Court fees due to increase in family proceedings in April 2024

As of April 2024, the family court fees will be increasing. Having remained the same since 2021, the rationale behind this increase, as stated by the Ministry of Justice, is to ensure that the courts continue to receive an adequate stream of income by ensuring that fees keep pace with increased costs to HMCTS, while at the same time ensuring that access to courts is not impeded and also minimising the cost to the taxpayer as much as possible.

Whilst the government asserts that the fee increase is necessary and provides assurance that access to justice will not be impeded, there is concern that the increase in fees will increase the challenge of accessing justice and act as a deterrent to commencing proceedings.

The government has proposed to launch a more generous Help with Fees scheme to provide greater levels of financial assistance to those most in need, which must not be overlooked.

In this article I will summarise the upcoming increases in court fees for 2024.


The court fees that will be increasing in Private Family Proceedings include:

Applications to initiate divorce and financial remedy proceedings

  • Form A Notice of intention to proceed with an application for a financial order other than by consent will increase from £275 to £303

A notice of intention to proceed with an application for a financial order to which Family Procedure Rules (FPR) 2010, SI 2010/2955, 9.4(a) applies, or an application for a financial order to which FPR 2010, SI 2010/2995, 9.4(b) applies (other than an application for a consent order).

Whilst the government did initial intend on increasing the divorce petition fee to £652, after careful consideration of the consultation responses and further analysis of the of the costs underpinning the fees, they have now decided against this.

Several respondents raised concerns about the impact of raising the divorce fee on access to justice, particularly on women as they are more likely to apply for a divorce than men but tend to face more difficulties when navigating the justice system and are statistically more likely to be on lower incomes given the gender pay gap.

Some respondents also argued that the fee is already too high, and couples may feel obliged to stay in unhappy or abusive relationships simply because they may not be able to afford the fee.

Some respondents also opposed the increase, suggesting that the current fee is already too high and disproportionate to the underlying service cost. They highlighted the fact that the administrative process has been simplified through the introduction of the digitised service and no-fault divorce, which means that there is no longer a requirement to apportion blame on one party and minimising unjustifiable contestations


Applications within proceedings

Description Costs Before April 2024 Costs After April 2024 Increase
Application in existing proceedings without notice or by consent, except where separately listed £53 £58 £5
Application in existing proceedings on notice, except where separately listed £167 £184 £17


  • An application in existing proceedings without notice or by consent, except where separately listed will increase from £53 to £58
  • An application in existing proceedings on notice, except where separately listed, will increase from £167 to £184


 Children Act Proceedings

  • The court fee will increase from £232 to £255.

This includes applications in the following proceedings:

  • Section 8 Children Act 1989 – Child Arrangements, Specific Issue and Prohibited Steps Orders
  • Schedule 1 Financial provision for a child
  • Special Guardianship
  • Parental Responsibility
  • Change of a child’s surname or removal from the jurisdiction while a child arrangements order is in force under s 13 Children Act 1989
  • Appointment of a Guardian

A full list of the proposed Family Court fee increases, can be found in the consultation papers here. If you would like any advice or assistance, please do not hesitate to contact us.

Family Mediation Week – Something to Celebrate

I attended a wedding a while ago where the atmosphere was tense rather than joyful because the bride’s parents had divorced ten years previously and animosity between them was still apparent from the seating plan.

Marriage, as an institution, has been steadily declining since the 1970s and the UK divorce rate is estimated at 42%. Cohabiting couples are the fastest growing family type year on year. Whatever the relationship, a bad feeling lingers after an adversarial separation which continues to spoil the atmosphere of family gatherings in future years.

So what can a separating couple do to make sure they attend their children’s celebrations without ruining the happy day?


Mediation is the obvious dispute resolution option.

It is a civilised way of resolving separation and relationship issues, such as the timing of divorce, grounds for a divorce, parenting arrangements and finance. It has nothing to do with reconciliation or counselling. A trained mediator meets with a couple and helps them identify the areas of disagreement and explore the areas for settlement. The process is confidential and both parties are encouraged to take independent legal advice. Ultimately, they take control of their own separation.

A good example is a mediation I conducted recently with Susanna and Alan. They had accepted that their marriage was over but were still living in the same house and wanted to reach an agreement about their children.
Alan had a new relationship and this was upsetting for Susanna. She was also worried about how it would affect the children.
In mediation, it was possible to agree a parenting schedule so that Alan was spending frequent time with the children. He agreed that the children should not be brought into contact with his girlfriend until after he had separated from Susanna. The couple then went on to agree that the family home should be sold but Susanna would receive a greater proportion of the proceeds to reflect the fact that Alan had more pension provision. Both Alan and Susanna had independent legal advice, but their legal fees were kept in check as most of the hard work was done in the mediation process. An agreement was reached without them having to go through slow, expensive and emotionally traumatic legal proceedings.


Mediation is a flexible process.

It is equally valuable for married and cohabiting couples and those ending civil partnerships. It is usually a three-way process (either face-to-face or by Zoom) where the couple discuss their separation and outstanding issues with their chosen mediator. However, in high conflict situations a couple may choose to be in different rooms (or Zoom rooms) with a mediator moving between them (known as shuttle mediation). It is also possible to attend mediation with legal advisors (known as hybrid mediation).

The author of this post is Kim Beatson who was  one of the first solicitors in the country to qualify as a mediator. She was the first person to win the prestigious Family Law Dispute Resolution Practitioner of the Year (2011). She is a Band 1 mediator in Chambers & Partners where she is described as “An outstanding mediator who has a huge amount of emotional intelligence”. For information about her mediation service please contact her at 020 7940 4011.

Hybrid Mediation and Financial Neutrals

Mediation is probably the most effective, quickest, cheapest and most satisfying way of resolving issues relating to the breakdown of a relationship. Hybrid mediation, a form of family mediation is an innovative, progressive combination of family and civil models of mediation.

What does Hybrid mediation involve?

One more of the following:-

  • The mediator can bring other family professionals and experts into the process with the agreement of the parties, to help deal with complex and difficult situations such as accountants, valuers, independent financial advisers, psychiatrists, independent social workers.
  • The mediator can bring in the parties’ lawyers to help advise and support in complex and difficult cases.
  • Engaging in shuttle mediation where the mediator spends time with each party on their own enabling the opportunity of exploring issues and settlement proposals in greater detail.
  • The party’s lawyers join in part of the process, which is suited to high conflict or complex cases, as it facilitates the inclusion of lawyers directly into the process to advise and guide. With the support of their lawyers, the parties are helped to focus on the issues, explore the options and formulate proposals for settlement.
  • Mediation and dispute resolution can be face-to-face, or online via video conference and so there is no geographical barrier.

