A pre-application protocol in family law financial remedy proceedings was published last week and it provides a very useful guide to the changes which the family courts will expect in family financial resolution proceedings.
The goal of the new family law protocol
The protocol sets out the main key steps every court will expect divorcing couples to take in relation to non-court dispute resolution (NCDR)
That is resolving the dispute other than through the court process and certainly making every attempt to resolve proceedings without ever having to start court proceedings the new protocol once again underlines the ever-present duty to make full honest disclosure and everybody involved in the proceedings will be required to comply with the terms of the new protocol even if they have not had professional legal advice.
The non-court dispute resolution process still recognises that full robust honest and transparent disclosure is an absolute prerequisite for both parties and it confirms that the use of the form E is still the best way for parties to exchange information.
In essence, both parties will still complete a form E even in the one couple one lawyer future world of financial divorce resolution.
Divorcing couples who obtain legal advice via the one couple one lawyer scheme can demonstrate that they have tried a constructive attempt to avoid contentious and costly court litigation by demonstrating that they have used the scheme in the first instance. Hopefully with sense and goodwill on both sides, many of the cases that lawyers once fought in and forced into court will no longer be necessary. But if it does become inevitable trying the one couple one lawyer approach in the first instance may protect you in relation to court costs moving forward.
The focus of this new approach is to move on to the process of resolving the financial dispute in an efficient and timely way and hopefully avoid the emotional toll on couples of the adversarial court approach. The guide goes on to stress that the one couple one lawyer approach should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as possible in the circumstances.
The new approach also demonstrates the rising concern judges have expressed for a number of years now on the hugely escalating and disproportionate legal fees that have been shown to be on the increase year after year. It is simply not acceptable in our opinion nor in the opinion of the authors of the new protocol for the fees to be so disproportionate to the overall financial value of the subject matter of the dispute. Proportionality must always be taken into consideration and looking at the guide if the resolution is not achieved and court litigation is required the court will take into account when considering and if so to what extent to make an order for one party to pay the cost of the other party if they have been overly aggressive or litigious in their approach in the first instance.
Final Thoughts
Here at Fair Result, we have always advocated that parties should be forced to resolve their financial dispute as quickly and as amicably as possible in a proportionate manner to the assets available before they could ever be allowed to apply for the divorce to end the marriage.
It looks like the new protocol is being designed to achieve just what Fair Result have been advocating for years.
Should you require any assistance with any aspects of your divorce or financial remedy please do not hesitate to contact Chris or Pete.
