Publish date

14 December 2021

Divorce: what are the alternatives to court?

The court service is not at its best. After the closure of over 80 courts, before the pandemic, centralised telephone lines and court services, less staff and more applications, it isn’t working as well as it should. Throwing in a pandemic that meant telephone hearings and hearings by video link, that the court service wasn’t equipped for, it’s no surprise that the waiting times for applications to be issued and hearings to be listed have got longer.

None of our clients make applications to the court lightly. It is always a last resort, as well as it being expensive, it is often slow. Recently it has been more frustrating, slower and more costly for clients as court hearings get vacated with little notice, with clients having incurred the costs of preparation and still having to pay counsel’s fees. It’s out of our control as there is only one court service and clients end up suffering emotionally and financially.

For these reasons, we are more than ever, encouraging clients to consider other ways to resolve their differences that don’t involve the courts, other than for final approval of agreements.

We continue to encourage clients to consider mediation and the collaborative process, but this means of resolution doesn’t suit everyone. For some clients a little more intervention is needed to resolve matters.

Alternative Dispute Resolution (ADR) also encompasses private Financial Dispute Resolution (FDR) and Arbitration. Whilst there is an additional cost in the parties having to share the cost of a private FDR judge or an arbitrator, it is money well spent, unlike a court decision to vacate a hearing the day before. The parties are also in control of the timetable, when they are paying for a private FDR or an arbitration. It can therefore be a much quicker and cost effective process without the frustrations of the overused court service.

A private FDR involves a Judge being agreed and then giving an indication as to what they believe the outcome should be at a final hearing. It can be very helpful to hear that indication as you would in the court process and helps many parties to reach an agreement, because otherwise they run the risk of having to proceed with a court application.

Arbitration gives even more certainty, for those who cannot reach agreement and need someone independent to make a decision, based on the evidence and specific facts. The parties sign up to an agreement that they will be bound by the decision of the arbitrator. They chose the arbitrator, which you couldn’t do with a judge in court and the arbitrator has time to consider all the papers and make a decision which both parties are bound by. The timetable is led by the parties and the cost is in their control. Unlike a private FDR, the decision made by the arbitrator is binding and must be followed and arbitrators can make decisions about matters concerning children and finances.

With Dominic Raab raising his concerns about the number of court applications, which the court service are not equipped to deal with, due to lack of funding and resources, he is apparently planning to reduce court applications, although he hasn’t yet indicated how he intends to do so.

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