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“Fines” for getting divorced

Government consultation proposes further changes to divorce process

Divorce, living together and family issues

decorative image for guidance blogThe Government have announced a consultation on proposals to change the divorce process, which includes a bigger emphasis on mediation.

Mediation is a process whereby a trained and qualified mediator will help divorcing couples reach agreement without having to fight through the courts.

It is regarded by the Government as better for children and those involved in divorce than a lengthy court battle. It’s probably also relevant that it’s generally considered quicker and cheaper than court fights. However, it’s not suitable for everyone. It cannot be used in cases where there is domestic violence, for example.

The Government think it should help about 19,000 couples a year reach amicable agreements, but to put that in context, about 26,000 divorce applications were issued between June and September 2022,although that may have been increased by a change in the law which has made it easier to get divorced recently.

Mediation has been around and encouraged by the courts for quite a number of years. But the Government is proposing to encourage it use further with a combination of carrots and sticks.

The proposed carrots would be vouchers to part fund mediation costs and more information about it.

The sticks have been reported as fines. In fact that may be a misreporting because the consultation is not suggesting that couples should be “fined” for not using mediation. Instead it is suggesting that the courts should use cost orders to encourage it’s use so that if, for example, a party unreasonably failed to mediate they could be ordered to pay the other sides costs and some court fees.

The difficulty with this is that cost orders have been available in Family proceedings for a long time but are rarely used. Judges often take the view that if they order one party to pay the other party’s costs in a family case it can cause further acrimony which is often harmful to the children. Furthermore, often neither party is in a financial position to pay a lot of costs without putting the family home or income to look after the children at risk. And finally, in some family cases it’s difficult to identify who has been unreasonable as sometimes it’s both parties and you would end up with a circular order if they were both ordered to pay each other’s costs.

Those issues are not going to go away and the Government consultation recognises that ultimately it’s up to the Judge in each individual case to decide if it’s right that there should be a costs order. That is what the situation is now, so it’s difficult to see in practical terms what would change on the ground if the Government’s proposals were adopted.

What may be of more significance in the proposals is the idea of increasing the court fee. This is the fee that the parties must pay to the court to have their case heard. At the moment the fee does not cover the costs of running the court system so the proposal is to raise it. That may cause there to be arguments about access to Justice if the court system is not available to citizens unless they pay substantial fees. However, it may put people off having court fights, which is what may be intended. Although even after mediation it is usually necessary to have any agreed settlement approved by the court.

So, in summary, further changes will be afoot but the proposal is not to “fine” divorcing couples. What may happen is a system of financial incentives to encourage them to use mediation to resolve disputes.

We have lots of useful free guidance on divorce, such as “What you should know about the divorce process”, “Does the final order in a divorce sever your financial ties?”, or “Failing to discuss a pension could leave you out of pocket”. We have lots of free guidance on this and other legal topics to help keep you informed about how the law might affect you at

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