Transparency in family: openness in the Family Court
Simon Donald examines how transparency can help in family law
Transparency is increasing in the family court system, with family courts beginning to recognise the need for openness in dealing with what are often complex or sensitive matters. Family judges at all levels of the family court system have expressed increasing judicial concern on the issue of costs in financial disputes when parties conduct intense and combative litigation focused more on pursuing dispute rather than seeking a resolution. With those concerns over the risk of increasing and disproportionate costs being incurred in contested proceedings, the good news is this can prove avoidable with the benefit of pragmatic, practical and solution-focused legal advice.
Radmacher v Granatino  UKSC 42
An effective tool for achieving this aim is for couples to enter into a prenuptial agreement. In the case of Radmacher v Granatino  UKSC 42, the couple had signed a pre-nuptial agreement prior to their marriage in 1988. When the marriage broke down in 2006, ex-husband Granatino applied for financial relief of £5m. Though initially granted, his ex-wife Radmancher successfully appealed to the Court of Appeal, who took the agreement into consideration, stating that it should have always been given ‘decisive weight.’ Since then, prenuptial and postnuptial agreements have become an accepted feature of couples’ financial planning. This can provide spouses with certainty and avoid the possibility of costly litigation on divorce and the acrimony that can potentially ensue. A well-considered and professionally prepared prenuptial or post-nuptial agreement will be highly persuasive, albeit not legally binding, on a family judge’s decision-making.
It is important to remember that even if a couple have not entered into a prenuptial agreement, this does not mean they are destined to find themselves locked in adversarial court proceedings. Family law solicitors have a range of practical and procedural tools available to help divorcing couples find a solution outside of the court process. In a period where the family court system is struggling under the burden of increasing demand and reducing resources, family law advisers can be instrumental in providing separating spouses with objective and practical advice focused entirely on reaching a negotiated ‘out of court’ settlement. The costs of doing so with the help of professional advice (often calling on the input of financial advisers and wealth managers, property experts and pensions advisers) are markedly less than conducting contested proceedings.
The way ahead
Even when there is a dispute that cannot be resolved through solicitor-led negotiations, family solicitors can call on specific processes that can avoid contested proceedings. Mediation with a trained family mediator can unlock the door to the parties reaching a settlement that they are both happy with through compromise and discussion in a supportive and non-confrontational environment. This agreement can be at a cost which is far less than litigation.
When mediation and negotiation has proven unsuccessful, court proceedings can may still be avoided. Through the use of private Financial Dispute Resolution meetings, family solicitors can assist couples in seeking an objective neutral assessment of the likely outcome of any dispute as if it were being litigated in the family court. This can be instrumental in helping couples in reaching a successful compromise guided by advice from their family solicitor.
If it comes to a point where all of these routes have been exhausted, the use of private arbitration can enable divorcing spouses to conduct their dispute in private, safe in the knowledge that any outcome will be binding and achieve a resolution in a timeframe that simply could not be achieved through the family courts.
The President of the Family Division, Sir Andrew MacFarlane, in his speech to the Worcestershire High Sheriff’s Lecture in October 2022 succinctly pointed to the fact that just because couples fall out with each other, this does not mean they need to fall into court. At Cripps, our family solicitors pride themselves in having the knowledge, skills, pragmatism and resources to help separating and divorcing couples in exploring all the options available to them in an effort to find a mutually acceptable outcome for both parties. This can avoid the emotional and financial costs that some may perceive as inherent or inevitable on the breakdown of a relationship.
Simon Donald is partner in the family team at Cripps: cripps.co.uk