When a relationship breaks down there are different ways of resolving family law issues such as finances, property and issues relating to your children. This guide is for survivors of domestic abuse. If you have not experienced domestic abuse you may still find some of information in the guide helpful to understand the rules and options for resolving issues through non-court dispute resolution.
Domestic abuse can include, but is not limited to, the following:
- Coercive control
- Psychological or emotional abuse
- Physical abuse
- Sexual abuse
- Financial or economic abuse
- Harassment and stalking
- Online or digital abuse
You can contact domestic abuse support services for further support if you are a survivor of domestic abuse, or if you think you might be experiencing domestic abuse.
Non-court dispute resolution
Non-court dispute resolution (NCDR) means resolving legal disputes without going to court. NCDR is not mandatory. However, in the absence of domestic abuse or other exceptional circumstances, the court will expect some form of NCDR to have taken place before a court application is made.
There are different types of NCDR such as mediation, neutral evaluation and collaborative law, arbitration and using a solicitor neutral which are explained in this guide.
Most types of NCDR require cooperation and a commitment to negotiation. If you can reach an agreement, then you may save the time and stress of going to court. NCDR providers should ask you about your circumstances and discuss whether it is an appropriate choice for you.
Survivors of domestic abuse may have concerns about NCDR such as:
- You might fear that your ex-partner will abuse you during the NCDR process
- You may feel you cannot stand up for yourself or that you constantly doubt yourself because of the control and abuse that you are experiencing or have experienced from your ex-partner
- Your ex-partner wants to punish, control or coerce you and will not negotiate with you in good faith
If you have these concerns then NCDR is not appropriate for you.
The key point to know if you are a survivor of domestic abuse is you do not have to use any type of NCDR.
Even though NCDR is not mandatory, you may choose to use a form of NCDR if you feel this is the right option for you. Once you start NCDR you can stop at any time. Make sure your NCDR provider knows about the domestic abuse. This can help them support you and signpost you to appropriate services.
When making financial arrangements or arrangements for your children after relationship breakdown it is important to seek legal advice if possible. You can also read our guides on financial arrangements and children at www.rightsofwomen.org.uk.
The rest of this guide refers to your ex-spouse or ex-partner as the other party.
Consent orders
Agreements reached with your ex-partner are not usually enforceable. This means that if one of you does not stick to the agreement then there will not be legal consequences to this, you cannot take them to court to enforce the agreement.
An agreement you reach through mediation or other form of NCDR can become legally binding by turning it into a consent order. A consent order is a court order setting out what you have agreed during mediation that is sent to the court and approved by a judge. Once it has been approved by a judge it is then legally binding as a court order. Before signing a consent order, get legal advice from a family law solicitor if possible.
This Government website explains how to apply for a consent order if you agree financial arrangements with the other party: www.gov.uk/money-property-when-relationship-ends/apply-for-consent-order
Mediation
Mediation is a voluntary process where you and the other party have discussions helped by a trained mediator and try to reach your own agreements. Mediation discussions take place online and face-to-face and you can ask the mediator if they can arrange for you to be in a separate room either online or in person.
The mediator is there to assist with the discussion between you and your partner. It is not the role of the mediator to give you legal advice even if they are a qualified lawyer. Mediators should not take sides. In some circumstances mediators may provide general legal information to both parties during the session if it is appropriate, but they should not take sides between you and the other party. The mediator has a duty to advise you each to take separate legal advice.
Mediation can be very useful for couples who are open to compromise. It is therefore unlikely to be effective with a person who is controlling or coercive, as they are more likely to use the mediation process to perpetrate abuse.
Mediation is private and confidential. Things that are discussed in mediation or any agreements that are reached cannot usually be disclosed or used against you in court hearings. Any financial information that you or your ex-partner produce can be used outside the mediation. Mediation agreements are sometimes called a ‘memorandum of understanding’. They are not legally binding. This means there are no legal consequences on either party for not complying with the agreement. The advantage of this is that the agreement is flexible and can be changed to suit the parties.
If you want the agreement to be binding you can apply for the court to make a court order in the same terms as the mediation agreement. This is explained earlier in this guide.
Mediation can be very effective but it does not work for everyone.
As with many professionals involved in the family justice system, the knowledge and skills that mediators have on working with survivors and perpetrators of domestic abuse varies widely depending on their experience and training.
You can stop mediation at any time if you feel you are being bullied or abused during the mediation process.
