“ The future is built by the choices we make today.”
-Anonymous
Welcome to the Next Gen Edition of HNW Divorce Magazine, Issue 25, where we explore the evolving intersection of family, law, wealth, and the future of high-net-worth divorce. This edition examines the changing landscape of modern separation, from new perspectives on co-parenting and evolving legal frameworks to the growing role of mediation and other emerging approaches. We feature thought leaders shaping the future of divorce with clarity, innovation, and forward-thinking strategies. Plus, discover our HNW Divorce Wordsearch - complete it to redeem a 15% discount for one of our HNW events.
* Excluding Circles
The ThoughtLeaders4 HNW Divorce Team
Paul Barford Founder/Managing Director 020 3398 8510
email Paul
Danushka De Alwis Founder/Chief Operating Officer 020 3580 5891
26 - 28 August 2026 | Downing College, Cambridge, UK
Transatlantic Tax & Wealth Planning
15 September 2026 | Central London, UK
HNWs in Disputes: Retreat
23 - 25 September 2026 | Hilton London Syon Park Hotel & Spa, UK
Offshore Trusts Disputes Forum - ConTrA
29 - 30 September 2026 | The Royal Yacht Hotel, Jersey, Channel Islands
Contentious Probate & Inheritance Claims Circle
8 October 2026 | The NoMad, London, UK
Private Client Middle East Circle
14 - 16 October | The Ritz-Carlton, Ras Al Khaimah, Al Wadi Desert, UAE
Private Client Circle of Trust UK
5 - 6 November 2026 | Royal Berkshire Luxury Country Hotel - Ascot, Berkshire, UK
For event and speaking enquiries please contact Seth on +44 (0) 20 3433 2282 or email seth@thoughtleaders4.com
For partnership enquiries please contact Rachael on +44 (0)20 3398 8560 or email rachael@thoughtleaders4.com
FINDING A BETTER WAY FORWARD PUTTING CHILDREN FIRST
On 12 March 2026, the Family Solutions Group’s (FSG) launched their latest report: Putting Children First – the evolving role of the family law professional. The report, co-authored by Charlotte Bradley (Kingsley Napley) and Edward Cooke (Edward Cooke Family Law), took a deep dive into the future role of the modern family law professional, including both lawyers and non-lawyers, and how they can do better to support families through separation to put children and their needs first.
An extensive survey of around 550 family professionals and parents, as well as interviews with almost 50 key figures in the family separation arena, took place focusing on:
(1) The role and responsibilities of family law professionals;
(2) How those professionals should ensure that the voice of the child is ascertained;
(3) The training that all professionals should receive; and
(4) The benefits of reflective supervision/practice.
Why Is This Report So Important?
It can be easy for children to get lost in the process when families separate, with so much of the focus being on financial matters or the wants and desires of the parents. The report’s powerful opening from the voice of a child is a reminder that family separation is a defining moment in a child’s life. It is well known that protracted parental conflict and toxic separations can cause long-lasting
damage to children, including poorer mental health and long-term impacts on their wellbeing. At the launch event on 12 March 2026, Shakira Paulas at Restored Lives spoke powerfully about children of separated families and posed the question: if children’s lives are shaped by the outcomes of the separation process, what responsibility do family law professionals carry to ensure their views are not lost within it? She further highlighted that if you asked a child of separating parents who is responsible for thinking about them, they would assume the answer was everyone or at a minimum their parents and legal teams. Yet this is not always the case.
Putting Children First calls for a redesign of the current system to help separating families, urging a stronger emphasis on more coordinated oversight to ensure children’s rights and needs remain central throughout the separation process. This applies not only to matters concerning children’s arrangements but also considering their welfare within the financial sphere, something which is rarely explicitly referenced.
At the launch event held at Kingsley Napley, there was an overwhelming level of support for change, including from the then President of the Family Division, Sir Andrew MacFarlane, who stated he was fervently in support of the report. In addition, the newly appointed President Lord Justice Stephen Cobb, who provided the foreword for the report, noted that we need to re-shape our approach
“reframing family separation as a problemsolving exercise—one that is investigative, safetyfocused, and designed to come alongside families in difficulty, guiding them through rather than setting them against one another.”
