“Pre-action Protocols” in family cases: What happens before submitting an application to the court?

For some time, it has been compulsory to find out about mediation before being able to submit a court application regarding finances on divorce or child arrangements. Attending a Mediation Information & Assessment meeting (MIAM) has successfully diverted many cases away from court and enabled many couples to reach agreements on their own terms, saving considerable time and money.  It remains a requirement to attend a MIAM, unless a valid exemption can be claimed.

At a MIAM, a mediator will also provide information about other forms of NCDR such as collaborative law, arbitration and round table meetings, so that if mediation doesn’t appear suitable, the right process can be chosen by the couple to give them the best chance of resolving their dispute without resorting to court proceedings.

Alongside the update to the court rules, are “pre-action protocols”. These set out the steps couples are expected to take before they submit an application to the court. This best practice forms part of the rules and so it must be complied with. In financial cases, the protocol requires couples to attempt an exchange of voluntary financial disclosure to facilitate settlement discussions. This will help identify the issues to be resolved in the case at an early stage. Financial disclosure must be full, honest and open and there is an ongoing duty to disclose any significant changes in that disclosure. The protocol also focusses on recognising the impact of correspondence received during divorce and discourages the use of entrenched, polarised or hostile positions which will stand in the way of settlement being achieved.

In cases concerning children, parents are encouraged to identify the key issues in their dispute at an early stage, focus on the best interests of the children involved and promote good outcomes for those children. Coming to court should be the last resort if there are no safety concerns. Wherever possible, and where age appropriate, it is also expected the child/children involved in the dispute will have their voices heard when decisions which impact them are made. The protocol identifies that outcomes are likely to be better for the whole family when children understand how their lives will change and are helped to contribute to discussions about future family arrangements.

Helen Cankett in BPE’s Family team is a Family Mediator and Collaborative lawyer, and the whole team has experience of supporting clients through arbitration and other forms of NCDR. It’s important to find the right process for you and your circumstances and we will talk you through your options at an early stage so that you can choose the most appropriate form of NCDR. In the event it isn’t possible to use any form of NCDR we can support you through the court process, during which many cases settle by agreement in any event.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.