The advantages of hybrid mediation

  • Hybrid mediation can be particularly effective when there are certain safeguarding issues and where one party does not feel comfortable being in the same room or same Zoom screen as the other. Also, where there is an imbalance of power between the parties to the mediation or another reason why either person finds it hard to have a voice. Screening and safeguarding remains extremely important.
  • It enables each person to explore options with the mediator in greater detail without feeling they have over-committed.
  • It enables other professionals to use their skills, knowledge and solutions which makes the whole process better informed and more likely to achieve workable, fair settlements.
  • Hybrid mediation can be undertaken before any court proceedings are considered, but also if a parties find themselves already in the court process but want to achieve a settlement outside, away from the stress, delays and costs of litigation.
  • Hybrid mediation is far quicker than the court process and if preparation is undertaken beforehand can take place over the course of a day, or series of pre-booked sessions where parties can choose to have their lawyers present in the process avoiding delays between meetings whilst they take advice, and the lawyers can draw up the consent order straightaway once the proposals are agreed.
  • More cost-effective: being actively involved in the process means parties do not have to repeatedly update their lawyers with the progress of the discussions; it reduces correspondence and the risk of misunderstandings or disagreements between the solicitors.
  • It reduces conflict. Separate meetings mean heavily emotional joint meetings can be avoided thereby enabling parties to focus on the issues and outcomes in a calmer and more rational way.
  • Parties are empowered and supported. Hybrid mediation provides a safe and supported environment for people who might not otherwise be willing to mediate.
  • Increases certainty of outcome. As lawyers can be more directly involved in the process and are on hand to advise with the full knowledge of the issues and direction of discussions, there is less risk that parties may change their minds as can happen when advice is sought by parties in between meetings. The parties choose to what extent their lawyers are involved, less or more.
  • Confidential and private. A major advantage of mediation is that it is private and confidential. So, no one else can access the documents or hear what is being discussed. This is unlike court proceedings, where even in family cases, the press can have access and transparency rules may involve details of the history and issues being made public through national or local press or via social media.

Who are hybrid mediators?

Hybrid mediators are either dual qualified family and civil mediators, or those who have undertaken specialist training with Resolution to enable them to utilise both family and civil mediation techniques and procedures. The training enables a hybrid mediator to be more flexible and innovative with the parties.

What type of cases are suitable for hybrid mediation?

Hybrid mediation can deal with issues between a separating couple relating to finance, children or, indeed, both.  In relation to finances, issues such as the level of maintenance, how assets are distributed on separation, longer term support for the children and how pension assets are treated can all be dealt with within a hybrid mediation setting and often with the benefit of other expert input.

In relation to children’s issues, hybrid mediation can help couples decide where the children will live and how much time they will spend with each of the parents, but also issues such as internal and international relocation or schooling.

How long does Hybrid Mediation take?

Mediations often involve three to five sessions and such sessions normally last one to two hours each.  However, if sessions are properly prepared for and information and document­ation is to hand then it can be possible to set aside a whole day for a mediation to take place, with a view to achieving a settlement at the end of that day.

Going to court should be a last resort to resolve most family disputes. The pandemic has exacerbated the significant delays in the adjudication of many family cases. The courts have made clear that all parties, legal advisers and the judiciary should continue to have express regard to all forms of non-court dispute resolution.

Confidential one to one meetings – what are the benefits?

A party can discuss things with the mediator in a way they might not feel comfortable doing if the other person were also present. The parties can explore options with the mediator without commitment or raising expectations. The exact things that are kept confidential are specific to each party and situation, and normally include the reasoning behind options for settlement or the people’s hopes and concerns. There are things the mediator cannot keep confidential such as financial information (e.g. the existence of an asset), or matters relating to the safeguarding of children.

Financial Neutrals

Separating couples considering divorce are often surprised to learn they have process options other than going to court. In mediation and collaborative options couples find real value in working with a team of professionals including their lawyers, mental health professionals and financial professionals. Financial neutrals are often used successfully in hybrid mediation.

What is a Financial Neutral?

Family finances are an important issue in most divorces. The change from one home to two homes may result in doubling family financial obligations. A financial neutral, who is a member of the mediation and dispute resolution process that assists the parties in gathering, organising, and analysing their financial information to assist in developing creative financial solutions that may not be available in litigation.

If instructed to do so one of the services that a financial neutral can provide is considering the existence of marital assets and sources of income. When a party has a concern about what assets exist or are owned by their spouse, the financial neutral can be asked, with the agreement of the other to conduct an investigation. This can allay concerns and provide certainty.

The financial neutral also educates both parties regarding their financial profile which can be especially helpful to couples in making decisions regarding the division of marital property and future support. In addition, the financial neutral will assist the parties in creating a budget for their future.

What does a Financial Neutral do?

  • Meets individually with each party to begin the information gathering process
  • Assists the parties in organising their financial information
  • Assesses the party’s current budget and projects their future budgets as will be post separation.
  • Educates the parties regarding their family finances.
  • Explains the nature of each investment. Spend more time with one party ensuring they are up to speed with understanding the finances and possibilities.
  • Assists in the division of marital assets and debts
  • Generates options for the division of retirement assets and pensions
  • Values any individually owned or jointly owned businesses
  • Provides tax advice and projections
  • Projects maintenance and child support needs over time
  • Analyse the tax benefits or detriment of decisions and consider alternative ways of achieving outcome that reduce tax to the overall benefit of both.
  • Plans for the funding of educational expenses for children.
  • Any other financial planning needs raised by the parties during the process

Advantages of using a financial neutral

They will have tried and tested software that is able to predict the best predictions of financial outcomes for now, 5- and 10-years’ time and into retirement. The software is interactive and can show different predicted outcomes at the click of a few keys.

Using a financial neutral in the process should eliminate the need for each party hiring their own expert and avoids the ‘battle of the experts’ which plays out in many divorces and greatly increases cost. The financial neutral’s role preserves family resources so that the parties’ assets can be better utilised for the evolving family.

Taking the appropriate advice is essential, because financial matters will form a part of your negotiations; regardless of the divorce or separation process that is selected.

Other Neutrals

Other neutrals include :-

  • Coaches and therapists to assist in people who are suffering emotionally and mentally from the process.
  • Communication experts to help provide understanding as to the effect of conflict upon children but also strategies to ensure communication is effective and safe going forward.
  • Accountant and other tax experts.
  • Valuers of properties, companies and other assets.
  • Pension experts and valuers.
  • Independent social workers who can assist in obtaining children’s views and offering advice as to the best arrangement there can be for children.

It may seem that adding another layer of professional fees can simply increase the costs of separation unnecessarily. A neutral will only be brought in where there is a clear need and benefit and all parties agree. Usually, however, such expert neutrals have shown time and time again that they assist the process to reach conclusions more quickly and fairly.