Key Themes Arising From The Report
The report highlights strong support for child-centred responsibilities in family law. Across both family professionals and parents there was an overwhelming agreement that family law practitioners should prioritise children’s welfare, including routinely hearing children’s voices and reducing conflict between separating parents. The survey confirmed wide support for improved training within the family profession, with 91% of participants supporting mandated training of at least 50% of the training areas recommended in the FSG’s 2020 report What about Me. Since the Legal Aid cuts in 2013, many separating families have had to turn to non-regulated advisors and not-for-profit organisations. While often helpful, this landscape can be confusing and the report stresses the importance of ensuring all professionals working with separating families – legal or otherwise – have appropriate training and take time to reflect on their work.
In the last few years, family law has also seen a real shift toward a less adversarial justice system. Recent reforms, such as no-fault divorce in 2022 and the introduction of the non-court dispute resolution (NCDR) requirements in 2024, advocate for a more constructive, solution-focused approach. The introduction of NCDR has proved popular for many divorcing and separating couples, particularly amongst HNW individuals who choose to keep matters away from the court arena, which ultimately benefits the family as whole. NCDR further offers families a more tailored and private approach that fits their needs where the court model may not. This can help bolster more amicable relationships for parents long-term providing a more positive impact on their children’s wellbeing.
What the report really emphasised is the need to redefine and modernise the concept of child welfare. It is clear there needs to be greater clarity and a re-evaluation of what a child’s welfare actually encompasses, particularly in the context of financial proceedings, so that this is properly considered across all areas of family law.
Children’s Commissioner’s Letter
Finding A Better Way Forward
The report attaches a letter to separating parents drafted by the Children’s Commissioner, Dame Rachel de Souza and urges family law professionals to share this with their clients to remind them to put their children first. It is an opportunity to emphasise to parents the impact of conflict on children.
What is clear is that there is growing momentum across the family law profession to do better for children of separating parents, and our culture and way of working to support this is evolving. Whilst many family law professionals are already playing their part, there is always room to reflect on how we can go further to better support our clients and their children. As Sir Andrew MacFarlane emphasised at the report’s launch event, the change in approach will not mean less work for the family law profession but instead different work, with less fallout and less harm to the families and children we support.
Every family law professional has the opportunity to improve a child’s experience of their parents’ separation. How will you evolve your approach as a result of the report?
COMPLEX REMUNERATION STRUCTURES
Divorce proceedings involving complex remuneration structures can be daunting, especially when partnership arrangements, bonuses, stock options, and other incentive packages are involved. Clients navigating these issues often need clear, informed guidance to ensure every element is properly understood and fairly represented.
At Kingsley Napley, we take time to understand each client’s unique financial landscape. Our Family Law and Employment teams work collaboratively, offering tailored, tax-aware advice with discretion and care. With extensive experience in high-net-worth cases, we support clients in securing strategic settlements that protect their interests and future financial wellbeing - when it matters most.
For more information, please scan the QR code to visit our webpage or give us a call.
+44 (0)20 7814 1200
CORPORATE FUNDS PRIVATE CAPITAL
Cayman Islands | Guernsey | Ireland | Jersey | Norway | South Africa | Sweden | UK
High net worth legal practice is demanding, but it is not the intensity that tends to cause difficulty. It is the fact that the pressure is constant.
The work is complex, the clients are sophisticated, and the stakes are often high. For many, that is part of the attraction. What is less often discussed is the nature of the pressure that comes with it. It is not simply that the work is challenging. It is that the demands tend to be ongoing, and often less visible.
In my view, the defining feature of this part of the market is the proximity to the client. Matters are frequently personal, sometimes reputational, and rarely straightforward. Clients are not only seeking legal advice; they are looking for reassurance, discretion and, at times, a level of responsiveness that goes beyond the purely transactional.
That changes the dynamic.
Expectations around availability can become implicit rather than explicit. Being responsive becomes part of the service, and over time it can shift from something that is expected to something that feels difficult to step away from.
For high-performing lawyers, that line is often the first to move.
The individuals who are most trusted by clients tend also to be those who take the greatest responsibility for the relationship. They respond quickly, remain closely involved and maintain a steady presence throughout. From the outside, that looks like control. In practice, it can mean carrying a significant and continuous load.
