Publish date

7 May 2024

The role of collaborative law in divorce

Rule changes steering towards Non-Court Dispute Resolution (NCDR)

The Family Procedure Rules govern the procedures used in the family courts in England and Wales. Family lawyers are welcoming changes to the rules which came into force in April 2024, in which there is an increasing shift towards the resolution of family disputes outside of court.

Arguably the most significant change to the rules is that parties must consider NCDR not just before making a court application but throughout the case. Parties and their lawyers will now face greater scrutiny and potential repercussions for failing to consider alternative methods for resolving disputes without good reason. A new form must now be completed in any court proceedings setting out the parties views on NCDR and their engagement with this.

The rules do not give courts the power to compel parties to engage in NCDR. However, judges will be under a greater duty to consider whether NCDR is appropriate at every stage in the proceedings and can adjourn cases whilst parties engage in NCDR.

Previously, parties could rely on a range of exemptions to bypass the requirement for a Mediation Information and Assessment Meeting (MIAM) prior to making a court application, however the exemptions have now narrowed based on the expectation that alternative avenues of NCDR should be explored. Crucially, exemptions will still be available to parties where there has been domestic abuse and NCDR may not be appropriate.

Collaborative Law – one of the alternatives to court

 Collaborative law is a process that couples can use to resolve disputes after separation, including in relation to finances and children. The collaborative process requires each party to appoint a collaborative lawyer. Both the parties and their lawyers sign up to an agreement to try and resolve matters in a constructive way and avoiding court proceedings. The lawyers’ commitment extends to not representing their client in the event that court proceedings are opted for in the future.

Being able to resolve matters without the court’s input is of course dependent on both parties being willing to cooperate. There is also a level of trust that is required.

How does the collaborative law process work?

A series of four way meetings then takes place with the couple and each of their lawyers present throughout. This enables the parties’ options to be fully explored with the benefit of legal advice. Parties are more in control of the decisions made and the outcome of the case, compared with in court proceedings where the decision making is ultimately delegated to a judge if an agreement is not reached before a final hearing.

Collaborative law is becoming increasingly popular with those wanting to avoid the cost, acrimony and delay of court proceedings. If a couple can communicate well and share priorities, such as keeping the children in private school or maintaining the family home, negotiations in the collaborative process can ensure that these priorities are met where possible. The process also often helps parties to maintain better relations throughout the resolution of their case, so that they have the best foundation possible when it comes to continuing to co-parent their children together after their separation.

In complex cases, collaboration may be preferred over mediation because the advice is immediately available (although this can also be an option if lawyers attend mediation).

Collaborative law is normally significantly cheaper than court proceedings because it is not necessary to instruct barristers or attend hearings, although in difficult cases barristers who are collaboratively trained may become involved to assist with reaching an agreement.

With the collaborative process, the couple have control over the timetable, such as when the meetings take place, and therefore matters are typically resolved much quicker than in court proceedings where you are dependent on the speed that the court can deal with cases and list hearings. It is not uncommon for court hearings to be cancelled last minute because a judge is no longer available, despite the hearing costs having already been incurred.

There are various ways of resolving disputes in relation to finances or child arrangements, of which collaborative law is just one. It is often a question of finding the right approach for you and your spouse, and hopefully one which lead to a resolution that is acceptable to you without unnecessary delay and expense. Our team of family lawyers are available to discuss the various alternatives to court and to help you decide the options that may be most appropriate for you.

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