Jon Armstrong continues his review of how things have changed in family law practice over the past 30 years:
- You can read Part 1 here.
Divorce
Divorce has undergone a significant change and one that perhaps might seem most revolutionary to someone in 1996.
In 1996 to get a divorce, you had to allege to the court that your marriage had irretrievably broken down, citing one of five “Facts” in support; adultery, behaviour, desertion, two years’ separation with consent, or five years’ separation. Very few people ever defended divorces; faced with behaviour allegations by a petitioner, normal practice was to simply deny them, but to agree that the respondent would not defend.
This was regarded as pretty old fashioned and unhelpful even in 1996. Who divorced who and why made not the slightest difference to financial issues or arrangements for children. Parliament therefore passed the Family Law Act 1996, which included a new no-fault divorce law.
Sadly, the law was a complete dog’s breakfast. It included a requirement for the parties to attend an information meeting before any divorce could be started, and then once the divorce was underway, there was to be a nine month period for reflection and consideration before any future steps could be taken to progress the divorce.
Eventually the government announced that it was delaying implementation indefinitely. At some point, the law was quietly abolished, having never come into force.
Very little changed as regards divorce for a while, apart from the arrival of civil partnerships for gay and lesbian couples in 2000 and then gay marriage in 2014. Civil partnerships were extended to heterosexual couples in 2019 – I believe that I acted in the first( or at the very least one of the first) applications for the dissolution of heterosexual civil partnership).
During 2014 to 2015, divorces were taken away from the various local branches of the Family Court and instead were dealt with by a small number of regional divorce centres.
Inevitably perhaps, it was a total disaster. The regional divorce centres struggled to cope. Bury St Edmunds Regional Divorce Centre was particularly notorious for horrendous delays. I was told that it struggled to recruit staff in a part of the UK where there was very low unemployment. It became so bad that I began to issue divorce petitions in the Liverpool Regional Divorce Centre which appeared to operate efficiently. This strategy only worked for a while; the RDCs slowly closed as divorce moved online, and Liverpool and all of the other centres closed – apart from Bury St Edmunds to which their work was transferred. Bury St Edmunds inevitably got worse.
Online divorce applications by litigants in person became possible in 2018, and solicitors were allowed to start using the online process in 2020. It is now not possible for solicitors to commence paper divorce applications; it is still possible for litigants in person to start a paper divorce, but not advisable. It tends to be slow.
No fault divorce was finally introduced by the Divorce Dissolution and Separation Act 2020, having finally been changed following the bizarre decision of the court in Owens v Owens to deny a divorce to the wife in a behaviour case. The new law came into force on 6 April 2022. Applicants no longer have to plead Facts and it is impossible to defend a divorce. Joint divorce applications are now possible. The nine month period for reflection and consideration included in the abandoned 1996 law, is thankfully only 20 weeks (still too long and utterly pointless in my view). The new law is a vast improvement on the old fault based system. Contrary to the doom-mongers on the Conservative backbenches who argued that it would lead to a huge increase in divorce, the divorce rate has continued to fall. In the early 1990’s, there were about 165,000 divorces a year. There are now about 110,000 a year.
Financial remedy cases
In 1996, if you could not agree financial issues, an application could be made to the court for ancillary relief (i.e. financial “relief” ancillary to divorce). Courts had their own preferred way of doing things. Colchester County Court would send the parties some standard directions telling them to file an affidavit of means containing details of their income, assets and liabilities. (Other courts may have done things differently. There was no standard nationwide procedure at the time).
Although there was a standard pre-printed affidavit provided by the court service for the parties to compete, solicitors never used it. I recall it being a bit lacking in detail. We would instead draft bespoke affidavits of means, which followed no standard format. That inevitably meant that the format was inconsistent, information was often missed out and the details were lacking.
The case could then drift, due to the lack of a court imposed timetable. The parties could swap a Rule.2.63 questionnaire, asking for further information and documents. If it wasn’t answered, we could apply to the court for an order that Replies be provided.