Alongside this, there is often an unspoken expectation that everything is under control. Particularly in sensitive or high-profile matters, there is little room for visible strain. The ability to remain calm, measured and responsive is part of what clients value.
Over time, that can create a situation where pressure is managed rather than addressed.
In that sense, the issue is not whether people can cope with pressure, but how long they can continue to do so in the same way.
It is in that context that the conversation around “wellbeing” can feel slightly misdirected.
are set not just by what is said, but by what is done. Who is always available, who is rewarded, and how work is distributed all contribute to the overall picture.
That might mean being more explicit about availability, or taking a more deliberate approach to how work is shared. It might also involve recognising that sustaining high performance requires a degree of structure around it, rather than relying solely on individual effort.
None of this is about reducing standards. If anything, it is the opposite.
High net worth clients expect a high level of service, and rightly so. The question is how that level of service is delivered in a way that can be maintained over time.
From what I am seeing, the practices that are most effective are those that recognise that sustainability is part of performance, not separate from it. They pay attention to how work is managed, how people are supported, and how expectations are set.
That does not remove the pressure inherent in the work. It is unlikely to. But it does make it more manageable.
High performance in this context is not about working less. It is about working in a way that allows that performance to continue, without it becoming unsustainable.
In my experience, the issue is rarely a lack of resilience. The lawyers working in this space are, by definition, capable of managing demanding workloads. Nor is it something that is easily addressed through surface-level initiatives.
The more relevant questions tend to be structural. How is work allocated? What level of responsiveness is genuinely required, and what is assumed? How easy is it for someone to say that they are at capacity? And, perhaps most importantly, are those conversations actually happening?
Where those questions are not addressed, the default tends to be that the pressure is absorbed by individuals.
That is not necessarily sustainable, particularly over the longer term.
For firms and chambers, this is not simply an individual issue. It is shaped by how practices are run. Expectations
In high net worth work, those signals can be quite subtle. There may be no formal requirement to be constantly available, but if the same individuals are always the ones responding, a pattern develops.
Equally, the strength of client relationships can make it more difficult to share responsibility. Clients may prefer to deal with a particular individual, and there can be a natural reluctance to change that dynamic. Over time, however, that can limit the ability to build depth and create space within the practice.
The practices that seem to manage this well are not necessarily doing anything radical. In many cases, it comes down to clearer expectations and more open conversations.
Offshore Trusts Disputes Forum 2026
What is one work related goal you would like to achieve in the next five years?
To help the family department at PHB maintain its leading position in all the directories and cement its position as the “go to” team in the country for HNW/UHNW family law matters.
What causes are you passionate about?
In a professional context, I take a strong stand against anyone asserting a position of financial power and dominance for litigation advantage. I cannot abide by financial control or coercion. Similarly, using children as a pawn in a separation is one of the most damaging courses of conduct that a parent can do, and I think it is an area that is often overlooked or not engaged with by an overstretched and under-funded judiciary.
What does the perfect weekend look like?
At the moment, anything quiet!
Saturday - a gym class, nice lunch with my husband, a few drinks with friends on a Saturday afternoon.
Sunday – a lie in, a nice, long walk and a decent Sunday lunch.
60 SECONDS WITH... ALEX O’DWYER CURRAN
LEGAL DIRECTOR, FAMILY
PAYNE HICKS BEACH
What has been the best piece of advice you have been given in your career?
Never write something that you would not want to have read out in court by a High Court judge. And the importance of setting boundaries with clients.
What is the best film of all time?
Depending on my mood, there are multiple answers to this question. But if I was to go for a film that is often seen as a genuine contender for this accolade then it would be The Shawshank Redemption.
What do you see as the most rewarding thing about your job?
The intellectual stimulation and the variety of clients I get to work with.
How do you deal with stress in your work life?
I try to keep fit and active and I find that is a good way to decompress and manage stress. Cooking is another one, although, depending on the success of what I have made it can be the case my stress levels go up, especially when I see the state of the kitchen.
What is one important skill that you think everyone should have?
Being able to recognise when they are wrong and being able to say, genuinely, “I’m sorry”.
What book do you think everyone should read, and why?
I absolutely loved “I Am Pilgrim” by Terry Hayes. It is one of the few books that I genuinely could not put down. It is just a shame that after waiting so longer that the sequel was a total disaster.
