With the Family Court system at breaking point, what are the alternative options?
by Gavin Henshaw
Over the last few years the Family Court system in England and Wales has experienced a number of difficulties which has resulted in a significant backlog in cases being dealt with.
Although the Family Judges are all working diligently and the Family Court system has not yet fully broken; if the current problems the Courts are facing persist, it will not be long before something has to give.
Currently the Court is focusing on dealing with urgent applications that involve children and domestic violence issues. Whilst this course of action is, the correct one to be adopting, given the nature of the issues these types of application address; this does mean that other issues, such as dealing with the financial aspects of a divorce or civil partnership dissolution are facing delays in being progressed.
The Court is increasingly notifying parties involved in financial cases (in some situations only a few days before their hearing is due to take place) that the planned hearing has been vacated because there is no Judge free to hear the case. Having had this occur on a case I have recently been involved in, I have seen first-hand the impact this has on a client both in the financial and emotional sense.
Also, the problem the client faces is further compounded by there being a delay in the Court listing the hearing again due to the general backlog of cases the Courts are dealing with.
In some cases, such as where there are limited funds available to the parties or one party is not co-operating with the proceedings, unfortunately, the only option will be to persevere with the Court proceedings and look to progress these to a conclusion as soon as possible.
However, where there is a willingness by both parties to get their financial matters resolved there are other course of action that can be taken.
Collaborative Law Process
Prior to any financial proceedings being issued, if the parties to a financial case have an amicable relationship, are prepared to deal with matters on a face to face basis but want the benefit of independent legal advice throughout the negotiation process, the use of collaborative law might be an appropriate option for them.
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Pros
- If an early agreement is reached, legal costs will be significantly less than those incurred in contested proceedings.
- Negotiations take place in a relaxed environment under a timetable set down by the parties.
- The process generally reduces the time taken to resolve matters as face to face negotiations can deal with a number of issues within a short timescale.
- Discussions can be on any issue important to the parties and can be used to resolve all issues that arise as a result of the breakdown of their relationship.
- Both parties will respectively have their solicitor with them at all times during the negotiation and therefore will have the benefit of specific legal advice on any queries that may arise.
Cons
- The process is voluntary so both parties have to agree this course of action.
- If the process breaks down, you will need to instruct a new solicitor to represent you in any subsequent contested proceedings.
Private Financial Dispute Hearing (FDR)
If proceedings have already been issued, at some point the Court will list an FDR. An FDR is traditionally a Court led negotiation where the parties are given guidance by a Judge as to what a suitable settlement may be if the Court determined the case at a Final Hearing.
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Pros
- The private FDR Judge will be legally trained with a background in family law. The private FDR Judge is agreed between the parties and, if a case involves a specific technical or complex issue, the parties can ensure the private FDR Judge has expertise in this area.
- The private FDR can be agreed for any date that suits the parties as opposed to a date that is simply set by the Court.
- The private FDR Judge will be provided with all relevant paperwork in advance of the private FDR and will have had an opportunity to fully consider the same and have any questions they may have answered before the hearing. Therefore, the private FDR Judge will be fully appraised of the situation before the hearing.
- The private FDR Judge will be available for the whole day (as opposed to a Court appointed FDR where the Judge will have a number of FDR hearings to deal with in one day and will only have a limited time allocated to deal with each of these). As such, the parties can take the necessary time to have proper negotiations.
- If an agreement is not reached at the private FDR, the process may still assist in narrowing the issues between them and result in an overall agreement being reached shortly afterwards. However, even if this does not occur, the parties can still return to the current Court proceedings and look to have a Final Hearing listed as soon as possible thereby avoiding any unnecessary further delay or costs.
Cons
- The process is voluntary so both parties have to agree this course of action.
- There is an additional cost involved in paying for the private FDR Judge. However, this cost is not excessive and is normally split equally between the parties.
Arbitration
If negotiations have already taken place between the parties, there are still some issues that you cannot be agreed on and neither party wants to use the Court process; the parties can agree to appoint an Arbitrator to make a decision for them in their case.
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Pros
- The Arbitrator will be legally trained with a background in family law. Again if a case involves a specific technical or complex issue, the parties can ensure the Arbitrator has expertise in this area.
- The Arbitrator process can be used alongside the other forms of negotiated settlement including the collaborative law process and the use of a private FDR.
- If the outstanding issues are limited and are stopping an overall agreement being reached, the use of an Arbitrator can resolve these issues quickly without the need to involve the Court.
- The Arbitrator can deal with a case as the Court would but in a quicker timescale which is agreed in advance between the parties.
- The Arbitrator decision will be binding on the parties and, if necessary, can be enforced by the Court.
Cons
- The process is voluntary so both parties have to agree this course of action.
- There is an additional cost involved in paying for the Arbitrator. However, this cost is not excessive and is normally split equally between the parties.
Where parties are dealing with the financial aspects of their marriage and are unable to reach an overall agreement between themselves; the above options demonstrate that there are now better options available than simply issuing a Court application and for matters to be dealt with under a Court imposed timetable.
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