Changes to the Family Procedure Rules: What separating couples need to know before applying to court - Family Law Partners

Changes to the Family Procedure Rules: What separating couples need to know before applying to court

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The Family Procedure Rules, the rules that govern family court proceedings, have recently been changed to ensure that court proceedings are only used in circumstances where no other option would be appropriate. In this blog, family law specialist Gemma Hope explains what this means for separating couples.

If you are separating from your partner there maybe many issues that arise such as financial matters that need to be resolved and, if you have children, the parenting arrangements for your children will need to be worked out. You may think you need to go to court to sort things out, particularly if the issues are complex and/or there is a lot of conflict or difficulties between you and the partner you are separating from. However, is court really your only option? Are you aware of the other options that are available to resolve matters and the consequences of not considering the other options?

The family court system is under immense pressure, there are significant backlogs and delays. This can cause significant harm as well as uncertainty, increased costs and additional stress for the families involved. It can also contribute to more animosity between separating couples and make views more entrenched which can make resolving matters more difficult.

If you apply to court it can be many months before you get a first hearing. Even once you get a court hearing there is no guarantee it will go ahead, we are seeing more and more cases cancelled at the last minute due to a lack of judicial availability. The reality is it can take many months, and in some cases years, for matters to be resolved through court proceedings.

In the case of Re B (a child) (Unnecessary Private Law Applications) [2020] EWFC B44, his Honour Judge Wildblood QC said: ‘Do not bring your private law litigation to the family court here unless it is definitely necessary for you to do so,’ he said ‘You should settle your differences away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.’

The President of the Family Law Division, Sir Andrew McFarlane, has also stressed that cases of straightforward relationship ‘dysfunction’, not involving abuse or a need for protection, should not need to go before a magistrate or judge for resolution. At a speech in October 2022, the President stated that taking proceedings to the Family Court should be the option of last resort, rather than, as it is seen by many, the first port of call.

The first question to ask yourself is: Do you really need to be taking your case to court in the first place? The answer may well be yes, there are some cases where other options will not be suitable or appropriate. But there may be more suitable options available for you depending on the circumstances of your case.

To be clear, looking at alternatives to court is not just about alleviating the pressure on the courts. It’s about reducing the level of animosity that can be caused by separation or divorce. It’s about saving families time and costs as well as finding outcomes for separated families that are long-lasting. It’s about finding the right tool for the job. The court can be a blunt instrument.

If you are considering court proceedings you should be aware that the Family Procedure Rules, the rules that govern family court proceedings, have recently been changed to give more teeth to existing provisions with the aim being to ensure that court proceedings are only used in circumstances where no other option would be appropriate.

What are the recent changes to the Family Procedure Rules that you need to be aware of?

In summary some of the key changes to be aware of:

  • There are now fewer reasons not to attend a mediation information assessment meeting (MIAM) – this is the meeting that, unless an exemption applies, you need to attend with a mediator before you can apply to court.
  • There will be more court scrutiny of MIAM attendance or MIAM exemptions.
  • There is a clearer definition of non-court dispute resolution (NCDR). It includes services such as mediation, arbitration, early neutral evaluation and collaborative law.
  • If you make an application to court you will need to provide proof to the court of your attempts to resolve matters using NCDR and/or why your case is not suitable for NCDR.
  • There will be constant court scrutiny throughout court proceedings as to whether a case is suitable for NCDR.
  • In financial cases, if the court considers that a party has not made a reasonable attempt at NCDR despite the court considering it appropriate, this can be taken into account as conduct when deciding whether to order one party to pay all or part of the other party’s legal costs.

The above is just a brief summary – full details of the rules can be found online at:

Why change the Family Procedure Rules?

The courts have under the previous rules had a power and a duty to encourage and facilitate the use of NCDR where appropriate. However, this power and duty has for one reason or another often been underused.

The changes to the rules are to give the existing provisions more teeth.

It goes without saying though that of course in some cases court will be the only suitable option and the court system needs to be there to deal with those cases, however in the vast majority of cases there are likely to be much better ways of resolving matters than through the court. Furthermore, the court will be in a much better position to deal with the cases that do need judicial intervention if it is not clogged up dealing with cases that could otherwise be resolved using one of the various other options available.

Non-court options can be a quicker, less adversarial, and more cost effective. This can result in better outcomes for separating couples and for any children involved. The adversarial court system can often reinforce rather than resolve conflict, and long drawn out proceedings are particularly damaging for children with long lasting detrimental effects on their wellbeing.

Essentially the rule changes have been made to make everyone more mindful about what is the best way to sort out the issues that need to be resolved in each case instead of just automatically applying to court.

How are these changes going to impact you? What are the consequences of not considering non-court dispute resolution options?

If you apply to court having not attended a MIAM, the court will need to be satisfied that an exemption has been validly claimed. If the court are not satisfied of this, or if the exemption is no longer applicable, the court may direct you to attend a MIAM before they will consider taking your court application any further.