What’s your go to relaxing activities to destress after a long day at work?
A long walk, or reading at home with some relaxing music on.
Musicians often use their relationships (and break-ups…) as inspiration for their work. But what happens when the muse and the maker marry but then divorce? What claim does the muse have over the “content” created during the marriage and any future earnings that it might generate?
There are often serious sums involved in musicians’ back catalogues (Britney Spear reportedly sold hers at the end of 2025 for $200m) not to mention the huge amount that can be generated from tours featuring music written during the marriage. On a conservative valuation each Gallagher brother (who have four divorces between them) received over £50m each from the recent OASIS tour and likely considerably more once merchandise and additional rights income are taken into account.
This article looks at how the English court deals with both the capital asset and future income streams, where the couple themselves cannot agree.
The Status of the Existing Asset
Valuation of the Capital Asset
The basic starting point in family law is that (absent a nuptial agreement to the contrary) an asset made during a marriage is treated as matrimonial property and in broad terms, subject to questions of taxation and liquidity, it should be shared equally between the parties. Music created during a marriage is no different. The underlying intellectual property rights are, just that, property, and the court will include the copyright (and related rights) in the marital asset base to be divided.
Having established that the back catalogue is in the matrimonial “pot”, the court then needs to know what its capital value is. Determining the value is extremely difficult given the subjective nature of the underlying asset and the role the court of public opinion plays. Wider social tastes may change and the music fall out of fashion. Worse, the “Talent” could be “cancelled” making the asset all but worthless overnight.
Unlike in property or business valuations, there are also unlikely to be useful comparables to inform the valuation as each body of work is unique. Try telling a Swiftie that Taylor’s back catalogue is comparable to that of say Beyonce’s.
If the parties can’t agree on a value, the court will give permission for an expert to be jointly instructed by the parties, to provide expert evidence on the value. This expert, known as a Single Joint Expert (“SJE”), must take into account a myriad of factors including:
• historic royalty revenues;
• the contractual framework e.g. the remaining term of publishing or recording agreements and any reversion or termination rights;
• the likelihood of the music being utilised in new ways e.g. in films, TV, adverts and video games; and
• the inherent volatility of creative income e.g. the risk of declining popularity or cancellation.
In the recent case of ED v OF [2024] EWFC 297, the husband was a successful songwriter and producer with a substantial and extremely valuable back-catalogue. In this case, the SJE valued the recording, producer and publishing rights by applying the Discounted Cash Flow methodology, taking a 9% Weighted Average Cost of Capital rate.
Treatment of the Capital Asset
Once there is an agreed (or at least court determined) value, the judge then has to decide how to reflect that value in a settlement. Case law tells us that the asset is matrimonial and therefore falls to be shared, however, judges are also bound by statute and Section 25A of the Matrimonial Causes Act 1973 imposes a duty on judges to try to achieve a clean break.
No two cases are the same but the preference seems to be for the creator to retain the back catalogue and for the other spouse to be bought out of their interest either by offsetting (e.g. giving
them more of the other available assets) or simply by way of a lump sum at the conclusion of the proceedings or shortly thereafter.
This leaves the creative with control over their life’s work whilst fairly compensating the spouse for their contribution. However, things get complicated where there isn’t the liquidity to simply pay off the other party. In such cases the courts may order a deferred buy out –whereby the compensating payment is delayed to enable the creative to find the money in a specified period of time (usually 1 – 5 years), failing which the asset is sold and the net proceeds split between the parties. The courts do not like to require the sale of assets where it can be avoided but they also do not want to order unended sharing in specie because of their duty to effect a clean break as soon as it is fair to do so – a sensible approach given the practical difficulties and room for dispute involved in long term joint ownership.
Until the spouse is bought out, there is usually provision to share in the royalties that accrue in the meantime. The respective percentage shares of the future income will be decided on a caseby-case basis. If the income is generated entirely passively i.e. it requires no active management on an ongoing basis by the creative then it is likely that the income will be divided equally. If the creative is actively working to generate new income streams from the catalogue then there is more scope to argue for an unequal split in the creative’s favour.