Eventually one or both parties would accept that they had all the information and documents that they needed and if they had not been able to negotiate an agreement, they would apply to set the application down for a final hearing.
This inconsistent and ramshackle approach was replaced in 2000 by a new mandatory and standardised process for applications for financial remedy orders. It has gradually evolved over the years, so that now the court issues a mandatory timetable for the filing of Form E financial statements, house valuations, indicative mortgage capacity evidence and details of suitable properties, along with questionnaires and other documents.
A First Appointment then takes place. The rules say that they are supposed to take place within 16 weeks, but it is not unusual to have to wait 8 or 9 months due the court’s excessive caseload. In an attempt to reduce the number of people going to court, the court has since April 2024 had the power to stay or adjourn proceedings if it is not satisfied that sufficient efforts have been made to resolve matters using Non Court Dispute Resolution (i.e. mediation, collaborative law, arbitration, Early Neutral Evaluation or a private Financial Dispute Resolution Appointment). it is not clear whether this has had the desired effect yet.
At the first appointment the court considers if questionnaires should be answered, and whether specialist reports are needed for house valuations, business valuations or about pensions. The court then sets a date for a Financial Dispute Resolution Appointment (FDR).
If both sides have all the information and documents needed at the First Appointment , the FDR can take place then. However, this tends to be rare nowadays, probably because only the more complex cases go to court now that very few people qualify for legal aid
At the FDR (which could be anywhere from 6 to 9 months later, due to court delays), the parties negotiate through their lawyers. There is nothing quite like being at court to focus the mind on doing a deal. You can feel the judge breathing down your neck. I remember one FDR where the judge was cross that no-one had done a deal by 11.30 am, and all the lawyers in the court were summoned to his chambers where he ticked us all off for not settling anything. I’m not sure that he thought we had been doing since 9 am that morning. We all fled from the court giggling like naughty schoolchildren. My client’s case settled.
Where we cannot reach an agreement at an FDR, we make submissions to the judge setting out the reasons that our client should receive what we are arguing for, and informing the judge about the without prejudice offers that have been made by the court. The judge provides an informal and non-binding indication of what he or she thinks that a judge would do at the final hearing. The judge at the final hearing is not allowed to know what without prejudice offers have been made. This is a massive judicial nudge designed to encourage the parties to reach an agreement. The final hearing judge could order something different to what the FDR judge indicates, as the judges have enormous discretion and there is often no single correct solution – although at the final hearing the judge could very well be of the same view as the FDR judge.
As a result, the vast majority of applications conclude with an agreement at the FDR.
On balance, it is an excellent system that ensures that you get all the information that you need and the assistance of the court in reaching an agreement. It has developed over the years, as the court constantly tries to fine tune and clarify the law. Pension attachment orders and then pension sharing orders were introduced, arguably adding a whole new layer of complexity to financial disputes.
It is not perfect. It takes a very long time and costs a great deal of money. The court can tailor solution to the circumstances of the case, but this flexibility also means that the outcome is difficult to predict as judges have enormous discretion and no two cases are the same. It has been refined during the past few years, to make it more efficient, which has led to a great of additional work being needed, greater cost to the client and, to be honest, not enough time in which to do it, because the extra stuff is mostly to be done during the two week period before a First Appointment or an FDR, which places enormous pressure on the lawyers.
It is often overkill for cases where the parties’ incomes are low and their assets are not high. As a result, there is now a pilot scheme underway for low asset cases, which skips the first appointment completely. It is not being piloted in my local area, and is taking place in the North of England and the Midlands. I suspect that this is because house prices are lower there.
Non Court Dispute Resolution (NCDR)
One of the biggest changes since 1996 has been the rise of non‑court dispute resolution (NCDR) or alternative dispute resolution (ADR). NCDR includes mediation, collaborative law, arbitration, Early Neutral Evaluation and private FDRs. ADR is very similar, save that it also includes negotiations through solicitors.
