issuing financial or children act proceedings to attend a Mediation Information Assessment Meeting (MIAM) to consider whether mediation is appropriate before issuing.
Mediation is also without prejudice to any future financial negotiations or proceedings.
Solicitor led negotiation
Where parties are unable to resolve their disputes directly or in mediation, solicitors can attempt to assist through solicitor correspondence, including discussions on the telephone between solicitors or a round table meeting. These negotiations, with the benefit of legal advice and support, can assist parties in narrowing the issues between them and can help focus people’s minds on what is a fair and practical outcome. Solicitor-led negotiations can happen at any time and a settlement can still be reached through solicitors after court proceedings have been issued.
Arbitration
If the parties cannot reach an agreement voluntarily, through mediation or solicitor-led negotiation, they can still obtain a final decision without the need to attend court. Arbitration is often described as the parties’ own ‘private court’ and allows them to choose and agree on the Judge (the Arbitrator) as well as the date, time and location of the hearing. In agreeing to arbitrate, the parties agree that the arbitrator’s decision will be binding on them. Arbitration is often far quicker than the court process and allows the parties to avoid the inevitable delays of issuing court proceedings.
Private FDR
A Private FDR mirrors the court FDR by allowing a third-party Judge (usually an experienced solicitor or barrister) to provide an indication as to what they think would be the appropriate outcome if the matter was to be determined by a Judge at a Final Hearing within Court proceedings. The ‘Judge’ reviews the financial disclosure provided so far and the parties’ respective positions. Once they have heard submissions from either party or their legal counsel, the indication is provided.
After hearing the indication (on the same day, immediately afterwards), much like with the court FDR, the parties engage in solicitor or barrister led negotiations with the aim of reaching a final agreement. The idea of his process is to focus the parties’ minds as to what the likely outcome would be if they were to proceed to a costly final hearing.
The court actively encourages parties to attempt alternative dispute resolution and proceedings can be paused at any stage to allow parties to try to resolve matters via any of the above methods, with a view to reaching settlement outside of court.
Jones Nickolds are proud members of Resolution and we are committed to resolving family law matters in a way that prioritises the needs of the entire family, particularly in the best interests of any children. We are therefore committed to supporting Resolution’s Good Divorce Week 2022 and campaigning for a change in the family court system, looking at ways that the process can be better approached in the interests of the whole family.