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It is a little over a month since the amendments to the Family Procedure Rules 2010 (“FPR”), came into effect on 29 April 2024. We previously commented that it will now be for the Judiciary to steer this change and help develop a more progressive approach to resolving family law matters outside of the court.
The Court’s use of the amended rules
In NA v LA [2024] EWFC 113, both Mr Justice Peel and Nicholas Allen KC, sitting as a Deputy High Court Judge, have started to do just that.
On 14 May 2024, the wife in this case issued two ex-parte applications for Non-Molestation and Occupation Orders under the Family Law Act 1996. In addition, the wife also sought an interim order pursuant to FPR Rule 20.2(1)(c) for “the detention, custody or preservation of relevant property” in respect of property owned by her husband. Those interim orders were granted.
On the same day, and possibly while still at court, the wife filed her divorce application and Form A application in relation to financial matters. On 22 May 2024, the wife then went on to file an application for Maintenance Pending Suit (“MPS”) and an application for a Legal Services Payment Order (“LSPO”).
The matter was listed for a return date hearing on 23 May 2024 before Nicholas Allen KC. As a result of spending the entire day negotiating and drafting at court, both parties through their legal representatives were able to reach agreement in respect of the wife’s applications. Orders were made reflecting their agreement as follows:
The wife no longer sought the continuation of the interim non-molestation and occupation orders pursuant to FLA 1996. Undertakings were instead provided by the husband in similar terms:
- The wife’s application for MPS and LSPO were compromised, with the husband agreeing to pay the wife £29,500 per month.
- The husband would pay to the wife’s solicitors the sum of £185,000 comprising her legal costs to date (£125,000) and an additional amount (£60,000) for legal fees to the conclusion of the First Appointment.
- Finally, in relation to the Preservation Order (for the property) pursuant to FPR Rule 20.2(1)(c), the husband agreed to transfer the family home into the wife’s sole name and the Preservation Order and Land Registry restrictions were to be discharged or removed.
The interesting element of this case is not how these wealthy individuals have compromised the initial court applications issued by the wife, but rather how the court now expects them to proceed to the resolution of their financial matters.
We need to first rewind to the hearing before Peel J in relation to the Preservation Order as to property. Nicholas Allen KC, in his judgment, referred to an unapproved solicitor’s attendance note of that hearing. The note records that Peel J raised NCDR with the parties, to which the wife’s barrister explained that the wife was in “near ignorance, other than the London properties, as to the extent of her husband’s wealth and resources.” The note goes on to record that Peel J responded, “I know it is a culture shift, but all lawyers and judges must get into our heads that it is not simply a case of disclosure before we contemplate anything. Non court dispute resolution must be considered which can embrace disclosure …”. The wife’s barrister said, “I agree with the sentiment. There are steps for the court to take in this particular case before we can enter into that”, to which Peel J responded, “[s]ee where you go but please don’t lose sight of the new dispute resolution requirements”.
At the return date hearing on 23 May 2024, once the orders had been made, Nicholas Allen KC then asked the parties their views as to NCDR, in light of the comments that had been previously made by Peel J. The wife’s position was that a First Appointment was first required, thereby providing the wife with financial disclosure from the husband. At that stage, the wife would then consider the possibility of a private FDR. The husband’s position was that he was open to exploring NCDR.
The Judge then made it clear that he was considering staying the proceedings on the court’s own initiative. FPR Rule 3.4(6) states that “[w]here the court proposes to exercise its powers of its own initiative, the procedure set out in rule 4.3(2) to (6) applies” and as Rule 4.3(2) states, “… where the court proposes to make an order of its own initiative (a) it may give any person likely to be affected by the order an opportunity to make representations …”. The wife’s barrister stated that the wife was “semi-blind” as to the parties’ financial assets and that in order to advise the wife, she would need sworn financial disclosure. The husband maintained his position that he was open to NCDR and endorsed a stay of the proceedings.
The Judge was of the view that financial disclosure does not need to be exchanged prior to the commencement of NCDR. Indeed, financial disclosure will be a feature of NCDR. Further, there was nothing particularly unusual or complex about the parties’ financial position. The Judge also reminded the parties and their legal representatives that the court has a duty under FPR Rule 3.3(1) to consider NCDR at every stage of the proceedings. In light of the wife’s ex-parte applications, she relied upon an exemption to the requirement for a Mediation, Information and Assessment Meeting (“MIAM”) due to the urgent nature of her application. Once those urgent applications have been dealt with, however, the court can enquire, under FPR Rule 3.10(1), whether the MIAM exemption (a) was not validly claimed; or (b) was validly claimed but is no longer applicable. In this case, the Judge was clear that, in light of the Preservation Order as to property that he made, it followed that the MIAM exemption is no longer applicable.
Tough love from the Bench?
The Judge said, “In my view and in compliance with my duties as set out above, this is a paradigm case for the court to exercise its new powers. I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.”
As such, the Judge ordered that the financial proceedings should be stayed with immediate effect and that no First Appointment should be listed. The parties now have six weeks until they need to file a joint letter to the court detailing “(i) what engagement (if any) there has been with NCDR; (ii) whether any of the issues in the proceedings have been resolved; and (iii) in light of the foregoing their respective proposals for the way forward.”
Upon receipt of that letter, Nicholas Allen KC will “consider the appropriate way forward.”
Is this tough love from the Bench? Some may argue yes, given the wife’s lack of knowledge about the parties’ financial assets. But this is a welcome judgment which sets out very clearly the expectations of the court upon everyone involved.
The important lesson to be learned, and indeed implemented, from this case is that parties must now seriously (and regularly) consider NCDR and the benefits it could bring in reaching a resolution. That resolution could either be in relation to one issue that has become a sticking point, or the resolution of all matters.
The Judge was also clear that not only would the parties benefit from NCDR, but also, and arguably more importantly, so would their children. Children are too often caught up in their parents’ destructive and protracted divorce, suffering well-documented short and long-term consequences as a result. That is no way to spend a childhood.
The court is there to help those who are vulnerable and need its assistance. In this instance, the wife did initially need the assistance of the court at the outset in order to protect her position, but once that protection was in place, it did not follow that the wife could expect simply to continue within the court system.
The way forward
The advice must be to take a step back and reassess where you are. You must consider again the value of NCDR and which particular method may suit your needs and circumstances. It may be that NCDR will help you reach an agreement in respect of some issues, but not all. The court will then be used for a final determination. Failure, however, to engage with NCDR at all, may almost inevitably result in the court stepping in and making those decisions for you. You never know, a costs order may also be made against you if you fail to properly consider and/or action NCDR.
Moving forward, we are keenly watching for any reported cases where the court does utilise the costs order ‘stick’ to show that it means business.
If you would like any advice in relation to NCDR then please email us at enquiries@tandsfamilylaw.com.