It will not just be at the initial application stage where you will need to satisfy the court that no other option other than court is appropriate. The court will now as a matter of routine be keeping cases under consistent review at every stage to check whether the parties need to be before the court rather than just taking the view that because ‘they are here now’ they will deal with the case.

The court has the power to raise the issue of NCDR when the timetabling of proceedings allows a sufficient gap, and should encourage NCDR where appropriate. It is anticipated that judges are likely to take their role of scrutinising each party’s view of NCDR much more thoroughly than before.

The previous rules allowed for a case to be adjourned for NCDR where ‘the parties agree’. This has been changed, the agreement of the parties is no longer required, the new rules provide that where ‘the timetabling of proceedings allows sufficient time for these steps to be taken’ the court should ‘encourage parties’ to ‘undertake non-court dispute resolution’.

Judges in family courts are now likely to be more confident about robustly encouraging parties to attend NCDR following the change in the rules and also as a result of a decision in a civil law case (Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416) which determined that it is permissible in some circumstances for the court to demand that the parties attempt to resolve their dispute prior to seeking a judicial determination. In this case it was noted that ‘…even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method… is a matter for the court’s discretion, to which many factors will be relevant’.

The rules state that the court must consider, at every stage in proceedings, whether NCDR is appropriate. It requires the court to ask about non-court dispute resolution at every court hearing.

Prior to each court hearing, the court can order you to complete and provide a form (Form FM5) to set out what attempts you have made to resolve matters using NCDR and your views on NCDR. The form will be considered in line with the court’s duty to consider, at every stage of proceedings, whether NCDR might be appropriate. This form will be ‘open’ as opposed to ‘without prejudice’, meaning that the court will be aware at all stages of the case of the parties’ viewpoint regarding NCDR.

If there will be time for parties to attend NCDR between hearings or on an adjournment, any failure of a party to then attend NCDR may be regarded as conduct to be taken into account when considering whether to make an order for costs in financial proceedings.

In financial remedy proceedings if you fail, without good reason to attend a MIAM or attend NCDR, you could have a cost order made against you to pay the other party’s costs. This adds to the existing provisions whereby a failure to openly negotiate can also be a factor that can be taken into account by the court when deciding whether any costs orders can be made.

Judges have for some time now being expressing its judicial displeasure of parties who fail to attempt to resolve matters using NCDR. Costs sanctions have already been imposed in some circumstances where parties have refused to engage in non-court dispute resolution.

Ultimately, if you unnecessarily bring your case before the court when the issues can more appropriately be dealt with by NCDR, sanctions and penalties are now likely.

If you are seeking legal advice about applying to court and/or are legally represented in court proceedings, a specialist family law lawyer (such as the lawyers we have here at Family Law Partners) will be aware of the changes to the court rules. If they are advising you to apply to court and/or representing you within court proceedings they will make sure that they have and continue at every stage to clearly explain the non-court options to resolve matters and why court is being opted for over the other options that are available. That said, there are still a cohort of practicing family lawyers who have not made the culture shift towards helping to resolve matters without the need for court proceedings and operate on the old fashioned tradition of going to court as the starting point for all cases regardless of the circumstances. We cannot exercise enough caution for anyone who engages with a lawyer of this mindset, and encourage anyone looking for family law representation to start and begin their search with only those firms who are members of Resolution. It is hoped that the changes to the rules however will ensure all family law lawyers now deal with matters in a more constructive way and when appropriate without the need for court proceedings.

If you think you can apply to court without having carefully considered and/or attempted to resolve matters using NCDR, think again. In a recent case X and Y (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) the judge stated that the parties failure to engage in any form of NCDR was ‘utterly unfathomable’ and made the following clear:

  • That the adversarial court process is not always suited to the resolution of family disputes. These are often best resolved by discussion and agreement outside of the court arena, as long as that process can be managed safely and appropriately.
  • The court’s expectation is that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate. Furthermore, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable.
  • The rule changes will promote the court’s ability to encourage parties in financial remedy and children proceedings to use natural gaps in the proceedings’ timetable for the purpose of non-court dispute resolution or to adjourn the proceedings, if necessary, to encourage the parties to try non-court dispute resolution.
  • It may be thought that the decision in Churchill v Merthyr Tydfil is of limited relevance to family proceedings. To make that assumption is unwise.
  • Though the rule changes do not go as far as compelling parties to proceedings to engage in non-court dispute resolution, the agreement of the parties to an adjournment for that purpose will no longer be required. Instead, the family court may – where the timetabling of the proceedings allows sufficient time for these steps to be taken – “encourage” the parties to obtain information and advice about and consider using non-court dispute resolution and undertake non-court dispute resolution.
  • The court may use its powers to adjourn proceedings to encourage the use of non-court dispute resolution. In financial remedy cases, the power to encourage even unwilling parties will be reinforced as the failure, without good reason, to engage in non-court dispute resolution will be a reason to consider departing from the general starting point that there should be no order as to costs.