How do I Arrange Hybrid Mediation?

If you have a solicitor, they can help you find a mediator trained in the hybrid model, or you can self-refer. The resolution website has a list of mediators including those trained in the hybrid model. The mediator will talk you through the steps to getting the process started.

What are the Costs Involved in Hybrid Mediation?

Hybrid mediation is very cost effective. The costs of the mediator in hybrid mediation are generally met equally by the participants but can be in whatever proportions they decide. Each party will be responsible for their own lawyer’s costs. The lawyers’ direct involvement in the process reduces the need for people to liaise with their lawyers between meetings. It reduces the need for inter-solicitor correspondence. Outcome documents can be produced immediately.

David Emmerson

Partner Anthony Gold. Accredited and hybrid trained family mediator.  Collaborative practitioner. Deputy District Judge specialising in complex financial remedy and children cases. Solicitor Advocate.

  • ‘Entirely sensitive to the fact that in family law, the relationships often have to continue when the lawyers leave’ – Legal 500
  • Clients say: “He is a lovely man (incredibly kind and supportive) and very well respected as a lawyer. He is one of the leading lights of Resolution, an organisation committed to handling family break up in as conciliatory was as possible – but he has real steel about him also, so I would totally trust him to protect a client’s interests if the going got rough.”
  • Legal 500 says the ‘skilled’ David Emmerson ‘puts clients at ease’. He ‘is an experienced problem solver: calm and reassuring. He gets to the issues quickly whilst holding the client’s confidence. He is a skilled mediator who is able to combine his extensive legal knowledge with the empathy and impartiality needed to mediate complex cases’.
  • Anthony Gold has a number of family accredited mediators and 3 hybrid trained mediators

Family Mediation Week takes place from 16 January 2023 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at or Jordan Ridley at or by telephone on 020 7940 4000.

Get Free 20 minutes of initial advice

As an introduction to our service, we offer free 20 minutes of initial advice on all aspects of Family Law including:

  • Divorce
  • Finance
  • Pre-nuptial Agreements
  • Post-nuptial Agreements
  • Cohabitation Agreements
  • Property Ownership Agreements/Deeds of Trust
  • Child Arrangements/Parenting Agreements
  • Child Abduction
  • Surrogacy/Parental Orders

Bird Nesting – Co-parenting Trend or Creative Solution?

Bird Nesting – Co-parenting Trend or Creative Solution?

It might be said that a reliable barometer of trends is when they become storylines in TV soaps or dramas. The ITV thriller “Our House”, adapted from a novel of the same name, starring Martin Compston and Tuppence Middleton included “bird nesting” as part of the plot. The couple were living in a large period property in London with two young children, when the wife discovers her husband “in flagrante” with their neighbour. The parties separate and decide to rent a cheap property, so that they can each take it in turns to care for the children in the family home on rotation. The family home is therefore preserved for the children and reflects what happens in the natural world which this concept takes its name from.

Bird Nesting Agreements

In order to have the best chance of success, the couple would ideally be amicable and on good terms. In the drama, the couple are seen with a third party drawing up a “Bird Nesting Agreement”. This is not something that family lawyers are routinely instructed upon and it is much more likely to come up in mediation due to the bespoke nature of this process. Nesting could also become part of a general co-parenting agreement and possibly a recital to a Court Order under the Children Act. However, it is not something a Court will order against an unwilling participant to facilitate child arrangements.

Ground Rules for Bird Nesting

In terms of a second home for the “off-duty” parent, a purchase may only be possible for reasonably well-off parents. There would also then be the issue of how that property is owned and funded (unless purchased out right) as it may be problematic to enter into another mortgage. It might be possible to make adjustments to an existing property to allow the parties to live separately. The alternative would be to live with in-laws, friends or perhaps in a house share. However, that will invariably be more of a short-term solution.

If property is to be shared, it is sensible for there to be ground rules. For example, agreements are likely to be required on the following:

  • Time spent with the children, including holidays and special occasions
  • Parenting “rules” and what boundaries are appropriate to enforce by both parents with the children to maintain consistency
  • Payment of rent, mortgage and bills
  • Purchase of groceries and the sharing of food in the respective households
  • Cleaning of the properties
  • Maintenance of the properties
  • Gardening of the properties
  • Rules about new partners
  • Changing the linen if one bed is being used in the second property
  • Care of pets (including dog walking)
  • Respecting the privacy of the other

It is easy to see how this kind of approach could succeed for the right couple but equally how it might unravel. This is what happens in “Our House” when the wife discovers the house has been sold from under her, which will not be a risk for most co-owners (absent criminal actions). Even if you are not a co-owner of a property, it is possible to register a Matrimonial Home Rights Notice to protect your position. This will mean you are notified is there is an attempted sale of the property.

It is unlikely to work if there is unresolved conflict or insufficient financial resources. In the end, it will come down to the couple and their willingness to make it work. The concept has been around for some time in the USA and data shows that this is increasing in popularity in Australia, the Netherlands and Scandinavian countries. This is likely to be more popular with younger generations as shared care becomes commonplace.

Pros and Cons of bird nesting


  • Preservation of a school catchment area
  • Useful transition period for the family and for the children to get used to their parents being separated
  • Provides stability for children as they can keep the same routine/bedroom/belongings/clothes and means only one set of everything needed
  • Positive for children’s mental health as can keep same friends, school and support system
  • Reduction of commute between homes for children, especially if one parent wishes to move further away
  • No need to pack a bag for the child or for things to be forgotten
  • Preservation of an appreciating asset and avoiding costs of moving/taxes, especially if London based
  • Emphasis on remaining amicable on separation and making it work for all
  • Parents carry more of the emotional burden of divorce than the children
  • Cost effective
  • Buys time and provides breathing space to reflect
  • Suits modern families


  • Difficult for parents to move on and establish a new home/life
  • Inability to achieve financial clean break while assets remain shared
  • Confusing for children and false hope of parental reconciliation
  • Lack of certainty for children and parents
  • Practical difficulties arising from sharing a home
  • Difficulties with moving on with new partners
  • Increased risk of anxiety and depression for the “off-duty” parent living in the more modest property (ie. a one-bedroom flat versus a comfortable family home)
  • Risk of poor mental health for parents
  • Limited freedom for parties and inability to cut ties and communication
  • Not viable in the long term

Bird nesting is a helpful option for separating couples but is only likely to work in the short term as the urge for certainty will be overwhelming for most. If you are thinking of trialling nesting for your family, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at

Fact-Finding Hearings In Private Children Proceedings

A “fact-finding hearing” (FFH) is the first limb of a split hearing, which is a hearing divided into two parts. In the first half, the Court makes findings of facts on issues identified by the parties or the Court and recorded in a Scott Schedule. During the second part, the Court decides the case based on the findings.