After the Split
If a spouse has been fully bought out of their interest, they have no further claim over the asset. Any future increase in capital value or income generated (from lucrative tours for example) remains that of the spouse who retains the asset –such is the nature of a clean break. On the flip side of the coin – the creative also bears all the risk going forward. They could have paid a fortune to buy out their spouse only to be cancelled the next day leaving them with a worthless asset.
And what about new music created after the divorce? An artist having honed their skills and built up a reputation during a marriage may well go on to create new work post separation – the music may even be inspired by the breakup. The former spouse may want to argue that they should have a share in future earnings because the earning capacity was generated during the marriage. They may feel particularly strongly about this where they personally can be identified in the music. Take for example Lily Allen’s latest album West End Girl. All 14 tracks graphically detail the decline and demise of her marriage to actor David Harbour – can he at least get a share of the profits to soften the blow? Sadly for the reluctant muse, following a case called Waggott v Waggott [2018] EWCA Civ 727, the court is clear that a future earning capacity is not matrimonial property and a former spouse does not have an entitlement to a share of a future income stream.
Conclusion
The above sets out how the court approaches cases where the asset base includes a musical back catalogue. However, it is always open to a couple to agree something different either prior to the marriage (e.g. by entering into a Pre-Nuptial Agreement which specifies how they would like such assets to be treated in the event of separation) or at the time of the divorce by negotiating a settlement. For some creatives the prospect of being forced to sell their body of work is so upsetting that they would rather mediate or negotiate through solicitors to agree a bespoke agreement – rather than leave it in the pragmatic but unimaginative legal system.
Specialist Legal Services
A distinguished full-service law firm providing tailored legal advice and litigation services for domestic and international high-net-worth individuals, families, family offices, and commercial clients.
ESTATE & SUCCESSION PLANNING
UK & OFFSHORE TAX ADVICE
CONTENTIOUS TRUSTS & PROBATE
FAMILY, CHILDREN, DIVORCE & SURROGACY
Payne Hicks Beach LLP is a firm of solicitors who take pride in building strong client relationships based on trust, integrity and the vision to succeed.
What is one work related goal you would like to achieve in the next five years?
To become an FMC accredited mediator.
60 SECONDS WITH... SARFRAZ ALI SENIOR
ASSOCIATE
WITHERS
What’s the most important quote you’ve heard that you have adopted to your personal or professional life?
Almost everything will work again if you unplug it for a few minutes, including you.
What would be your superpower and why?
Atmokinesis (or as I like to think of it…the ability to make any day in London sunny and 24C).
Who has been your biggest role model in the industry?
I’m lucky to have worked with and learned from so many fantastic lawyers during my career. I couldn’t possibly pick one!
What motivates you most about your work?
The intellectual challenge in finding creative, bespoke solutions to the complex and highly personal situations my clients are facing.
What’s your go to relaxing activities to destress after a long day at work?
A long (hopefully bright… using my powers of atmokinesis) walk through the local park with my dog.
What was the last book you read?
Flashlight by Susan Choi
What has been the best piece of advice you have been given in your career?
Never stop learning
What do you see as the most significant trend in your practice in a year’s time?
Hopefully, increased momentum towards improved rights for cohabitants on relationship breakdown.
We are trusted advisors to families, and more than this, to governments,
Who has been your biggest role model in your career?
Without hesitation, my secondary school headmistress, Joan Clanchy. As the headmistress of an all-girls school in North London, she instilled in us a belief that we could achieve anything, and that we should never allow others’ perceptions to define or limit us. I’ve carried that with me throughout my career. The legal profession can be a world of preconceptions, about background, about identity, about who belongs, and Mrs Clanchy’s voice has often been the one that reminded me not to be constrained by any of them. What motivated you to pursue a career in Legal AI?
After working as a lawyer for over 20 years, I was determined to keep challenging myself. Completing a Master’s in Technology Law at King’s College London in 2025, I became fascinated by AI and its potential to transform legal services. Graduating, I knew I wanted to be part of the transformation, and I am incredibly excited to now be the Head of UK and EU for Lucio AI.
60 SECONDS WITH... AMY TABRAHAM HEAD OF UK & EU LUCIO AI
What do you see as the most rewarding thing about your job?
Providing lawyers with a solution to help them manage the increasing pressures and demands of the job. Lucio makes a real difference to a lawyer’s working life, helping them to deliver their services more efficiently, reduce the noise, and granting them the time to focus on the work that truly requires their expertise. That, for me, is what makes this role so rewarding.