Hybrid mediation
This is where your lawyer is in the room or online room with you during the mediation process. Your lawyer can give you advice during the mediation session. During the mediation session you can either put your views yourself or your lawyer can say them for you. The lawyer agrees to be bound by the same rules of confidentiality as you. Hybrid mediation is more expensive as you will need to pay for your lawyer in addition to the mediator.
Mediation information and assessment meeting (MIAM)
A MIAM is a meeting each party will have separately with a mediator. The purpose of a MAIM is to assess whether your problem is suitable for NCDR and provide information about:
- mediation
- other ways in which your dispute may be resolved without going to court
- whether mediation or other ways of resolving disputes are suitable for your case and to recommend a course of action
- the likely costs and timescale for each NCDR process
- the likely costs and timescales for court
- to assess you for legal aid, however it is best to check your eligibility before going to a MIAMs provider who doesn’t offer legal aid
MIAM providers must explain the potential benefits of mediation and other NCDR processes and indicate the most suitable form (or forms) of NCDR. They must also give information about how to use the method of NCDR that the MIAM provider thinks is suitable.
The mediator should also consider whether there has been, or there is a risk of, domestic abuse or harm to a child involved in the case. If domestic abuse is identified there may be cases where the mediator decide mediation and other types of NCDR are not appropriate. Only Family Mediation Council registered mediators can provide MIAMs.
Legal aid
If you are not working or on a low income, you may be eligible for legal aid for mediation so you will not have to pay the mediator. You may also be able to receive legal aid for a limited amount of independent advice on the issues you are mediating upon if you are financially eligible for legal aid. If the other party is eligible for legal aid but you are not, then the Legal Aid Agency will cover the cost of both of you to attend the MIAM (separately). For further details about legal aid see Guide to Family Law Legal Aid.
Family Mediation Voucher Scheme
The family mediation voucher scheme is a time-limited scheme, designed to support parties who may be able to resolve their family law disputes outside of court with the costs of mediation where there is a dependent child. The voucher is only payable against fees for mediation itself but not for any preparation work by the mediator.
To find out if the scheme is still available and if you are eligible for the voucher scheme, visit the government website.
Choosing a mediator
You should ensure that the mediator you use is a member of the Family Mediation Council. All members of the Family Mediation Council must adhere to a Code of Practice which details the general principles of mediation as well as training and conduct standards which can be expected from mediators. It also requires that each member organisation must adhere to a clear complaints procedure. Consider using an accredited mediator who has achieved a high level of experience and expertise.
Complaints about mediators
There is no standard complaints process for mediators. Complaints about mediators should be raised initially with the mediator themselves, and then the organisation who accredits them. If you have concerns about your mediator you can contact the Family Mediation Council.
Collaborative family practice
Collaborative family practice involves negotiating with the other party in a series of face-to-face meetings. In collaborative practice you attend these meetings with your lawyer so you and the other party will be negotiating with each other with the help of your legal representatives, who must both be trained collaborative lawyers. The lawyers share their legal advice openly in the process and this can save time and money. In addition, other types of professionals such as a financial adviser or accountant can be invited to join the process to provide their expertise in a neutral way to help reach an agreement.
Everyone involved in the collaborative process signs an agreement to try to resolve the issues without going to court.
If you are able to reach an agreement your solicitor may help you obtain a consent order if needed.
If you are unable to reach an agreement you may ask an arbitrator to make a decision for you. You may use the same lawyer when seeking help from the arbitrator.
If you are unable to reach an agreement you can still apply for financial relief or for a child arrangements order, but you will have to find a different solicitor. You cannot use the collaborative family lawyer to go to court. This is to ensure that none of the lawyers involved in trying to reach agreement have a financial benefit from you not agreeing.
Collaborative practice can be an expensive process and it is important that you ensure your solicitor sends you regular bills and that you are clear about the costs in advance and as the process is continuing.
If you have experienced domestic abuse then resolving financial or children matters through collaborative law may not be appropriate. If you are thinking about this option, ask your solicitor what steps they would take to protect you during the process.
Family arbitration
Arbitration is another form of NCDR where a very experienced legally trained person decides the arrangements for you and your family after considering all the circumstances. They are called an arbitrator. The decision is legally binding if the correct process is followed.
You and the other party will need to agree on an arbitrator. The arbitrator’s role is to consider all the evidence in the case and apply the law to make a decision on how your finances should be split, or on the arrangements for your children, or both. You will need to agree with the other party to give the arbitrator the power to decide what information is needed to make a decision and then make a decision for you.
The arbitrator must be a member of the Institute of Family Law Arbitrators. All arbitrators are qualified family solicitors or barristers who have completed the accredited arbitration course. To find a family arbitrator contact a family law solicitor or the Institute of Family Law Arbitrators.