When is a fact-finding hearing held?

An FFH is not always necessary. Practice Direction 12J of the Family Procedure Rules 2010 contains detailed guidance on determining whether it is necessary to conduct a fact-finding hearing with respect to allegations of domestic abuse.

The Practice Direction has been tested and clarified in two noteworthy cases, starting with H-N (2021) EWCA Civ 448, which was a Court of Appeal decision.

The latest case on the subject is K and K (2022 EWCA Civ 468) which came before the Court of Appeal on 2 March 2022 before, amongst others, Sir Andrew McFarlane, President of the Family Division.

The basic facts were that the father and mother married in 2005 and separated in August 2017. There were three children, a girl aged 12 and twins (boy and girl) aged 9. The father had regular, unsupervised contact with all three children before difficulties arose. He issued a C100 in 2019 complaining of parental alienation and seeking a child arrangements order. His application was filed in December and he used the urgency of Christmas arrangements to claim an exemption from attending the mediation information and assessment meeting (‘MIAM’).

The mother then filed a C1A form which made several relatively minor allegations against the father and she did not object to unsupervised time with the children. However, when she later spoke to the safeguarding Cafcass officer she alleged rape and, Cafcass advised the Court to consider a fact-finding hearing.

The main focus of K and K was to give general guidance on the correct approach to FFHs whilst endorsing the earlier case of H-N.

Summary of the Court of Appeal’s approach:

  1. Parties will be criticised if they do not attend MIAM appointments.
  2. The FHDRA (first hearing dispute resolution) is meant to be an opportunity to consider dispute resolution as the name suggests.
  3. The Court must ascertain at the earliest opportunity whether domestic abuse (in all its forms) is raised as an issue which is likely to be relevant to the welfare of the child/child arrangements. Fact-finding hearings will only be needed if it is.
  4. The finding that the father raped the mother during the marriage was unsafe and the judge had failed to consider all the evidence in the round.
  5. The judge should have focused on the allegations that most fundamentally affected future child arrangements, namely whether the father was demonstrating coercive and controlling behaviour which affected the children’s welfare.
  6. Whilst some inappropriate behaviour was made out, the generalised allegation of coercive and controlling behaviour was not, particularly financial control.
  7. The appeal was then allowed and the case sent back to a circuit judge for a decision as to whether a fresh FFH hearing was required based on the principles of K and K and H-N.

The protection or welfare of a child

In accordance with H-N, it was emphasised that a fact-finding hearing would not necessarily be required, even where domestic abuse was alleged. It was critical to identify at the earliest possible stage the real issue in the case and how any conduct would impact on the welfare of a child.

The very clear approach was based on FFHs being a major judicial determination which inevitably introduces delay, postpones any interim determination and is likely to be prejudicial to a child’s welfare as well as to the future relationship of the parents.

“All judges hearing children cases will know that there will almost inevitably be emotional fall out following the separation of adults who have been in a close relation­ship. Whilst the Court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the Court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.”

No-Fault Divorce and the DDSA 2020

No-Fault Divorce represents a huge change to divorce law in England and Wales. The Divorce, Dissolution and Separation Act 2020 (DDSA 2020) comes into effect on 6 April 2022.

From that date onwards couples going through divorce will no longer have to make allegations about conduct, adultery or wait until they have been separated for at least two years.

The Divorce, Dissolution and Separation Act

DDSA 2022 simply requires one party (or both on a joint basis) to provide a statement that their relationship has irretrievably broken down, known as “no fault divorce”.

There will be no option to defend the divorce.  There are slight changes in terminology and the (current) petitioner becomes the “applicant”.  A decree nisi is known as a “conditional order” and a decree absolute is known as “a final divorce order”.

In some cases applicants may start a joint application but find they are unable to continue amicably.  In those circumstances the joint applicant wishing to proceed as a sole applicant, must give 14 days notice to the other party of their intention to seek a conditional order to be made into a final order.

How Long Will Divorce Take?

DDSA 2020 sets a timetable so that, once an application has been issued, there will be a minimum 20 week period from the date of the application to the making of a conditional order of divorce.  This gives the parties time to reflect and to resolve arrangements over children and finance.  There is also a minimum six week period after the grant of a conditional order before the final divorce order.

Any application for the cost of a non disputed (standard) divorce will need to be made on a separate form known as D11.

Finally, the online portal will not accept new applications from 4pm on 31 March 2022 until the new system arrives on 6 April 2022.

No-fault divorce FAQs

For further information please contact Kim Beatson: 020 7940 4000.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Divorce Financial Settlements and Damages from Injury and Medical Claims

What part of a compensation award is regarded as part of the marital asset pot available for distribution in the event of divorce or judicial separation?

Under the Matrimonial Causes Act 1973 (MCA) the family courts must have regard to the factors contained in section 25. The court should give primary consideration to the welfare of any minor children of the family. There is then a statutory checklist which requires the court to consider factors such as the needs, obligations and responsibilities of the parties, the length of the marriage, the standard of living enjoyed during the marriage, any physical or mental disabilities, the parties’ contributions and, in exceptional cases only, conduct. No one factor trumps the others and the courts pride themselves on creating a bespoke solution for each case.

This approach can cause significant anxiety to clients particularly as the MCA has developed alongside much needed case law. For instance, in White v White (2001) 1 AC 596, (2000) 2 FLR 981, the court, in considering all the circumstances, was obliged to go through the process of looking at any proposed division of assets against a yardstick of equality. Often the case starts and finishes with needs and complications arise where there is a surplus of assets (should some be ring fenced?) or, at the other end of the scale, not enough assets to go round.

Where a significant asset in a marriage comes from an award for damages, there are surprisingly few reported cases over recent years. The leading case is still Wagstaff v Wagstaff (1992) 1 WLR 320. Per Butler-Sloss LJ:

“The reasons for the availability of the capital in the hands of one spouse, together with the size of the award, are relevant factors in all the circumstances of section 25. But the capital awarded is not sacrosanct nor any part of it secured against the application of the other spouse….

.. any calculations made in respect of the capital of the parties should reflect a substantial discount for the fact that the money was received as damages. In general, the reasons for the availability of the capital by way of damages must temper the extent of, and in some instances may exclude the sharing of, such capital with the other spouse. It is important to stress yet again that each case must be considered on its own facts.”

And in his judgement, Lord Donaldson, MR, said:-

“.. compensation is a financial asset which, like money earned by one spouse by working excessively long hours or in disagreeable circumstances, is (subject to human selfishness) available to the whole family before the breakdown of the marriage and, like any other asset, whether financial or otherwise, has to be taken into account when the court comes to exercise its powers in accordance with section 25 of the Matrimonial Causes Act 1973. In so far as it represents compensation for loss of amenity, as contrasted with pain and suffering, there might be a need to spend it on acquiring a replacement amenity, but this would be financial need within section 25 (2)(b).”

