The end of any relationship, whether it be a marriage or cohabitation, can be a time for intense reflection.
Those involved may have been together for some time and even raised children, so the unpicking of family ties in order to start a newly single life is sometimes difficult.
That is particularly true for people who find it hard not just to come to terms with the practical changes – a new home, a new routine, even new friends – but the emotional consequences too.
However, it is important that any upset does not overtake or complicate the administrative process of divorce.
If it does, then couples can sadly find themselves at loggerheads for years, instead of moving forward.
As well as costly, time-consuming litigation, the failure to resolve matters can damage personal relationships and even lead to sanction from the family courts.
It is a theme which I’ve found myself considering having read recent news coverage of proceedings arising from the breakdown of a marriage 16 years ago (https://www.thetimes.com/article/2e17e2a6-e60c-410d-a022-deaecd8909d4?shareToken=5808f17a5decf4be0117cf24efd51575).
According to Mr Justice Cobb, who presided over the latest hearing to have followed the divorce of barrister Jason Galbraith-Marten and his artist ex-wife, Catherine de Renée, the case had a “depressing background” (https://www.casemine.com/judgement/uk/67fea6100696d8232c534bc4).
Even though a financial settlement had already been reached in Australia, Ms De Renée later sought to improve her share of the couple’s assets in this country, complaining that the original award was insufficient.
Family courts in England and Wales can intervene in such circumstances under Part III of the Matrimonial and Family Proceedings Act 1984 (https://www.legislation.gov.uk/ukpga/1984/42/part/III).
Certain criteria must be met, though, relating to the connection which either of the individuals involved have with this country, including their being “habitually resident” here for at least a year before either the divorce or application for a fresh consideration of whether there should be a topping-up of the previous financial provision.
In Ms De Renée’s case, several such applications were made and rejected over more than a decade, the last of which was described by Mr Justice Cobb himself as amounting to a “further abuse of process” and “utterly hopeless”.
Her former husband claimed, however, that she had still “shown little sign of letting up in her unwavering ambition to re-open the long-since-concluded matrimonial litigation”, which has included a string of other unsuccessful applications in recent years.
Whilst fairness is the central premise of the family justice system, it does not have an inexhaustible supply of patience.
That is particularly true at a time when, as my colleague Emma Hubbard has outlined in another article on this ‘blog, the National Audit Office (NAO) has noted that family courts are “massively overstretched and dangerously under-resourced” (https://hallbrown.co.uk/blogs/nao-more-inconsistency-children-and-the-family-courts/).
Mr Justice Cobb, therefore, chose to make an Extended Civil Restraint Order, preventing Ms De Renée from making any further “vexatious” applications for the next two years without the approval of the court.
The order is made possible under what are known as Practice Directions and are permissible in situations “where a party has persistently made applications which are totally without merit” (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_04b).
Similar steps are also possible in relation to cases involving children under the Children Act 1989 (https://www.legislation.gov.uk/ukpga/1989/41/section/91).
Although not very common, Civil Restraint Orders are not entirely unusual. I have found myself dealing recently with one dispute in which just such an order was put in place for the next five years.
One aspect of the order made by Mr Justice Cobb was “to conserve court resources”.
It is one reason why divorces can already take a long time to conclude.
Figures published by the Ministry of Justice (MoJ) show that divorces concluded in the last three months of 2024 had taken 70 weeks on average from an initial application to a final order being granted (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2024/family-court-statistics-quarterly-october-to-december-2024).
That same tranche of data also revealed that just over one-quarter of all applications for financial remedy were contested.
It underlines that although legislation came into force three years ago eradicating the need to explain how a spouse’s conduct had led to the collapse of a marriage – replacing that regime with one of ‘no-fault’ divorce (https://www.legislation.gov.uk/ukpga/2020/11/contents) – couples still argue over how best to divide their marital assets.
That is one reason why the Government asked the Law Commission to produce a report exploring whether the system of how the financial aspects of divorce should be reformed (https://lawcom.gov.uk/news/law-commission-publishes-scoping-report-on-financial-remedies-on-divorce/).
In my experience, the divorces which are finalised most speedily and without rancour are those in which the people involved can set aside any natural sense of disappointment or loss and adopt a pragmatic approach to a financial settlement.
That’s not to say that there isn’t still occasionally some disagreement. Nevertheless, instead of wanting to air their grievances in court, the participants take advantage of non-court dispute resolution (NCDR) methods to come to a compromise.
These methods – including mediation, arbitration and private financial dispute resolution (FDR) – have been increasingly embraced by ministers, judges and family lawyers. Hall Brown is one of the few firms to boast its own Head of Mediation, Sarah Manning.
They offer the opportunity to pursue a different, faster and less acrimonious route to settlement which is also undoubtedly a more welcome scenario than 16 years of litigation.