What do you see as the most significant trend in your practice in a year’s time?
The firms that embrace AI will increasingly pull ahead of those that resist, and that advantage will keep compounding. Securing a licence is however not enough, the firms and chambers that thrive will be those that drive genuine adoption firm-wide. That’s where organisations like Lucio come in. Our dedicated implementation support ensures that AI is embedded into how firms and chambers actually work, not just what they have access to.
What is one important skill that you think everyone should have?
The ability to listen. In over 20 years practicing law, I’ve seen how easily the quietest voice in the room can be drowned out by the loudest. Yet the most impactful people I’ve worked with aren’t necessarily the ones who talk the most, or indeed the loudest. Instead, it’s those who listen deeply and respond thoughtfully, granting the topic at hand the time it requires.
What is the biggest life lesson you have learned?
Perspective. Working in a fast-moving, high-pressure industry, it’s easy to treat every setback as a crisis, but I’ve learned, sometimes the hard way, that things are rarely as serious as they feel in the moment. Tomorrow brings a new perspective; you learn from the setbacks and become a more rounded professional as a result.
Lucio
Lucio
NCDR IN 2026
THE NEW CENTRE OF GRAVITY IN HNW DIVORCE
Non-Court Dispute Resolution (NCDR) has long been part of family practice, but in 2026 it has become more fundamental and often the default route for resolving high-value financial remedy cases. For HNW and UHNW clients, the question is no longer whether to explore non-court options, but how early and how strategically they should be deployed.
Court Delays and the Judicial Steer
The Covid-19 pandemic put enormous strain on the Family Court, increasing a sustained pressure that continues today. Chronic backlog, late-listed hearings and last-minute cancellations have become routine, with preparation time frequently wasted and costs escalating. For HNW cases in particular, delay creates real financial consequences when valuations become outdated, expert evidence needs to be
refreshed, and commercial contexts shift in ways that materially affect negotiations.
Aligned with this practical reality is the judicial steer towards NCDR. Since 2024, NCDR has not just been encouraged but expected. Parties must complete a Form FM5 prior to the first appointment, and judges increasingly warn of adverse costs consequences where a party has unreasonably refused to engage in mediation, arbitration or a private FDR. The message has consistently been that court time is a scarce resource that should be reserved for issues requiring judicial intervention. The 2026 government consultation on financial remedies and cohabitation reform is expected to entrench this direction further.
Why NCDR Aligns with the HNW Market
HNW clients often approach divorce with the same mindset used in commercial negotiations: a preference for efficiency, confidentiality, specialist expertise and control over the process. NCDR meets those expectations.
Private FDRs and arbitration allow parties to select a tribunal with genuine experience in complex wealth structures such as offshore trusts, carried interest, family investment companies or cross-border assets. Timetables can be aligned with liquidity events, tax calendars or international proceedings. Remote participation caters to ever more globally mobile families. Disclosure, expert input and settlement discussions can be managed in a tailored, commercially-paced environment.
For many clients, keeping financial information and family dynamics out of the public domain is strategic rather than simply desirable. Judgments in family cases are increasingly being published, and even anonymised decisions can attract media interest in high-profile matters. NCDR instead promotes confidentiality, control over venue, the ability to select a specialist neutral, and freedom from curious observers or reporting to shield otherwise private information from unwanted exposure.
It is worth noting that whilst NCDR offers a high level of confidentiality, it is not necessarily an absolute one. In Spencer v Spencer [2025] EWFC 431, limited extracts of an arbitral award were permitted to be disclosed in related High Court proceedings, demonstrating that privacy can be tested where issues spill into other jurisdictions. Even so, NCDR remains the most robust shield against unwanted public exposure.
A Profession Re‑Engineered Around Private Resolution
a mediator. Having the same mediator who has worked with the parties from the outset hear the indication at the private FDR can help to maintain momentum toward settlement. Alternatively, resolving an intractable intervener issue through arbitration before moving on to a mediation or private FDR for the remaining matters between spouses.
