Should you go private? Private Financial Dispute Remedy

Private Financial Dispute Remedy hearings, abbreviated to private FDR or pFDR, are becoming increasingly popular in recent years, replacing their court scheduled in-court FDR.  What is a pFDR, and what benefits could opting to attempt to settle matters privately bring? 

A Private FDR replaces a court timetabled FDR, which is the second main hearing in the court timetable after the parties have already first attended a First Directions Appointment (FDA) together. They can be succinctly summarised by this quote from Sir James Munby, the former President of the Family Division:

‘A private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister or retired judge. No additional qualification is required. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.’

What can you expect at a Private FDR? 

Firstly, the parties should be reminded that a private FDR is a voluntary hearing and are willingly in attendance as they are both invested to reach an agreement at this stage. Before attending, the parties will have mutually selected a judge who will often be a barrister or retired judge themselves and have agreed on a date and venue. Both parties will privately meet with their barrister to discuss the case and ask any question you may have.

Once all parties are ready, both barristers will present submissions of the couples’ respective positions to the judge (you will not have to present evidence yourself). The judge will follow up with further questioning to clarify certain matters in contention. Additionally, offers are essential alongside an agreed schedule of assets if possible. You need to have a very good idea of what the matrimonial assets are, before we can decide on an appropriate settlement. 

Following presentations by both parties’ barristers and any additional evidence, the judge will give an indication as to the likely outcome if the case proceeded to a Final Hearing. This indication is not binding but encourages the parties to negotiate and ultimately, settle. Both parties are encouraged to negotiate throughout the remainder of the day with their barristers frequently meeting, with offers going back and forth, until settlement terms are agreed or a stalemate reached. 

Advantages of a Private FDR?

Specialist Judge

A benefit of a private FDR is that you can select a judge who is best suited to your case and specialises matrimonial law. If the divorce deals with certain business assets, it would give you a chance to select a judge who has years of experience in dealing with financial settlements with business asset elements to it.

Judge time and availability 

Additionally, you can be reassured the judge has sufficient time to consider all the papers in detail. Whereas, at a court-based FDR due to the number of cases and relatively few judges per case, and the extremely overburdened nature of the court system, many judges do not have enough time to read and consider papers in detail before the hearing. We find that some cases are removed from the court list very close to the hearing date, due to judicial unavailability, which is costly both emotionally and financially to the parties.

The private judge will have been booked for the entire day and can be called upon for guidance, further indications or explanations as and when the parties require. They too are completely committed to attempting to resolve the dispute. Court based judges will have multiple hearings on the same day and be time- pressured to conclude matters quickly.  

Those waiting for a hearing date for a court-based FDR may well have to wait multiple months and even then, there is a possibility of last-minute cancellations as mentioned above. Conversely, the private FDR can be agreed and booked at a convenient date for the parties in the near future, not restricted by the tight administrative schedule of the court. 

Relaxed environment 

Unlike busy and overcrowded courts, where there is no guarantee of a private room,  and have the feeling of being back in a classroom with no air conditioning. Private FDRs are often hosted at an agreed neutral venue,  such as a barrister’s chambers that are a lot more comfortable and conducive to achieving constructive and successful negotiations. Each party will be given access to a private room where they can discuss each stage with their barrister, working Wi-Fi facilities and light refreshments and lunch in order to reduce the stress and provide a suitable environment given the stressful nature of attempting to settle. 

What happens if we reach an agreement?

If matters can be resolved by the parties and an agreement is reached at the private FDR, this will then be formalised in writing into a draft consent order and signed by both parties and sent to the court for approval. If the consent order is confirmed by the court then the parties will now apply for final order (decree absolute) to formally dissolve the marriage and implement the terms of the consent order. However, it is worth noting that an agreement may be reached in principle but it is not binding until the draft consent order is sent and stamped by the court.

Relaxed environment 

Unlike busy and overcrowded courts, where there is no guarantee of a private room. Private FDRs are often hosted at an agreed neutral venue,  such as a barrister’s chambers that are more comfortable and conducive to constructive and successful negotiations. Each party will be given access to a private room where they can discuss each stage with their barrister, working Wi-Fi facilities and light refreshments and lunch in order to reduce the stress and provide a suitable environment given the stressful nature of attempting to settle. 

What happens if we reach an agreement?

If matters can be resolved by the parties and an agreement is reached at the private FDR, this will then be formalised in writing into a draft consent order and signed by both parties and sent to the court for approval. If the consent order is confirmed by the court then the parties will now apply for final order (decree absolute) to formally dissolve the marriage and implement the terms of the consent order. However, it is worth noting that an agreement may be reached in principle but it is not binding until the draft consent order is sent and stamped by the court.

What happens if we do not reach an agreement?

Unfortunately, it is not always possible to agree on all matters at a private FDR despite the best efforts from both sides’ legal representatives.  Although this is rare and the vast majority of pFDRs (over 90%) will conclude with a deal being agreed. If an agreement is not forthcoming, the parties must notify the court and the case will return to the Court system for directions and a Final Hearing following which a Judge will make a legally binding order. However, hope should not be lost as it is common for negotiations to carry on between legal parties through correspondence in the weeks following.

If you are considering beginning the divorce process and are apprehensive as to the next steps, or would like further advice on how you can achieve the best financial settlement, then please contact Blanchards Law at 0333 344 6302 or email us at info@blanchardslaw.co.uk.