Why many divorces go to court unnecessarily and how out of court solutions help

Sir Andrew McFarlane, head of the family courts in England and Wales, has raised concerns that many divorcing couples wrongly believe their issues are legal ones that require court intervention. As highlighted in an article by the BBC, one fifth of divorces wrongly end up in court and many of these cases involve relationship matters that could be resolved without the need for court involvement.

Out of court solutions as a better option

As a family lawyer who regularly uses out of court or alternative dispute resolution methods, I strongly agree with Sir Andrew’s message.

The belief that family courts should be the first option is outdated. Out of court solutions, which includes solicitor led negotiation, mediation, collaborative law, early neutral evaluation and arbitration, are often a far more effective and less confrontational route.

Delays, costs and the negative impact on relationships are well-known downsides of the court process. Avoiding these issues by pursuing out of court solutions can be beneficial for all parties involved.

When court is the right choice

There are, of course, situations where court is necessary. Cases involving children where domestic abuse, safeguarding or protection issues arise must be dealt with through the courts.

In these instances, an out of court solution is not a viable option. Additionally, some families may turn to the courts after mediation attempts fail.

Alternative dispute resolution requires cooperation, and when parties are unable to agree on key matters such as asset division or child arrangements, court intervention may become necessary to break the deadlock.

The need for change in the family court system

Sir Andrew has rightly pointed out the need for change in the family court system. The adversarial nature of court proceedings can often exacerbate tensions, creating further conflict and negatively affecting children in both the short and long term.

With the introduction of no-fault divorce, we are starting to see a shift towards more conciliatory approaches to divorce. Many of my clients opted to wait for this change, hoping it would help reduce conflict from the start of the process.

Funding and support for alternative dispute resolution

The Ministry of Justice is also taking steps in the right direction. With a £324m investment over the next three years to improve access to justice in family courts, there is hope that the strain on the system will be eased.

Additionally, the introduction of a £500 mediation voucher for eligible cases involving child disputes is a positive move to encourage out of court solutions and provide support to families.

Consider all options before heading to court

For families going through separation, I strongly encourage exploring all available options before considering court.

Solicitors like myself work closely with clients in the early stages of separation to help them understand how out of court solutions can be a viable solution, guiding them through the process and supporting them towards resolution.

By working together rather than against each other, separating couples can lay a solid foundation for successful co-parenting and minimise the emotional toll of divorce.

Key takeaway

Divorce is difficult for everyone involved – couples, parents, and especially children. The message is clear: don’t make it more difficult than it needs to be.

Explore out of court options and avoid the unnecessary stress and conflict of court wherever possible.