In the case of Wagstaff the parties were married in 1976. W had been married previously and had two children by that marriage. H assumed responsibility for them. In 1981 H suffered serious injuries in a RTA. He became paraplegic. H and W separated in 1983. W retained the family home, a rented council house which she purchased for £10,500, and on separation the value was £24,500. In 1984 W petitioned for judicial separation and in 1985 obtained a decree. In 1988 H received a damages award of £418,000. At the first hearing the deputy district judge (then deputy registrar) took H’s damages into account but made a large discount to W on the basis that H’s capital derived from his PI award. He awarded W £32,000 on a clean break basis. H appealed. By the time of the appeal W had purchased a property with a colleague from work. That property was purchased for £65,000 with a deposit of £25,000 and a mortgage of £40,000. On sale W was to receive the first £30,000 and one half of the balance of the equity.

Her only other capital was £5,000. She had a modest income from her employment working for Norweb. Prior to the accident both H and W had enjoyed a modest lifestyle. H had in the region of £291,000 from his original damages award, having invested some of the award unwisely in a health club (premises alone costing £75,000). A further sum of £63,000 had been invested in that business which was unlikely to yield an income for many years.

The judge allowed H’s appeal. No lump sum award was made to W.

W then appealed seeking a larger award. The Court of Appeal agreed with the deputy registrar and restored his order providing for W to receive £32,000.

The Court of Appeal found that the judge below treated H’s disability and consequential needs as very important but attached too much weight to it and lost sight of W’s needs.

The case of Mundell v Name 1 (2019) 4 WLR 139 primarily involved capacity to marry in circumstances where a vulnerable adult planned to marry and the applicant, the deputy appointed by the Court of Protection, applied for a declaration that the vulnerable adult lacked the relevant capacity to marry.

The matter came before Mostyn J who refused the deputy’s application, stating that the right to form a marriage was a fundamental right and had been for centuries. It is an interesting case because the judge looks at the history of the marriage contract and some of the case law mentioned is over 100 years old.

For the purposes of this article it is worthwhile reflecting on the final part of the judgement in which he says:-

“I would say this, however, if this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim is necessarily going to be extremely limited, given that the entirety of Name 1’s means derive from a personal injury compensation payment which will have been calibrated by reference to his needs. There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards from a financial claim. So, the extent of any claim that were to be made on the breakdown of this marriage, were it to happen, would be limited, in my provisional prognostication at this point, to alleviating serious financial hardship and no more.”

That is a bold judgement and it does not represent my interpretation of the limited published case law.

In Mansfield v Mansfield (2011) EWCA CIV 1056, (2012) 1 FLR 117 H received an award of damages of £500,000 in 1988, before he had even met W. H and W married in 2003 and separated in 2008. There was 18 months’ pre-marital cohabitation so the relationship endured for 6.5 years. Their twin children were four years old at the time of the appeal hearing.

H had invested his damages in two properties. One was specially adapted to his needs (Orchards) and the other was a flat which was let out for investment income. Post separation, H remained in Orchards and W rented accommodation for herself and the children. W had invested £30,000 from the sale of her pre-marital home in Orchards. The sole question for the court was the extent to which the judge should reflect the origin of the family assets in a substantive award.

At the first hearing the district judge awarded W £285,000. In default of payment, Orchards was to be sold and W was to receive 63% of the sale proceeds or £285,000 whichever was the greater. H appealed but the circuit judge dismissed his appeal. H sought to appeal again and was given permission to do so.

At first instance, the district judge who had heard the case had noted that the damages were available for distribution, but she had not noted the guidance from earlier cases; namely that each case should be looked at on its own facts and the sharing rule should be tempered to reflect the needs of the recipient and the special nature of the compensation award.

The Court of Appeal felt the first question was whether the award of £285,000 was sustainable in view of the misdirection in law. In the leading judgement of Thorpe LJ he was reluctant to interfere with the “careful finding” that £285,000 was the minimum that W needed to meet her needs and those of the children and that H’s needs could be met by the remaining £320,000. Thorpe LJ thought that the award was on the high side but concluded “it would be unprincipled for this court to interfere. Having heard none of the oral evidence, such interference would not show proper respect for the function of the trial judge”.

On the second question; namely whether the trial judge was right to refuse the application of the husband for a chargeback, Thorpe LJ found H’s case “overwhelmingly good”.

“The need to give special regard to the origin of the family capital and the special purposes for which it was provided … can be properly reflected in converting the order below into a Mesher order. The rationality of that is obvious. There is a fixed amount of capital within the family. For the immediate future the wife’s need for a substantial share rests upon her function as the primary carer.”

The judge quantified the chargeback at one third of the capital awarded to the wife, the charge to be redeemed when the twins achieved maturity.

The most recent case which involves a compensation award is AZ v BZ (2020) EWFC 28. The case was anonymised to the extent that the parties’ ages were redacted and even the date of separation. The appeal from a district judge came before Vincent J and we are told that the parties were together in 2011, married and there was a final hearing in 2019, so I am assuming this was a medium length relationship.

W had cancer before the marriage, the recurrence of which was not detected by scans. This meant further extensive treatment and a negligence claim against the NHS in 2015, as a result of which W received £550,000.

Part of the compensation award was invested in a property in Spain which was worth £195,000 at the final hearing. The rest was spent on living expenses for H and W, including several family holidays in Spain. During the marriage H was unemployed for two periods as a result of his ill-health.

Shortly after the separation H agreed that £70,000 (the balance in a trust account) should be paid to W. It was not entirely clear what she did with it but £21,000 was loaned to her new partner and £10,000 was spent on a car.

At the time of the hearing before the district judge, H was earning £25,000 per annum and had debts of £15,000 (a car loan) and a small pension. W also had a small private pension and an NHS pension resulting from part-time work.

The district judge made a finding that H’s needs were less than W’s. However, H had contributed £20,000 from his own money in the early part of the marriage and had debts of £21,000 (£15,000 car loan and £6,000 soft loan).

The district judge made an order that the Spanish property would be sold and H would receive £21,000 from the net proceeds of sale.

H appealed and I can only assume that his legal team did so with a heavy heart as this was not a high value case and presumably the legal costs were significant. W was a litigant in person as she had been at first instance but H had legal representation at first instance and on appeal.

