Advisers have been warned any clients they have currently divorcing could face years "in limbo" because of Covid-19 delays.
Law firm Irwin Mitchell said ongoing delays could leave families without a resolution for years to come, which is why it was championing ‘friendly’ alternatives which bypass court delays.
Her Majesty's Courts and Tribunals Service has estimated that “even with an increase in the number of sitting days, it may be another three years before the private law backlog returns to the pre-Covid-19 levels”.
At the end of 2020, backlogs in private law had increased by 18 per cent since before the March lockdown. Those cases being heard were being concluded over an average of 29 weeks.
Private disputes involving children settled in court are not expected to recover from backlogs until 2023.
“While people double-vaccinated no longer have to self-isolate, the damage has already been done,” said Ros Bever, head of family law at Irwin Mitchell.
“The knock-on effect means cases have been waiting for their time in court for months on end, only to have them cancelled at the last minute.
“Parents and their children have been left waiting months or even years to find out custody arrangements, while some financial cases are in complete limbo.”
He concluded: “We need to think about other solutions if we’re to help our clients to resolve their issues as quickly and smoothly as possible.”
Irwin Mitchell conducted a survey which found more than a third (35 per cent) of divorcees are still not being presented with alternative dispute resolution as an option, despite the fact it could seriously alleviate the UK’s overwhelmed court system.
This could include mediation for divorce or child contact arrangements. The former arrangement is where a couple meets with a trained, neutral mediator to agree on a financial settlement and childcare arrangements.
The latter allows a couple to dictate where and when the non-resident parent will see and have contact with their child, without the need to go to court.
Lisa Conway-Hughes, an adviser at Westminster Management, agreed avoiding the courts was "always ideal".
For her, the focus with clients is always about "getting a really good understanding of what the financial agreement actually means to them for the rest of their life". She continued: "Cash flow modelling is such an important tool and can offer perspective over what you are disagreeing on."
Emma Collins, a partner at law firm Weightmans, said there "has been to steer clients more towards various forms of alternative dispute resolution to take control over the process and reduce delay".
She continued: "For example arbitration – effectively a private court where the clients can choose their ‘judge’ and fix a timetable around their specific case needs and availability rather than uncertain court availability."
Increasingly, her firm is also encouraging private financial dispute resolutions, where a couple negotiate a settlement with the input of a privately appointed ‘judge’ .
"These can be very effective in achieving an outcome usually still within the court process but removing the financial dispute resolution element from the court system as to reduce cost and delay inefficiencies."
She added: "Mediation has also seen an increase in use as a way to resolve matters by agreement outside court proceedings altogether. Many clients find it a more accessible option now increasingly it can take place virtually and some prefer the fact that use of platforms such as Zoom or Teams means they’re not required to be present in the same room as their former partner ."
Couples seeking divorce have faced numerous delays in recent years, and not just ones brought on by Covid-19.
In June, the government confirmed those seeking a no fault divorce under new legislation will now have to wait until 2022.
The implementation of the Divorce, Dissolution and Separation Act is therefore set to come into force on April 6, 2022, not in October as the government had originally planned.
The no-fault law will eventually require divorcing couples to provide a statement of irretrievable breakdown, replacing the need for evidence of conduct, such as adultery or unreasonable behaviour, or proof of separation - which can be difficult to evidence.
The government has dubbed it “the biggest reform of divorce law in 50 years”. The idea is to avoid couples having to blame each other for the marriage breakdown.
The survey Irwin Mitchell conducted, which polled 1,000 divorcees, showed three-quarters (77 per cent) found their divorce proceedings stressful as disputes continue to be left unresolved for months on end and as solicitor fees spiral.
ruby.hinchliffe@ft.com
