Alternatives to court

• 15 October 2024

We will help you to find the best process (or blend of processes) to sort out matters arising from your divorce or separation away from court whether in relation to money, children or other issues.

Our breadth of experience in alternatives to court enables us to recommend which is the most suitable for your circumstances. From processes in which you have a facilitated conversation to get to agreement (mediation and collaborative practice), to those in which a third party gives a non-binding steer (early neutral evaluation/private financial dispute resolution) or makes a determined decision (arbitration), we are here to guide you through your options. We take a fresh, forward-thinking approach to enable you to move forward in a way that prioritises your and your family’s best interests.

Since April 2024 rules by the Family Court mean that Non-Court Dispute Resolution (NCDR) must be is considered before and throughout the court process. A sufficient explanation is needed as to why NCDR is not appropriate, if a case is to go to court. We will help you navigate this requirement ensuring all avenues are explored and the most suitable process is applied to your family’s circumstances, whether it be NCDR or going to court.

Mediation

Mediation is an increasingly popular option for couples navigating separation or divorce and is actively encouraged by the courts. It is a voluntary process, in which a couple will come together with a mediator to try to reach their own agreement about money, children and other related issues.

We can act as a mediator to a separating couple or support you as an individual by giving legal advice within a mediation process. Head of Family, Jo Edwards is a trained mediator and one of only a handful of lawyers in London qualified to consult with children in mediation.

Whether in person or remotely, our experienced mediators prioritise creating a harmonious space to help facilitate a productive discussion. Whilst they can’t give advice, they will guide you in the right direction so that you can come to your own agreement. All mediation sessions are ‘confidential and privileged’, meaning that what you discuss can’t be repeated at court or between solicitors unless there is an agreement.

There are many different forms that mediation can take and we will discuss the options with you. They can take place remotely or with everyone in the same room or if more appropriate you will sit in separate rooms and the mediator will ‘shuttle’. The process can be paused at key stages to let you take legal advice.

The mediation processes typically takes 3-5 sessions, of around 90 minutes each. Mediation can be the sole process used to resolve your separation or divorce or it can used as part of a wider set of options, even during court proceedings. It is never too late to mediate and we have the experience to guide you on how to make best use of the mediation process.

Mediators

Joanne Edwards

Partner, Head of Family

Mediation Information and Assessment Meetings (MIAMs)

To bring a Court application in relation to children or financial matters you must first attend a Mediation Information and Assessment Meeting (MIAM) with an accredited mediator. The different forms of Non-Court Dispute Resolution (NCDR) available to you will be explained and your suitability for NCDR will be assessed. Since April 2024, MIAMs now cover all forms of NCDR, and the exemptions have been further narrowed. We’re here to guide you through these updates and ensure you understand your options.

Collaborative Practice

Collaborative practice offers couples looking to resolve financial and child-related matters outside of court, with the support of their lawyers. The separating couple, along with their solicitors, talk about things in a confidential setting in a series of meetings designed to reach an agreement that benefits the whole family. Our family team has four collaboratively trained practitioners, Jo Edwards, Simon Blain, Amanda Sandys and Christine Abbotts.

Our aim is to create a safe space for open and honest, lawyer-supported conversations where legal advice is shared. As a result success rates are high. If an agreement can’t be reached, collaboratively trained barristers can be instructed to provide advice or an indication.

We want you to feel comfortable and supported throughout the process. Often, non-legal professionals such as financial advisors, accountants and family therapists are brought in to assist to help provide a holistic agreement.

We recommend collaborative practice where there is sufficient cooperation and trust between the separating couple, but the situation has complexities which make it helpful to have legal advice in the room.

Collaborative Practitioners

Joanne Edwards

Partner, Head of Family

Simon Blain

Partner, Family

Amanda Sandys

Counsel, Family

Christine Abbotts

Senior Associate, Family

Solicitor negotiations

At Forsters, we have extensive experience in assisting clients to reach agreements through negotiation. Whether it’s through an exchange of correspondence, roundtable meetings, or simply picking up the phone, we are here to help you find a resolution.

A roundtable meeting involves you, your partner, and your advisers sitting together to reach an agreement on financial or children matters. This approach can be particularly useful in breaking deadlocks and moving negotiations forward. Many of our clients appreciate having a solicitor present to support and advise them, while still being able to craft a bespoke outcome that works for both parties.