What choices do you have? What non-court options are available?

NCDR is defined as ‘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’.

Below is a summary list of NCDR available. It’s important to be aware though that there is no hierarchy in relation to the options available and the options are not mutually exclusive to each other or indeed the court. The best results are often reached when, rather than working in a silo, different skills and expertise are drawn on depending on what is needed to resolve matters.

There are a variety of professionals that work with separating couples such as family consultants, mediators, financial experts and lawyers. With all the options a multi-disciplinary approach is best, making sure you have the right person for the right job.

You may be able to sort out matters between yourselves without assistance from any professionals or court orders. If you do though it is best to then get legal advice on the terms of the agreement reached and what steps, if any, you need to take to make the agreement legally binding.

Mediation: Family mediation is a voluntary process where an independent, professionally trained mediator helps separating couples find solutions to issues that arise as a result of divorce or separation.

Child-inclusive mediation: Child-inclusive mediation is intended to give children a voice at a time when their parents are separating. Where both parents and the child agree, a child-inclusive mediator may meet the child separately to the parents to ascertain the child’s wishes and feelings. The mediator will discuss with the child what, if anything, is fed back to the parents.

Hybrid mediation: in Hybrid mediation often the separating couple will each have their own lawyer present for all or part of the mediation. The hybrid mediator will only share between the separating couple information which they have been authorised to disclose. This means that hybrid mediators can have separate, confidential meetings with each of the separating couple, and can exercise more creativity in helping them reach an agreement.

The collaborative process: In the collaborative law process the separating couple each instruct a specially trained collaborative lawyer. The lawyers then work together rather than against each other to support the separating couple to resolve issues.

Lawyer-led negotiation: In solicitor-led negotiation the separating couples will each have a lawyer that represents them and negotiates on their behalf, this could be through letters/emails, telephone calls or round-the-table meetings.

One couple/one lawyer: Most couples facing divorce or separation feel the need to ‘lawyer up’ resulting in opposing lawyers each fighting their client’s corner. The foundations of the relationship, such as trust and compassion, can be early casualties caught in the crossfire of an aggressive legal process. The one couple/one lawyer option, including our own model Agreeable, avoids this, as there is one lawyer who will look after both of the separated couple.

Early neutral evaluation: In early neutral evaluation (sometimes referred to as a Private Financial Dispute Resolution/private FDR)) an expert lawyer is chosen to look at the issues in the case and provide an early indication of the likely outcome if the issues were to come to court.

Arbitration: Arbitration simply put is private court proceedings where an arbitrator is appointed, rather than a judge provided by the state, to hear about the issues and then make a final decision that the separating couple agree to be legally bound by.

Arbitration/Mediation: In arbitration/mediation an arbitrator is appointed at the outset but the separating couple initially engage in mediation first, on the basis any issues that can’t be resolved at mediation will be left to the arbitrator to determine.

Parenting co-ordination: Where parents have a parenting agreement or court order in place they can work in partnership with their parenting coordinator to work out any challenges they have in implementing the agreement or order.  

Don’t know where to start – how about a MIAM?

Despite the name, a MIAM includes much more than an assessment of the suitability of mediation.

A MIAM usually takes between 45 minutes to 1 hour. There are mandatory standards for MIAMs for all mediators regulated by the Family Mediation Council.

A MIAM will:

  • Allow you to talk to an independent professional about your circumstances and issues arising from separation.
  • Provide you with information about the dispute resolution processes available to enable you to make an informed choice about how to resolve the issues in your case.
  • Assess the safety and suitability of mediation.
  • Signpost you to other services and resources that may assist you depending on your circumstances.
  • Where relevant provide you with information about the impact of separation and parental conflict on children, the importance of a child-focused separation and parenting post-separation including co-operative parenting, child-inclusive mediation, how financial matters are dealt with and the necessity of providing full and frank financial disclosure.
  • Allow you to discuss and, where possible, identify your next steps including the value of seeking legal advice.

Seek emotional support

I have dealt with many cases where at first glance it may appear that court would be the only suitable option (and sometimes indeed it is). However, more often than not when time has been spent working with a family consultant to deal with the emotional issues and communication difficulties which are usual when a relationship has broken down, it has been possible for separating couples to successfully resolve issues and find solutions together without the need for court proceedings.

The support of a coach, counsellor, therapist or family consultant can often enable separating couples to resolve matters using non-court options.

How can we help?

Family Law Partners has a range of specialist experts experienced in family consultancy, financial coaching, mediation, family law, collaborative law, early neutral evaluation, arbitration and court proceedings. If you would like to find out more about processes available and what options would be suitable for you please contact us.

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