Arbitration is expensive but can save time in comparison to going to court. There are a range of costs for using arbitration depending on how they are used including arbitrator fees, the cost of venue hire and each party will have to pay their own legal costs. The arbitrator can make a decision on the papers sent rather than having to have a hearing which is more cost effective than court.
Arbitration requires a certain amount of cooperation between the parties and arbitrators do not have the same powers to enforce orders the way a judge does. This makes arbitration less appropriate for cases where there has been domestic abuse.
It is a good idea to include in the instructions to the arbitrator at the beginning that you expect them to draft a court order for you at the end of the process which you can then submit to the court for approval. This avoids a common problem where an arbitrator makes a decision but the parties are then unable to agree the wording of the court order.
Early neutral evaluation
Early neutral evaluation involves a separating couple employing an independent third party who has experience of the area of law they are dealing with to give an independent opinion of the type of order that might be made if the case went to court.
It can be helpful to get an idea of what could happen at court at an early stage and without having to spend money on getting evidence and documents organised.
The neutral expert will provide a written document called an opinion about the situation. This opinion is not binding, which means you do not have to follow the expert’s opinion. It gives an unbiased evaluation of each party’s position, and can be useful to help negotiate an agreement between the parties.
If you and your ex-partner want to follow the expert’s opinion then you can put this agreement into a consent order.
Negotiating through lawyers
Some survivors of domestic abuse feel that the safest and most effective way of reaching an agreement is having their lawyer negotiate with the other party or the other party’s lawyer. This could be because this method does not require survivors to communicate with the other party or because they feel more confident about what they are saying and doing if they are supported by their lawyer.
If an agreement is reached through lawyers then this can be turned into a consent order. Consent orders are explained earlier in this guide.
This option can be expensive and is only available to survivors who can afford the services of a lawyer or are eligible for legal aid.
Again, lawyers’ understanding of domestic abuse varies. Some survivors feel supported by their lawyer, and some don’t. You can ask to talk to your lawyer and ask questions on their approach to domestic abuse before you commit to using them if possible.
Private Financial Dispute Resolution (Private FDR)
In a private FDR you and the other party will appoint an independent private judge. You provide all the information to the private judge who spends a day with you and helps you negotiate a settlement based on their view of the case. It is similar to Early Neutral Evaluation but usually more formal and feels more similar to part of the court process.
There is the opportunity for you and your lawyers to negotiate with their help. The private judge may think of novel approaches that break deadlocks and assist you to sort things out.
It is expensive. Some lawyer and private judges offer fixed fees.
Solicitor Neutral (one lawyer: one couple)
This is where an experienced lawyer works in the joint best interests of you both. However, it is not to be used where there is any power imbalance or domestic abuse. It is also not appropriate if there is conflict or there are concerns that a party may hide information about their finances.
Rules about NCDR
The family court rules are aimed at encouraging parties who are thinking about starting cases, or involved in cases which have already started, to use NCDR.
The rules state that the Family Court has a duty to encourage and facilitate the use of NCDR. A judge can decide to pause a case if they think the parties should attempt NCDR. However, the rules do not say that you must go through NCDR.
Requirement to attend a MIAM
For most types of cases the rules require parties to attend a MIAM before you make an application to the Family Court. This includes applications for financial orders and child arrangement orders. See the Mediation information and assessment meeting (MIAM) section of this guide for information on what happens at a MIAM.
You do not have to attend a MIAM if one of the exemptions applies to you. The exemptions include the following:
- You have evidence of domestic abuse. For example, evidence that the other party has been cautioned for or convicted of a domestic abuse offence, the other party has been arrested for a domestic abuse offence, or there is a criminal investigation ongoing about a domestic abuse offence, or there is or was a non-molestation order in place, or a letter from your GP or a domestic abuse specialist service. To see what evidence is accepted, you can look at the list on the C100 form and the Form A.
- If the application relates to a child, the local authority is involved with the family due to child protection concerns.
- You already attended a MIAM or made an application confirming a MIAM exemption applied within the last 4 months.
- The application must be made urgently because:
- there is risk to the life, liberty or physical safety of you, your family or your home, or
- any delay caused by attending a MIAM would cause –
- a risk of harm to a child,
- a risk of unlawful removal of a child from the United Kingdom, or a risk of unlawful retention of a child who is currently outside England and Wales,
- there would be problems with dealing with the dispute – for example evidence will be lost.
- You will suffer significant hardship.