Regardless of differing views between you and your partner, lawyer negotiations can be incredibly effective. We help identify and narrow down the issues, encouraging both parties to present their best positions—often more constructively than in a court setting.

In many instances, we are able to assist clients in reaching an agreement through negotiation. This may take place by an exchange of correspondence, one or more roundtable meetings, or simply by picking up the phone.

Even if you and your ex seem far apart in viewpoints, our skilful lawyer negotiations can be incredibly effective. We can help identify and narrow down the issues, encouraging both parties to present their best positions—often more constructively than in a court setting.

An effective option is to hold a roundtable meeting, this involves you and your ex and your advisers sitting round a table to try and reach an agreement regarding your financial or children matters. It can be useful to break a deadlock in negotiations. As your solicitor we will support you during the roundtable to negotiate a bespoke outcome that is agreeable to you both. .

Solicitor negotiations can continue alongside other processes. For example, as part of the court process, couples are expected to stay engaged in negotiations and to try and narrow the issues that the court is required to determine. In our experience it can be particularly effective for separating couples to agree the details of a settlement where there is already broad agreement.

Early Neutral Evaluation (ENE)

We understand that resolving disputes efficiently and privately are key priorities for many separating couples. An Early Neutral Evaluation (ENE) or Private Financial Dispute Resolution (private FDR) involves the separating couple privately hiring a judge for a day to provide an evaluation of the likely outcome if the case was litigated. Our clients often reach quick agreement, keeping affairs completely private and saving all the cost and delay associated with litigating.

This indication does not bind the couple to an outcome, but encourages them to resolve their issues by agreement. In our experience, having early insight into how a judge may determine things if matters went all the way to final hearing, means that couples often reach quick agreement which then saves all the cost and delay associated with litigating.

We work closely with the most able private FDR judges and are able to advise as to who will be most suitable in your case. We will ensure that all the necessary information is provided to the judge, that you understand the process and feel supported throughout.

Arbitration

We understand that resolving disputes can be challenging, especially when it involves sensitive matters such as finances or children. Arbitration is a practical and effective alternative to court proceedings which offers couples the opportunity to appoint a private judge who will make a decision that is final and binding, for financial matters and most disputes concerning children.

At Forsters we can explain the process, help you choose your arbitrator, and guide you through the arbitration proceedings.

Arbitration has a number of advantages over the court process:

Flexibility – a couple can agree the scope of the issues to be arbitrated, giving them control over the process. A couple could decide to resolve their entire case through arbitration, or may wish to limit the arbitration to one discrete issue. This flexibility can save time and money

Choice – a couple chooses their arbitrator and so can be reassured that a suitably qualified specialist will handle their case from start to finish

Speed – the court system is, sadly, very congested. Arbitration is likely to be considerably faster than court and so the stress and cost of an unresolved dispute can be brought to an end sooner

Confidentiality – arbitration is confidential whereas court proceedings carry a risk that private family matters may become public knowledge and reported in the press

Once the proceedings are concluded, we will make the arbitrator’s decision binding by turning it into a court order. This can be done quickly as a “fast-track” procedure exists.

News and views

23 January 2025

Shaping the future of private client – Rosie Schumm co-chairing Private Client Global Strategy Forum 2025

6 January 2025

Sophie Wilson on parental alienation – The Family Justice Council’s guidance

25 November 2024

Forsters’ Family Partner Simon Blain wins Family Law Commentator of the Year award at the LexisNexis Family Law Awards.

17 June 2024

Continued recognition for Forsters family lawyers in Spear’s Family Lawyers Index 2024

26 February 2024

Rosie Schumm to speak at Private Client Forum Americas 2024

29 January 2024

Jo Edwards appears on BBC Breakfast to discuss the government’s announcement of an early legal advice pilot for separating parents

Children matters

• 15 October 2024

Children can thrive following the separation or divorce of their parents and can be protected from the perceived impact of the separation process. With our guidance, we can help you secure an arrangement that is in the best interest of your children and your family’s personal circumstances.

During the process, emotions will likely run high and there can be considerable differences in opinion between parents on the way forward. We will talk you through your options and the different processes available to you, this includes reaching an agreement out of court if possible, through processes including mediation or collaborative law. When necessary, we will protect children through the court process.

