Avoid Costly Litigation: Utilise Post-Separation Agreements by Sian Gissing-McMeel

The Impact of Recent Legal Changes on Family Proceedings

Recent developments in family law emphasise the benefits of Alternative Dispute Resolution (ADR) over traditional litigation. From 29 April 2024, changes to the Family Procedure Rules (FPR) will encourage parties to pursue ADR, with significant implications for those who choose not to engage.

Key Changes Effective 29 April 2024

1. Court's Encouragement of ADR:

Rule 3.4(1A) of the FPR allows the family court to actively encourage ADR, ensuring there is sufficient time within the proceedings for this process.

2. Adjournment for ADR:

Amendments to Practice Direction 3A empower the court to adjourn proceedings, without the parties' agreement, to promote ADR (rule 4.1).

3. Costs Consequences:

In financial remedy cases, failure to engage in ADR without good reason may lead to a departure from the general principle of no orders as to costs (amended rule 28.3(7)).

Why Consider ADR?

ADR can offer a more efficient, cost-effective, and amicable way to resolve disputes. The court’s power to adjourn proceedings to facilitate ADR aligns with the broader trend in civil proceedings, as highlighted in the case of Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416. The Court of Appeal recognised the court's ability to compel parties to engage in ADR, provided it does not infringe upon the claimant's right to a judicial hearing and is proportionate to achieving a fair, quick, and cost-effective resolution.

 

 Benefits of a Post-Separation Agreement:

A post-separation agreement can:

  • Clarify financial arrangements

  • Establish terms for child maintenance and custody

  • Provide a clear framework to avoid future disputes

  • Save time, money, and reduce emotional stress compared to prolonged litigation

Practical Implementation:

In practical terms, the new rules encourage the court to utilise natural breaks in proceedings to prioritise ADR. This approach was evident in the Churchill case, where parties used a break before the final hearing to pursue ADR. Directions for the final hearing were postponed, focusing resources and energy on resolving the dispute amicably.

Conclusion:

By choosing to engage in ADR and drafting a post-separation agreement, you can avoid the high costs and emotional strain of litigation. With the incoming changes to the FPR, the family court now has enhanced powers to facilitate ADR, emphasising its growing importance in family law. Finally, should you find yourself in Family/Financial Court proceedings, you will empower yourself by showing the Court the evidence that you have sought to be compliant to the FPR, PD by signing a 'Post Separation Agreement'. This arms you in a stronger position legally, adhering to the rules. 

Take Action:

Consider the advantages of ADR and a Post-Separation Agreement for your situation. We have drafted a 'Post Separation Agreement' for download, for free. For more information and to start your ADR journey, contact us today. 

 

(Our Sample Post Separation Agreement )

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