The appeal was allowed and the district judge’s order was set aside. In essence, the judge felt the district judge’s order was unfair as the assets were divided 99% to W and 1% to H. He held that the district judge had unreasonably favoured the litigant in person, W, and had made unfounded conclusions about her needs which she had quantified at £180,000. The district judge had unreasonably admitted evidence from the clinical negligence proceedings but this was simply an extract from counsel’s opinion and not an expert opinion or witness statement. It was held that the district judge had written-off H’s housing needs and noted that W had spent £70,000 post-separation. Vincent J held that the district judge had been wrong to reach the conclusion that the case amounted to whether W’s needs outweighed H’s and that W’s needs were just one of the Section 25 factors.

Unsurprisingly, whilst the first instance order was set aside, it was felt that a rehearing would be a huge burden on both parties in terms of delay and costs so the judge substituted his own award and concluded:-

  • The starting point after a marriage of this length was 50:50.
  • The sale of the Spanish property and an equal division would give H and W £97,500 each and it was found that H could obtain a mortgage.
  • W would still be better off than H because her pension fund was larger and she had a car worth £18,500. Her new partner could repay her the loan amounting to £17,000. She had an assured tenancy so her accommodation needs were met.

This amounted to a 60:40 split in W’s favour and took into account the fact that she had received £70,000 following the separation, of which 50% could be said to be H’s entitlement.

Yet again this was a case where it was practically impossible for provision to be made which would meet both parties’ needs.

What principles can be drawn from these cases?

As always it is difficult to draw principles from family cases as many cases are fact-specific, added to which we have the fuzzy discretion of the family courts and the difficulty in predicting outcome. However, in the Section 25 balancing exercise, weight must be given to the party who has suffered a disability/injury even when those injuries are serious, but not to the extent where the court should rule that the needs of one party outweigh the others.

In AZ v BZ, Vincent J made it clear that a large part of compensation payments would generally relate to loss of earnings and this should not be ringfenced as a matrimonial asset. However, the courts still have a statutory duty to give first regard to the welfare of any minor children whilst dependants. A convenient way of dealing with competing needs is to impose a Mesher type order which was the case in Mansfield. As most of you will know, this follows the well-known 1980 case of Mesher v Mesher & Hall but it is essentially a postponement of the exercise of the trust for sale of a home until a named event occurs. That event is normally linked to the dependency of the children so that an order for sale could, for example, be made when the children have ceased full-time education.

Another convenient way of dealing with competing needs and those of the children is to impose an order based on the principles established by schedule 1 of the Children Act 1989 so that the advance of funds from a compensation settlement are made purely to assist with housing a child during minority years. Any monies so advanced are then returned to the party in receipt of the compensation award upon that child attaining the age of 21 or ceasing full-time tertiary education.

Nuptial agreements of all sorts are now given increasing weight by the family courts and I would urge injury and medical claims lawyers to advise on the importance of these for married couples and those who intend to marry to ensure that a client’s compensation payment meets short and long term needs. A carefully crafted nuptial agreement could go a significant way to protecting the settlement by setting out the division of assets in the event of a divorce and making it clear to what extent a compensation settlement is regarded as a marital asset.

For unmarried couples, there is the potential to make financial claims on behalf of a child under Schedule 1 of the Children Act 1989 which can include a lump sum, settlement or provision for property for the benefit of the child, generally meaning that the property settlement reverts to the settlor when the child reaches majority. In those circumstances, a cohabitation agreement may be of assistance so that compensation awards are clearly defined.

There is obviously a careful balance between protecting the client in receipt of a compensation settlement and achieving fairness for any future spouse who may argue for a share of such settlement to provide accommodation for themselves or any children of the family.

Collaborative Practice, Dispute Resolution, and Mediation in 2023

Family practice is changing now more rapidly than it ever has done before. Just imagine before March 2020, when the vast majority of court hearings were face-to-face, where online mediation and collaborative practice was rare, and the Family Mediation Council would not allow mediators to conduct mediation information and assessment meetings by Skype or Zoom, save in the most exceptional circumstances. No-fault divorce has been approved by Parliament and was expected to be available for practical use from April 2022. This may lead to a reduction in the number of people thinking they need advice from a solicitor to divorce. The pandemic has us mainly working from home, almost all court hearings are virtual, and clients are not bothered at all that they Zoom with us in our casual clothes (smart causal of course) and rarely set foot in our office.

Pros and Cons of Technological Developments

Although the pandemic has forced change, it is not necessarily changing for the better. Whereas virtual video hearings work very well in the higher courts where the judges and advocates are used to the technology, searching bundles and preparation for virtual hearings, that is not always the reality for many in family courts at the lower level. Here, already crowded lists can become dysfunctional because not all documents have been updated to the virtual court file, emails from the parties have not been forwarded to the judge and many individual participants struggle with the technology and cannot search through a 200-page bundle on their iPhone. Those utilising the court system directly with the judges have a very different experience to those who have to proceed through the court office email. We have a two-tier system here, those with the technology, know-how and connections and those without.

But family practice was already changing anyway. Advancements in technology have meant that more and more dealings with our clients are systems-based. Comparison websites and TrustPilot are big drivers for attracting clients. What is clear is that the vast majority of clients do not want to embark upon a court process and are not willing to pay for full representation in that court process.

Out of Court Dispute Resolution

A mixture of the delays with the court and a better realisation of how the arbitration process works means that arbitration in both financial and children matters is increasing. More and more barristers and senior and retired judges are being asked to provide early neutral evaluations or private Financial Dispute Resolutions and the feedback from clients of arbitration and Early Neutral Evaluation is very positive. The reality is that arbitrators and evaluators tend to have more time to apply to the process in terms of preparation and delivery than our poor judges do. Mediation continues to be popular and with successful outcomes but is still not utilised as often as it should.

Resolution, the organisation representing family practitioners, has ongoing drive to prepare and train our members in the ever-evolving family practice world. Not just the black letter law training but the skills training that is necessary to attract clients, be a more effective negotiator, a mediator or collaborative practitioner.

Client-Led Resolution Revolution

At the end of the day, it is the clients that are choosing how they want their relationship breakdown to be dealt with. They are far more price savvy, but also want to find ways in which they can resolve issues constructively and fairly but well outside the court process. This client led revolution has meant that there are challenges for Resolution members. We must adapt our practices to meet these client needs and make our services more attractive workable and affordable for clients. MIAMs can now be conducted by Zoom and Skype. Resolution has further developed hybrid mediation which is becoming immensely popular but also practical. Hybrid mediation particularly works where the parties find it difficult to be in the same room together, when they get stuck in negotiations and where the involvement of other expert professionals, including the representing lawyers are actively involved in the process. Hybrid mediation has flown since the pandemic, with separating couples having the benefit of experts in their field being able to help resolve cases directly and effectively. Experts such as therapists, accountants, valuers and IFAs have been used.

