Family Procedure Rules amendments: a game changer for disputes

The amendments to the Family Procedure Rules (FPR) were a significant turning point in the structure and culture of the family justice system at the end of April 2024. Less than a month later, Nicholas Allen KC, sitting as a Deputy High Court Judge, delivered one of the first reported examples of the reality of the changes in a judgment handed down on 23rd May 2024.

NA v LA [2024] EWFC 113 has been described as a “paradigm case for the court to exercise its new powers" under the new FPR. In this case the court demonstrates its new powers under FPR 3.4 by staying proceedings to encourage the parties to engage in non-court dispute resolution.

The case narrative

In this case, the court dealt with the return date for two orders, one being an ex parte non-molestation and occupation order requiring the husband to leave the family home within six weeks, and the second being an order, for the preservation of two London properties.

In the hearing before Peel J, the court raised non-court dispute resolution as a possibility; however, the wife said that financial disclosure would be required before NCDR could be considered and the ex parte orders were made.

On that very same day, the wife filed her divorce petition and a form A despite there being no correspondence between their respective representatives about the steps being taken. Following this, a week later, the wife filed an application for maintenance pending suit and a legal services and payment order. At the Return Hearing for these applications, the parties agreed the following:

• the occupation order and the non-molestation order were to be dismissed and replaced with undertakings in the same terms.
• an agreement compromising the wife's maintenance pending suit and legal services payment order applications.
• an order transferring the family home into the wife's sole name with the preservation orders and Land Registry restrictions being discharged and/or removed.

Following this, the judge (Allen) raised with the parties the fact that he was considering staying the proceedings of his own initiative in accordance with FPR 3.4. However, he noted that FPR4.3(2) did require him to give both parties an opportunity to make representations as to whether or not he should stay proceedings.

As before, the wife reiterated her concerns that there had been financial non-disclosure and, until this disclosure had been provided, non-court dispute resolution would be unhelpful. The husband, however, said that he was content for proceedings to be stayed to enable the parties to explore NCDR.

Upon making his decision, the judge considered the facts of the case, noting that they were not unusual or unduly legally complex proceedings.

The judge reiterated that under the new rules, the court has a duty to consider non-court dispute resolution as an option for the parties and, in the absence of a valid MIAM exemption being claimed and if both parties have failed to attempt mediation or another form of NCDR, the court can stay proceedings.

Having considered the MIAM exemption put in by the wife (namely that any delay caused by attending a MIAM would cause irretrievable problems in dealing with the dispute), the judge dismissed the claim on the basis that the case was not urgent especially given that the MPS / LSPO applications had been dealt with and given the terms of the preservation order made at the Return Hearing.

The final words from the judge were that NCDR would be appropriate and that the parties should engage, as it would benefit them both financially and emotionally, and to consider the impact and benefit of this on their children.

What does this judgment highlight?

This case is one of the first under the new FPR rules, highlighting how the court can (and will) make full use of its new powers to adjourn proceedings where it feels NCDR would be beneficial for a couple, and a MIAM exemption is invalid.

It is an interesting insight into the cultural and practical shift in the family justice system, reflecting just how seriously the courts will take their new powers, and how important it is for couples to actively engage (where appropriate) in out-of-court resolution methods.

On the ground, the changes to the FPR have enhanced what family practitioners, for the most part, were already encouraging. Methods such as mediation, collaborative divorce, arbitration, and private FDRs have always been infinitely preferable to court proceedings, saving clients (and any children) emotional strain as well as being financially beneficial. However, the common practice now has legal backing, meaning clients must provide valid reasons why they cannot engage in NCDR.

Where NA vs LA fell down is that the exemption for the MIAM was no longer valid, whether it had been in the first instance or not. This was due to the preservation order made in respect of the two London properties, which meant that the case was no longer urgent and a delay caused by engaging in a MIAM would not be detrimental.

Another of the major issues was the Wife’s claim of lack of financial disclosure from her husband. However, as the judge concluded, NCDR would allow plentiful opportunities to embrace disclosure and that NCDR did not rely on the parties having previously disclosed. Therefore, in this case, the parties could engage in a number of resolution methods, including financial dispute resolution.

For HNWs, a private FDR hearing (pFDR) may be the most appropriate, requiring each party to disclose their financial situation and obtain advice from a financial adviser and a legal professional. The pFDR would take place with more detailed and personalised input, allowing the separating couple to reach a resolution with additional, tailored support.

As financial proceedings have been stayed and no First Appointment listed, it remains to be seen how this case will play out, and whether NCDR will be engaged with. It is important to remember that while the court now has powers to adjourn proceedings, it does not have the power to force parties to engage with NCDR, only to encourage them to, and allow the time to do so.

The future of the cultural shift in the family justice system

Arguably, this will be one of the first of many examples of where the court’s enhanced powers will be utilised to encourage separating parties to pursue NCDR methods. The widening of the definition of NCDR (i.e., not solely mediation) allows a plethora of options so parties can choose the most applicable to their situation.

It is hoped that these changes will bring a genuine cultural shift to the family justice system, specifically in the courts. It is generally accepted that family practitioners have been encouraging out-of-court methods wherever possible and safe for many years now. However, having the legal structures in place, including a narrowing of valid exemptions to the MIAM, means that clients and family lawyers alike must actively pursue the available options.

Joanna Newton is a Partner at Stowe Family Law