Taking advice early is key. With extensive experience in anticipating issues that might arise and resolving all matters relating to children, we provide sensitive, strategic, and pragmatic advice to ensure the best outcome for your family. This includes:

• Parenting arrangements – working out who your child will live with and how much time your child will spend with each parent
• Relocation – working out where your child will live, particularly if one parent wishes to relocate to another part of the UK or abroad
• Specific issues – such as working out what school your child will attend or decisions relating to medical treatment
• Welfare considerations – including determining whether protective measures need to be put in place to ensure your child’s safety at home or elsewhere.
• Abduction – resolving matters involving allegations that a parent has wrongfully retained a child here or abroad
• Finances – agreeing the amount and structure of the financial provision for your child

Our connections with parenting and child specialists including, independent social workers, therapists and guardians, will enable your family to receive the holistic support you need. Circumstances do also change, and we can help update existing arrangements to fit your evolving situation.

Cohabitation and living together

• 15 October 2024

Living together as a couple or as a family with children, without marrying, is an increasingly popular set-up across the UK. For those in long-term relationships, it is important to understand your cohabitation rights, as you do not have the same legal protections as married couples if you separate. We are here to provide clarity on your situation and help protect your interests at every stage of your relationship.

There is a common misconception that a ‘common law spouse’ exists to protect unmarried couples in England. This is not the case. English law does not automatically grant rights to unmarried cohabitants upon separation, unlike in some other countries. The claims you can make are much more limited than those for married couples.

Whether you are considering moving in together, starting a family or separating, there will be ways to help safeguard your current and future interests. We can advise you on:

• Cohabitation Agreements – this is a legal document that outlines the rights and responsibilities of each partner during cohabitation and what happens if the relationship were to breaks down. It covers aspects such as property ownership, financial contributions, and arrangements for children. Our experienced family lawyers can assist in drafting a comprehensive agreement tailored to your unique circumstances
• Financial claims on separation – advising on the limited claims available including property claims made by you or a partner
• Claims relating to children – advising on child arrangements, securing housing and financial support for child maintenance

It is also important to recognise that the lack of rights for cohabiting couples also applies if one of you were to pass away, therefore making a will is also a crucial way to protect you and your family. We can work with our Private Client team to incorporate this into your planning.

We are here to guide you through the complexities of the law, ensuring you and your loved ones are protected and supported.

Domestic abuse

• 15 October 2024

Domestic abuse is prevalent across society. Our understanding of the nature and scope of domestic abuse is constantly evolving. The family court is increasingly aware of the role played by coercive control within relationship, and of economic abuse. Sadly, it is also sometimes the case that false allegations of abuse are made as one party seeks an advantage in litigation.

We always screen for domestic abuse, and we tailor our advice to make sure that suitable safeguards are put in place. We will carefully consider whether certain types of dispute resolution are appropriate and will discuss the pros and cons with you. In appropriate cases we will use the family court’s extensive powers to obtain protective injunctions. We will liaise as appropriate with the police and social services and have access to a wide range of specialist agencies who can provide support and counselling.

Protecting family wealth

• 15 October 2024

We understand that family law matters can extend beyond the immediate couple involved. If you have a vested interest in the assets relating to a relationship, we can help protect your rights and interests.

Assets that form part of divorce proceedings are not always legally owned solely by the individuals separating. This could include assets held by a trust, joint property or business interests; or money may have been loaned or gifted to the couple, for instance, when the “bank of mum and dad” helps with purchasing a home. In such situations, it is right that the third party has a voice in the divorce proceedings to ensure that their interest in the asset is protected. We have extensive expertise in acting for (and also against) third parties in divorce proceedings, including in the High Court and Court of Appeal.

We aim to protect third-party interests early to avoid significant costs. However, in some cases, third parties need to be formally included in existing family proceedings. This inclusion grants you the right to participate and ensures you are subject to any court orders. If there is a dispute over whether an asset belongs to the divorcing couple or a third party, the Court may order a ‘Preliminary Issue’ hearing to determine the asset’s ownership. We are here to guide you through this process, ensuring your interests are safeguarded.

We can also help protect your family interests at the point of marriage or civil partnership, by advising on the use of nuptial agreements and updating your wider succession and estate plans via our specialist private client team.