Collaborative practice

Collaborative practice came from the USA to the UK in the early 90s and was adopted by Resolution.  The premise with regard to collaborative practice is that both parties commit to resolving issues out of court and in a series of round table meetings with their lawyers present they seek to resolve issues concerning the children and finances. Most or all of the discussion takes place within the meetings and there is little or no correspondence. Collaborative practitioners are specifically trained in the process and use a variety of skills and techniques to help the clients achieve a sensible workable solution. Collaborative practice is attractive because the client not only has the support of someone in the meetings but a lawyer there to advise them too which contrasts with traditional mediation where the lawyers generally are not present.

Resolution governs collaborative practice in the UK and there are presently around 1000 accredited collaborative practitioners. However, there has been concern by a large number of members that collaborative practice is on the decline with difficulty in being able to encourage clients to take up the process and often solicitors for the other party either not accredited or not willing to engage in a collaborative practice. Some collaborative practitioners report they are doing less collaborative work and others none at all. Some fear that collaborative practice is mortally wounded.

Reinvigorating collaborative Practice

Resolution and like-minded practitioners are very keen to reinvigorate collaborative practice. It can be the most satisfying and dynamic way to resolve family issues and personally gives me the most satisfaction of all the processes. The Dispute Resolution Committee and the Collaborative Working Party (CWP) have last year published a revised participation agreement. This is the agreement that governs the parties and their lawyers within the process. The revision of the participation agreement is most welcome. because the existing agreement was quite out of date.  The CWP has worked very hard on this as indeed they have on many other inspirational and proactive marketing ideas. The new participation agreement makes several important changes and in particular:-

  • It allows the flexibility that we now need whilst conducting collaborative practice remotely.
  • It allows for the first time for the collaborative practitioners in a case to instruct either a solicitor or barrister to provide an early neutral evaluation of a series of points or indeed refer issues – including the whole issue to arbitration. Such a course would only take place when the parties were particularly stuck on resolving issues, but it might be for example the amount and duration of maintenance; the extent to which inherited and other non-matrimonial property was required to be used for needs.

We hope these changes prove successful. We would also like to consider other ways in which collaborative practice can be made more attractive to the lawyers and particularly the clients.


The ‘disqualification clause’

One issue that keeps coming up for discussion is whether or not it is appropriate to retain the ‘disqualification clause’. Presently the parties are required not only to make a commitment to resolve issues out of court but to take a step further and they are required to sign a document that obliges them to transfer to new solicitors if they issue court proceedings for anything other than a consent order. The inclusion of the disqualification clause is a rule, but it is one that Resolution can change. The disqualification clause is cited by some practitioners as a reason why collaborative practice is used so little.

Other practitioners are keen to retain the disqualification clause. Several practitioners believe that the disqualification clause is a fundamental pillar of collaborative practice. It is the glue that binds the clients and the lawyers into the process, meaning that it is not only more likely to be successful, but also prevents the easy threat of issuing proceedings if a person does not like the way the discussions are going.

There is also anecdotal evidence that many people are reluctant to admit that they do not include the disqualification clause because they fear that disciplinary action will be taken by Resolution for not including the clause. That may well be a fear, but I can confirm that Resolution has never taken such action, nor do I think they ever would.

Other arguments are that it is sometimes just not possible to assess at the outset of the case whether or not collaborative is appropriate, particularly where disclosure has not been completed and there are concerns that one party may not fully and frankly disclose their financial position and that until disclosure has taken place it is too early to assess whether the case is suitable for collaborative. Also, many clients are recommended to Resolution members because of their reputation and all-around skills, and not necessarily just because they are a collaborative practitioner. That client does not want to lose the lawyer that they have been recommended and will have built up a significant degree of trust if proceedings have to be issued. Perhaps, also the practitioners are new to each other and have not worked together before and maybe there needs to be a bit of feeling the way before deciding that you can work collaboratively together.

Presently the situation is unsatisfactory in the way practitioners who do not include the disqualification clause are viewed by some. Take as an example a Resolution member who is collaboratively trained, embarks upon a collaborative process with a collaboratively trained colleague and a separating couple. Within that process there are initial telephone calls and meetings that establish anchor statements, there are four-way meetings and all commit to the principle that we wish to resolve issues relating to say children and finances without utilising court proceedings. The collaborative practitioners explain to the clients that the collaborative process is a state of mind and an approach to working on a without prejudice basis and collaboratively to resolve issues. They have a series of meetings and issues are resolved and a consent order presented to the court. The clients are happy with the process as are collaborative practitioners who are satisfied that the clients have achieved an acceptable outcome. However, they did not sign a participation agreement with a disqualification clause in it. The way our rules stand at the moment and the current participation agreements and guidance appear to state that they are not acting as collaborative lawyers. They are not engaging in a collaborative process and they cannot claim that this case has been dealt with collaboratively. To call this simply ‘round table’ discussions is not correct because of the process that has been followed and the training that has been applied. Some practitioners seek to call collaborative without the disqualification clause ‘principled round table’. This is worse, not only does it ignore the collaborative focus of the process, but implies that any other process conducted is not principled.

Is an Exclusion clause essential?

At the end of the day, I respect and understand the views of those who believe that having an exclusion clause is a powerful tool and a major commitment from all involved in the process to avoid court. However, even though I may include it in about half the collaborative cases that I do I do not personally think that such a clause is essential. Indeed, my view is that the insertion of the disqualification clause should be optional and that it should be the decision of the clients as to whether it is in or out and those clients make that decision after having the advantages and disadvantages of the clause explained to them and confirmed in writing. That is a personal view and, it is not the view of Resolution’s National Committee or the Dispute Resolution Committee who have not discussed any such change. Having a client-focused approach to the inclusion or not of the disqualification clause may indeed provide a greater level of flexibility and in turn attract more clients to the collaborative process.

Changes in Family Law

Changes are happening across our whole family law market. There are changes in how relationships and families are made and ended. It would be to my mind better for family practitioners and more importantly, the clients if the scope of collaborative practice was widened and Resolution was able to make the training in such processes to be easier, more flexible and adapted to a wider family skills base so that working collaboratively becomes the basis for most cases where it is appropriate to do so.

Whatever, mediation and collaborative practice offer the very best way to resolve the issues of separating couples rather than the very broken, underfunded and demoralised court service.

David Emmerson OBE, collaborative practitioner, accredited and hybrid trained mediator, deputy district judge specialising in finance and children cases.

Chair of Resolution’s Dispute Resolution Committee

Family Mediation Week takes place from 16 January 2023 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at or Jordan Ridley at or by telephone on 020 7940 4000.