- Other reasons, for example you don’t have contact details for the other party, or you need to make the application without notifying him, or he is in prison.
Other exemptions may also apply. See the C100 form and the Form A for the full list of exemptions.
If none of the exemptions apply, or you do not have the required evidence for domestic abuse and none of the other exemptions apply, then you will need to attend a MIAM before you can issue your court application.
At a MIAM, the mediator may decide that mediation or other forms of NCDR is not appropriate for you. If this happens the mediator will sign a document stating that mediation is not suitable or is not taking place. The reason for stating that mediation is not suitable can be because of domestic abuse.
Negotiating through lawyers does not count as NCDR under the court rules. This means that if you have tried negotiating through your lawyer and were not able to reach an agreement then you cannot go straight to court. You will still have to attend a MIAM, or provide evidence for a MIAM exemption.
If your ex-partner is making the application
If your ex-partner is making the application then the MIAM requirement will apply to them. They can apply for an exemption or they can attend a MIAM with a mediator.
The mediator will also invite you to attend a MIAM. You can refuse to attend the MIAM. The court will ask you to explain why you did not attend. If the court decides that you do not have a good enough reason not to attend then the judge can pause the proceedings so that you can attend the MIAM. Domestic abuse is a good reason not to attend a MIAM.
You could choose to attend the MIAM. If you do, tell the mediator about the domestic abuse. Your mediator may provide you with useful information or signpost you to other services. You do not have to proceed with mediation or NCDR before starting the case if you attend a MIAM. The court will know that you have attended the MIAM and have therefore considered all forms of NCDR.
When to apply to court
You can start your case at court if:
- You attend a MIAM and the mediator certifies that mediation is unsuitable for your case, or that you have attended a MIAM and mediation is not proceeding, or
- One of the exemptions to the MIAM requirement applies and you have evidence of this exemption,
- You and the other party have tried mediation and mediation has broken down or been unsuccessful.
If you are exempt from attending a MIAM, the court will check if you have the necessary evidence or if the exemption no longer applies. This check will happen at an early stage of the case. If the court decides that the exemption was not validly claimed, or no longer applies, then the court can direct that the case is paused for you to attend a MIAM.
After court proceedings have started
The family court rules say that the court must consider at every stage of the case whether NCDR is appropriate. The court may require parties at any stage of a case to complete a form setting out their views on using NCDR as a way of resolving the case. The form that must be used is Form FM5.
The court should not ask you to fill in a Form FM5 if you have given the court evidence of domestic abuse to exempt you from a MIAM or a Form C1A. Form C1A is used in child arrangement cases to alert the court of any risk of harm to child or the party
In deciding whether NCDR may be appropriate for a case the court will look at factors such as:
- whether a MIAM has taken place
- whether the court has seen evidence of a valid exemption for not attending a MIAM
- whether the parties tried NCDR and the outcome of that process
If the court decides that NCDR is appropriate at any stage, the court will encourage the parties:
- to obtain information about NCDR, and
- to undertake NCDR.
The court can pause the case even if you are a survivor of domestic abuse or have evidence of domestic abuse which exempts you from being required to attend a MIAM.
The court should only pause the case if there is sufficient time available in the timetabling for the case, for example, if there is enough time before a final hearing is listed.
The court is able to pause the case at any time. In cases about arrangements for children the court can only do this once the safeguarding checks have been completed by Cafcass. See our guide Children and the Law: the Family Court process for more information.
During your case a judge could decide that mediation or some form of NCDR is appropriate for you. The judge could then pause your case so that you can attend NCDR. You can refuse to attend NCDR even if the court is strongly encouraging you to explore it.
NCDR is not compulsory. If you do not attend NCDR this should not affect the outcome of the case, but will be taken into account when considering whether to make a costs order. A costs order is an order made by the court for one party to pay the other party’s legal costs. Reasons why a court might make a costs order include failure to attend a MIAM or NCDR without good reason.
Rights of Women is of the view that domestic abuse is a good reason not to attempt NCDR, and that survivors should never be forced to mediate with the other party. However, judges and professionals involved in the justice system have varied understanding of domestic abuse and this means some of them think NCDR should happen even if domestic abuse is alleged.
If you are a survivor of domestic abuse and are being pressured into NCDR or have had a costs order made against you for not attending NCDR then you may need to seek further legal advice about challenging that decision.
The law is complex and may have changed since this guide was produced (January 2025). This guide is designed to provide general information only for the law in England and Wales. You should seek up-to-date, independent legal advice. Rights of Women does not accept responsibility for any reliance placed on the legal information contained in this guide.