Before COVID-19 and social distancing dramatically reduced the number of cases being handled by the Family Courts in England and Wales, a major backlog was already building.  This undoubtedly impacted the time divorce proceedings were taking.

According to official data, the average time taken to complete a divorce with financial settlement reached 34.4 weeks in the fourth quarter of 2019 – a record figure and a steep rise from 24.8 weeks in the same quarter only two years previously.

Seeking ways to reduce the backlog, Sir Andrew McFarlane, President of the Family Division in England and Wales, commissioned a report carried out by the Nuffield Family Justice Observatory.

After gathering evidence from more than 930 respondents who had participated in remote hearings, the report expressed doubts regarding the ‘fairness’ of video hearings.  It is therefore unlikely that technology will deliver a satisfactory solution any time soon.

One alternative to technology is private Financial Dispute Resolution (FDR).  This process can lead to a quicker resolution without any adverse impact on the fairness of the decisions being made.

The standard FDR process has three distinct stages, and is required when a financial settlement needs to be thrashed out in court rather than agreed between the parties via some other form of mediation.

Full and frank disclosure of assets

The first stage requires both parties to disclose their assets and liabilities.  This information is then used during the first court hearing to ensure the maximum agreement between the parties regarding the disclosed details.  Once the picture is clear, they can move to the FDR itself.

The FDR is a court hearing before a judge, who guides the parties to reach a negotiated settlement.  The hearing is ‘without prejudice’, which means offers or concessions made during the hearing cannot be brought to the attention of the court later.

When the FDR is effective, an agreed settlement is reached during the hearing or shortly afterwards. If no agreed settlement is reached, the process moves to a final hearing when the judge will decide what constitutes a fair financial settlement.

FDR is a quick and clean way of moving the divorce process along, and enables both parties to move on and plan their futures.  The Family Court backlog however means that many divorcing couples face a long wait for their case to be heard, with no control over timescale.  This is where Private FDR comes in.

Why Private Financial Dispute Resolution makes sense

Private FDR is similar in approach to normal FDR, but speeds the process and maximises the convenience offered to both parties and the chances of success.

Rather than waiting for a Family Court appearance, the parties pay for their own financial remedy specialist in place of the FDR judge.  The specialist is often a retired a judge, a solicitor or a barrister.

Once the parties have agreed on a specialist, a convenient date and venue can be chosen.  Venues are typically a barristers chambers or solicitors offices.

Private FDR puts the timetable back in the hands of the individuals involved.  It also ensures the judge hired will be completely focussed on their case, rather than working on multiple cases amidst the ever-present pressure on Family Court time.

As a private FDR is voluntary, rather than a court-imposed one, both parties are likely to approach it more with a spirit of co-operation, seeking a mutually acceptable agreement.  Avoiding the austere surroundings of a court also tends to induce discussion rather than conflict.

Agreeing on the judge also means the parties can appoint an individual with specialised knowledge in an area likely to impact the final settlement, such as when the parties have shared business interests.

Preparation vital in Private Financial Dispute Resolution

Both parties should work with their legal teams to prepare a position statement, and in the best case scenario, make a without prejudice offer before the private FDR takes place.

The position statement for each party will set out areas of agreement and dispute, along with their arguments on the unresolved points which they want the private FDR judge to adjudicate on.

At the hearing itself, the barristers for each party will make submissions.  The judge will then indicate what they think an appropriate outcome would be, based on the submissions and any papers they have seen.

The indication might be an exact outlining of the outcome, or it could be presented as a range of options.

If an agreement is reached, then this is set out formally in a court order, agreed by both parties and filed at court to be approved by a judge.  Once the order has been made, the divorce can be finalised via decree absolute, and the terms of the agreement implemented.

As with all issues surrounding divorce cases the exact advice for any individual will depend upon the precise circumstances of that case.

There is little doubt that the growing popularity of private FDR reflects the realities of an overstretched court system, and the benefits of a process designed to encourage calm negotiation and agreement.  Simply put, it often reduces the time, stress and financial burden of divorce proceedings.

If you would like to explore all possible solutions to achieve an agreeable divorce, whatever stage you may be at, then please get in touch with Mike Vale, a Family Law Consultant here at Ansons on 01543 267236 or email him at mvale@ansons.law

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