Parenting not positioning after parting

We need to change the culture that gives the impression that when parents separate, their difficulties and relationships are legal or formal. The system needs to always emphasise that parents should not be disengaged from the normality of parenting their children as they did before, but now just within two households, not one.

There have been some significant advances that sow the seeds of hope that we are going in the right direction. But this campaign is a long and hard one.

Reframing Support for Families following Parental Separation

Several things hold us back. In the last month, in the media and amongst the parents I work with, I must have heard the phrases ‘custody’ and ‘access’ repeated over a dozen times. I have been working in family law for 30 years, and these terms were abolished before I started. Whilst a cultural shift away from such negative views of family life is never going to be easy, it is encouraging that The Family Law Language Project has recently been launched to try to tackle this.

Over a year ago, a report came out called: What About Me: Reframing Support for Families following Parental Separation. It set out that the way forward for parents should be centred on meeting their needs primarily away from the court, with a multidisciplinary approach and political oversight.

The hope of the President of the Family Division, on the report’s launch night, was not to see so many parents come through the legal system. “We in the court only know parents exist when they’ve issued an application and walk through the court door and often it’s too late then. They’ve got a mindset that they want a resolution based upon court processes, judges and the rest and it’s very difficult then to manage their expectations, to divert them somewhere else.”

Addressing Potential Problems

The report made clear that steering parents away from considering their issues as being legal ones only applied where there were no safeguarding concerns. The families at risk of harm still very much need to have the court as a safety net.

For all other parents, perhaps asking a few tough questions can help address where problems may lie:

  • are your children at the centre of any decisions made about their lives?
  • do your children feel and are loved and cared for by both parents?
  • do your children have contact with both sides of their families, including any siblings who may not live with them, as long as they are safe?
  • do your children have a [proper] childhood, including freedom from the pressures of adult concerns, such as financial worries?

These questions have been adapted from the wording of The Parenting Charter. The charter itself is preceded by a reminder of why it is needed. ‘Conflict is damaging, especially conflict happening between the two people your children love best in the world. Our Parenting Charter sets out what children should be able to expect from their parents if they are separating and what separating parents need to do in the interests of their children. At times of family difficulty, it is easy for adults to forget what it is like to be a child, distracted as they may be by feelings of hurt and fear for the future.’

Mediation and Parenting

Mediation is one way of helping parents come into a space where they can talk just as parents. Even if court proceedings follow, nothing said in mediation can be used against them (unless for safeguarding reasons). That allows parents to look at their roles through the lens of their children’s wellbeing alone, and not as though their issues with one another need be viewed as a form of legal battle.

Caroline Bowden

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at or Jordan Ridley at or by telephone on 020 7940 4000.

Get Free 20 minutes of initial advice

As an introduction to our service, we offer free 20 minutes of initial advice on all aspects of Family Law including:

  • Divorce
  • Finance
  • Pre-nuptial Agreements
  • Post-nuptial Agreements
  • Cohabitation Agreements
  • Property Ownership Agreements/Deeds of Trust
  • Child Arrangements/Parenting Agreements
  • Child Abduction
  • Surrogacy/Parental Orders

Financial Consent Orders in Mediation

One of the criticisms that have historically been levelled at mediation is that it does not provide finality for family finances. That is not true or fair at this point, as mediators can set out a full pathway to a final settlement, especially since they can now provide the first draft of a document that can be turned into Financial Consent Orders – a binding court order.

Back in the summer of 2019, family mediation’s governing body, the Family Mediation Council, (FMC) gave the green light to this change. There has perhaps been less publicity about this evolution in how mediators work than might have been expected.

Financial Consent Orders before 2019

Traditionally mediators only drafted very top-level financial agreements. These basic summaries of intent then had to be reshaped by solicitors into much tighter and more detailed legal wording, as they had to fit the formalities of a draft court order. Sorting out long term financial arrangements, especially relating to property and pension issues, can be very complex. A draft court order, which then has to be approved by a judge, must be as well drafted as if a judge themselves had handed down the same terms after a fully contested hearing.

Before 2019, many solicitors would struggle with the expanding and reshaping process of the ideas formed in mediation. There was often not enough detail from the mediator’s memorandum to make every part of the arrangement watertight. This would mean having to have secondary negotiations of the fine-tuning and the details. As indeed ‘the devil is in the detail’, some arrangements fell apart at this stage. It was frustrating for participants who thought that they had ‘sealed the deal’, to find themselves being presented with choices, with both naturally wanting the option more favourable to them. It is also not hard to see how, if they are already experiencing an element of ‘buyer’s remorse’ about the overall terms, they may decide that even a minor extra concession or two would be a step too far.


Financial Consent Orders since 2019

Over the last few years, since being approved by the FMC, mediators themselves can draw up the first draft of the financial consent order. The mediation participants are taken through the drafting details that are needed during the meetings, based primarily on the judicially approved standard precedents. The initial draft of the consent order, based on these mediated discussions, will then be included in the mediator’s normal memorandum. So the only difference is not one of structure, but of providing a more granular level of detail in practice. There are two advantages to this approach.

Less negotiation and drafting

Firstly, the solicitors who advise the individuals about the ultimate terms of the consent order will need to do much less additional negotiating or drafting of new terms that were not discussed before. This will mean that there will be less threat of undermining the progress contained in the main provisions that were agreed in mediation.


Greater client agency

The second advantage comes about because, previously, the parties could feel more marginalised during the drafting of the secondary terms by their solicitors. The dynamic shifted around with the solicitors being in control of this process, not the clients themselves. These clients can now have greater agency throughout, as the mediator will take them through the more nuanced or technical issues whilst they are there together and facilitate a resolution to any issues that arise from them. It is much better to spot issues that make the proposals unworkable or unpalatable in mediation, than when the mediation process has come to an end.

A better outcome for mediators and clients

Of course, the parties must be allowed to make any amendments to the draft created by the mediator even after it has left the mediation process. It is hoped that these changes will now be minor, rather than a complete reworking or unravelling, as the parties have invested so much in the process of considering the detail already.

So mediation can indeed lead clients through to getting a consent order, providing a full and binding outcome on financial matters. It can be an arrangement that is truly tailored to their individual needs, as the participants have been able to be so involved in all stages, from working out the main ideas to considering the workable legal terms that will make their settlement watertight.

Caroline Bowden

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at or Jordan Ridley at or by telephone on 020 7940 4000.

Get Free 20 minutes of initial advice

As an introduction to our service, we offer free 20 minutes of initial advice on all aspects of Family Law including:

  • Divorce
  • Finance
  • Pre-nuptial Agreements
  • Post-nuptial Agreements
  • Cohabitation Agreements
  • Property Ownership Agreements/Deeds of Trust
  • Child Arrangements/Parenting Agreements
  • Child Abduction
  • Surrogacy/Parental Orders