A new Pre-application Protocol for financial remedy proceedings was published last week, providing very useful and insightful judicial guidance on the changes to the Family Procedure Rules which relate to NCDR.

There can now be no doubt that Judges will expect compliance with the NCDR requirements, and litigants who attend the Family Court without having tried NCDR may well face the prospect of a Judge refusing to hear their case and/or making a costs order against them.

As stated in the preamble: ‘The Protocol sets out the key steps the court will expect parties to take in relation to non-court dispute resolution (NCDR), i.e. resolving a dispute other than through the court process, before starting court proceedings. The Protocol also underlines the duty to make full and honest disclosure… Everyone is required to comply with the terms of the Protocol, even if they have not had professional advice from a legal representative.’

 Some key points to flag:

• The courts recognise that NCDR is not incompatible with a robust disclosure process. Such disclosure should be done via the Form E (which is our process here at The Divorce Surgery)
• Couples obtaining joint legal advice via a “one couple, one lawyer” scheme can be ‘good evidence of a constructive attempt to obtain advice and avoid unnecessary proceedings’. Six years ago, we were the first regulated One Couple One Lawyer service and it is fantastic to see how the sector has grown since then, and the judicial endorsement of its merits here.
• A focus is placed, not only on efficiency and the overriding objective, but also on the emotional toll on the couples involved:
  • ‘The procedures which it is appropriate to follow 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 is possible in the circumstances.’
• An important spotlight is also placed on costs, demonstrating the concern judges have had for many years now on escalating and disproportionate legal fees:
  • ‘It is not acceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute. The principle of proportionality must therefore always be borne in mind. Proportionality is a factor the court will take into account when considering whether, and if so to what extent, to make an order for one party to pay the costs of the other party.’

 There is no substitute for reading the full text, and in fact this is now required reading for all separating couples and their advisors. The link is here: PRACTICE DIRECTION 9A – APPLICATION FOR A FINANCIAL REMEDY (justice.gov.uk)