Pre-Action Protocol Changes – How Can They Benefit You?

The 31^st May 2024 was an incredibly important day for financial remedy practitioners. Financial remedy, is ancillary to the main suit of divorce proceedings. A divorce, only severs the marital ties which exist between spouses, and it does not sever the financial ties which may exist between the parties.

Financial remedy, has historically been considered as quite a complex area of law, and as such, whilst you may feel comfortable running your divorce yourself (although a DIY divorce does not come without risks), it is still fairly unusual for parties to try and resolve their finances between them.

The Considerations of the Court

Every case in financial remedy, falls on its own facts, and no two cases are the same. The court will first look to Section 25 of the Matrimonial Causes Act 1973, as this proceeds a framework for the both the parties and the court to consider. In summary, Section 25 states:-

25 Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24:-
(1)It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24  above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2)As regards the exercise of the powers of the court under section 23(1)( a ), ( b ) or ( c ), 24 above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. the standard of living enjoyed by the family before the breakdown of the marriage;
4. the age of each party to the marriage and the duration of the marriage;
5. any physical or mental disability of either of the parties to the marriage;
6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Of course, utilising the above as a starting point, and bearing in mind the welfare of the child is the court’s first consideration, as family lawyers, we are present and instructed to assist in reaching an agreement to appropriately divide the matrimonial assets.

In every case (save for matters concerning serious domestic abuse), the court has historically required the parties to engage in mediation. Every party who makes an application to the court, has to file a certificate known as a MIAM (mediation information and assessment meeting) to demonstrate they have considered and/or attempted mediation.

The Changes in Pre-Protocol

As of 31^st May 2024 however, the law has tightened up. Now, the burden has passed well and truly onto the parties to ensure they not only consider mediation, but also that they consider and attempt non-court dispute resolution (known as, and referred to as NCDR). This can take the form of a number of different avenues, to include but not limited to:-

a. mediation (a third party seeking to facilitate a resolution);
b. arbitration (a third party deciding the dispute);
c. neutral evaluation (a third party giving a neutral indication on the dispute, such as a private Financial Dispute Resolution process); and
d. the collaborative process (the parties and their collaboratively trained legal representatives meeting together, but with those legal representatives being prevented from representing the parties in later court proceedings if the collaborative process does not result in settlement).

As your lawyers, we are now under a duty to share the pre-application protocol in financial remedy proceedings. This is to ensure, that as our client, you are fully aware of the process, but also of all avenues available to you, prior to commencing contested court proceedings. Further, and quite importantly, there is now a costs risk to the parties, if you fail to appropriately consider NCDR. This in essence means that, unless the Judge is satisfied you have utilised court as a last resort, you may be ordered to reimburse the other parties’ legal fees.

The Breakdown of the Protocol

The intention of the protocol is to:-

1. enable the parties to understand each other’s position;
2. assist the parties in deciding how to proceed;
3. identify the issues in dispute;
4. narrow the scope of the dispute;
5. try to settle the issues without court proceedings;
6. support efficient management of dispute resolution; and
7. reduce the costs of resolving the dispute.

Ultimately, if an agreement can be reached between spouses, not only does it save both parties considerable costs, but also it generally results in a happier outcome for all. Divorce itself is never a ‘happy’ process, as you are bringing a marriage to an end. However, particularly where children are involved and a tie between the parties may remain, the new protocol, with the focus on NCDR, will attempt to focus the parties and hopefully bring a degree of collaboration.

You can find out more information on the new protocol on the government website, which publishes all the practice directions and protocols, intended to govern both the parties (and the lawyer!) through the legal process.

How can we help?

Here at Harding Evans, we understand that this is your life and your relationship breakdown. A divorce, and the subsequent financial remedy is not about winning or losing, but rather about reaching an agreement, which meets the needs of any children, along with both you and your spouse.

You can trust us to guide you through the divorce process, keeping your best interests at heart, whilst trying to keep proceedings as stress-free as possible.

If you have decided that you want a divorce, please contact our Family & Matrimonial team today to discuss the next steps forward.