Finances on divorce or separation

• 15 October 2024

Having clarity on your financial situation and how your assets will be shared following a relationship breakdown will likely be a key priority for you. Protecting the future of your finances will ensure you have the stability and security to move forwards with confidence. Our experienced Family and divorce team are here to help you achieve this.

We will guide you through the financial implications of your separation or divorce and provide a clear explanation of the likely outcomes and routes available to reaching a financial settlement. We will be assertive and vigorous to ensure we achieve the best long-term outcome for you whilst always remaining pragmatic and supportive of your best interests. Where there are immediate financial concerns, we will act swiftly to resolve them.

Complex Financial Matters

When there are significant and complex assets are at stake, it is essential to seek specialist advice. Our team have the expertise and experience to handle issues including:

• Business interests – evaluating and dividing business assets, ensuring fair valuation and consideration of future income potential
• International assets – collaborating with our network of overseas professional advisers to resolve cross-border issues
• Property portfolios – managing the division of multiple properties, including investment properties and overseas real estate
• Trusts and inheritance – navigating the implications of trusts and inherited assets, ensuring they are appropriately considered in settlements
• Pensions and retirement funds – advising on the division of pensions, including complex schemes and international pensions
• Tax implications – providing guidance on the tax consequences of asset division, including capital gains tax and inheritance tax planning
• Hidden assets – investigating and uncovering hidden or undisclosed assets to ensure a fair settlement

We can draw upon specialists within Forsters in private wealth, corporate, real estate and dispute resolution, as well as our wider network of financial professionals including wealth managers and financial planners to provide a holistic view of your finances and a clear way forwards.

Pre and post-nuptial agreements

• 15 October 2024

Engagements and wedding planning are joyful and heart-warming experiences and talk of a pre-nup can feel at odds with this special time. But entering into a marriage or civil partnership, with a pre-nup can provide you with the certainty and financial transparency, that will benefit you both for the long term. With our guidance we can incorporate your nuptial agreement seamlessly into the run up to your wedding. The open conversations that take place as part of the process can help you to build trust as a couple.

Nuptial agreements, encompassing both pre-nuptial (pre-nup) and post-nuptial (post-nup) agreements, are designed to outline the financial arrangements in the event of a divorce. The agreements we prepare are bespoke and seek to protect any assets that one or both parties bring to the marriage, or that may be inherited during the marriage.

Nuptial agreements provide certainty and security, giving you more control and allowing you to make your own arrangements for the future.

At Forsters, we are committed to helping you protect your future. Our experienced team will work closely with you to create a nuptial agreement that meets your needs and provides peace of mind.

Why should I have a nuptial agreement?

Pre-nups

• Wealth disparity – if there is an actual or expected significant disparity in wealth between you and your spouse, a pre-nup can help protect your assets
• Family assets – protect assets, perhaps in a trust or a property, that have been in your family for generations or business interests that you wish to protect against divorce
• Previous marriages – if it is not a first marriage for one or both of you and you wish to preserve assets for children of your previous marriage.
• Immigration – if you are getting married earlier than you otherwise might have done for immigration/visa reasons, a pre-nup can provide financial clarity

Post-nups

• Missed pre-nup opportunity – sometimes people miss the boat to enter a pre-nup before they marry, but want to have an agreement for one of the reasons set out above; it is never too late
• Unexpected wealth – protect unexpected wealth, such as a lifetime gift from a parent, with the security of a post nuptial agreement.
• International relocation – For international couples relocating to England, a post-nup can provide certainty in the event of divorce, especially with London being regarded as a generous divorce jurisdiction
• Tax considerations – sometimes it makes sense to hold your assets differently for tax reasons during marriage, other than 50/50; A post-nup can decide how the assets would be divided differently on divorce

International considerations

International issues should be considered when completing a nuptial agreement, especially if either you or your spouse were born, have assets, or now live, outside of England and Wales, or plan to spend significant time overseas. Likewise, if you had a pre-nup or post-nup in another country, it is possible that its terms would not be respected by the courts here in England. It is advisable, ideally before relocating to England, to take specialist advice to understand whether an English agreement is needed. We frequently collaborate with specialist lawyers in other jurisdictions to ensure that such agreements are given maximum weight.