Thirty years ago, mediation was unheard of in family law. In the late 1990’s it became commonplace, with MIAMs introduced to ensure parties understood the alternatives to court before they started applications about finances or their children. The obligation to attend a MIAM used to be honoured more in the breach than in the observance, but the court now takes MIAM attendance far more seriously. Woe betide an applicant who fails to attend a MIAM before applying to the court, or who wrongly claims an exemption from MIAM attendance.
In 2024 the court gained the power to refuse to deal with an application if it was not satisfied that sufficient efforts have been made to mediate or using other forms of NCDR, although in family proceedings it cannot, as yet, order the parties to mediate.
Mediation is often misunderstood as an alternative to using a solicitor. It isn’t — it’s an alternative to using the court. Solicitors still advise on and formalise proposed agreements reached in mediation.
Solicitors did not attend mediation sessions with their clients, but recently hybrid mediation has become an option; this allows solicitors to take part in the mediation.
I trained as a mediator in 2011, but stopped practising as a mediator due to onerous accreditation requirements introduced by the Family Mediation Council. The cost involved for my firm would have been excessive and unjustifiable for what was only ever going to be a sideline. However, I still understand the process well and can assess its suitability in a case and advise clients who are mediating.
Collaborative law arrived from the USA and Canada about 20 years ago. I trained as a collaborative lawyer in 2006 and have handled many such cases. It is non‑confrontational and ideal for couples seeking an amicable separation. If it breaks down, both parties must instruct new solicitors. It has many of the same advantages as mediation.
This involves non-confrontational and co-operative negotiations which can be ideal for couples who are keen to have an amicable end to their relationship. It involves working together in a collaborative way with the lawyers and commits the parties to not litigating. If it breaks down, the parties must instruct new solicitors to act for them in any court application.
It shares many of the same advantages as mediation, but with a solicitor on hand throughout to give advice and draft documents, and to take part in the negotiations
An unofficial “collaborative lite” version exists, where the parties and their lawyers don’t sign the agreement barring the lawyers from acting in any subsequent court proceedings. Collaborative Lite is controversial. I recall being verbally eviscerated by a collaborative trainer when I mentioned that some local practitioners preferred it. She regarded it as heresy.
However, I cannot help but note that collaborative cases have significantly dropped off over the past few years and this may be because clients dislike the idea of having to find a new solicitor if the process fails and they then need to apply to the court.
Family arbitration arrived about 15 years ago. It allows parties to appoint an arbitrator to decide issues. It is faster than court and legally binding, but uptake remains low. The arbitrator’s decision (known as an arbitral award) is legally binding and can be enforced through the court. Unlike mediation and collaborative law, where the parties are free to agree something different to what a court would impose of they were not agreed, the arbitrator makes a decision in accordance with the law, although they can agree that the arbitrator will limit his or her decision to specific “discrete” issues.
Arbitration can be much faster than the court, as well as resulting in the same legally binding outcome. I would be wary of selling the process to a client by saying that that it is less expensive than court proceedings, but it can be in some cases.
Arbitration is still quite rare. It can be very difficult to persuade the other side to commit to the process. In part, this seems to be because solicitors are often concerned that it may not be suitable in a case where a party may not be co-operative. i also suspect that as relatively few solicitors have ever done it, they often prefer to stick to the more familiar options.
In the past few years, two more options have arrived; the Early Neutral Evaluation (ENE) and the private Financial Dispute Resolution Appointments (pFDR).
ENEs and pFDRs both involve non‑binding evaluations by barristers or solicitors. Both of these options involves jointly instructing a barrister or solicitor to provide a non-binding ultra indication of the likely outcome if a contested application was made to the court. An ENE tends to be done in writing. A pFDR is much more formal; it’s a mock court hearing, identical to the FDR at court in a financial remedy case, except that it is presided over by a barrister or solicitor (sometimes called a private FDR judge, but more properly described as an Evaluator). pFDRs are not cheap, but they are another useful way to avoid court proceedings.
28 March 2026
To be continued…
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