Confidentiality Vs Accountability
Across the family law sector, strategies for high-value cases are increasingly built around a blend of:
• Mediation and hybrid mediation
• Private FDRs
• Arbitration
• Collaborative law
• “One Lawyer, Two Clients”
These processes offer speed, expert-led or autonomous decision-making and procedural flexibility which are qualities that align closely with the expectations of HNW clients accustomed to bespoke professional services. The “One Lawyer, Two Clients” model has gained particular traction among separating couples with significant assets but low interpersonal conflict, offering efficient resolution without requiring two sets of lawyers. Collaborative Law has experienced a resurgence in recent times, in particular when negotiating nuptial agreements, with more clients seeking resolution through non confrontational methods, guided by their own independent and dedicated legal advisers in round table meetings.
There is also growing interest in using these forms of NCDR more creatively. For example, by combining a private FDR with the continued involvement of
Judicial commentary over recent years has emphasised that while NCDR is encouraged, it is not appropriate for every case and private processes must not become a means of avoiding judicial scrutiny.
Equally, courts are prepared to penalise unreasonable refusals to engage in NCDR. Litigating aggressively for tactical reasons (whether to exert pressure, increase cost or seek publicity) is increasingly discouraged.
The Emerging Two‑Tier System
The growth of NCDR has raised concerns about a two-tier system. High-value cases, resolved privately, may no longer contribute to the development of case law. In the future it seems possible this may hinder the evolution of judicial guidance or reduce judicial exposure to the realities of contemporary wealth.
However, courts continue to publish judgments where clarification of principle is needed, regardless of asset level, and it remains likely that the exceptional HNW cases reaching court will continue to shape key areas of case law.
Litigation as the Exception
The combined effect of delay, judicial policy, client preference and professional culture is that litigation has shifted to the far end of the dispute-resolution spectrum. In high-value cases, public court proceedings are now generally reserved for serious non-disclosure or dissipation allegations, safeguarding or coercive control concerns, novel or complex legal issues of wider public importance and situations requiring compulsion or enforcement powers. Most other issues, from liquidity structuring to trust-related disputes, are increasingly resolved within private, expert-led processes.
Conclusion
In 2026, NCDR is no longer an “alternative” to litigation; it is the strategic core of modern high-value family practice. For HNW and UHNW clients, the advantages of confidentiality, expertise, procedural control and speed are decisive. For practitioners, the central question is how best to structure NCDR within the processes of a case, considering its timing, sequencing and the selection of the right professionals. NCDR processes now define the landscape, and their prominence is only set to grow.
As an independent, owner-managed fiduciary group Fairway is committed to delivering client-centric solutions that endure. Headquartered in Jersey, with offices in Dubai, Kuwait, Singapore and Madeira, we offer seamless, director-led services across Private Client, Corporate, Funds, and Pensions. Our award-winning team combines innovative solutions with administrative and technical excellence, ensuring each client's unique needs are met with precision and care.
Consciously independent.
For our Private Clients, we offer bespoke services tailored to manage and transfer family wealth across generations. Our offerings include Trust, Company and Foundation Incorporation and Administration, Directorship Services, Family Office Solutions, and Private Trust Companies. Our director-led team delivers tailored, long-term solutions for effective family wealth management and generational wealth transfer.
MODERN WEALTH, MODERN DIVORCE
NEW CHALLENGES IN HIGH NET WORTH SEPARATION
Authored by: Lisa Honey (Senior Associate) - Tees Law, Family team
A divorce is considered as ‘high net worth’ (HNW) where the combined assets of the separating couple exceed £5m, but there is no set limit or definition. This could include a significant property portfolio, complex business interests, international assets and high pension values. Ultra-high net worth cases often include combined assets worth over £30m. HNW cases typically involve complicated issues of law and require careful consideration and expertise.
Alongside the complexities involved in a HNW divorce, family lawyers must grapple with an ever-changing technological landscape as well as nontraditional ways of earning an income.
Whilst a standard divorce case might involve the family home, a few rental properties and a pension; younger couples including millennials and Gen-Z have introduced change to the ways in which modern assets are held. Below, we consider the various implications of the evolving nature of the younger generation’s asset base.
Modern Finances
As younger couples enter the divorce arena, solicitors and the courts alike are finding that the standard asset base is changing in line with technological advancements and the fact the world is becoming smaller. International connections are more common, and couples are venturing into the world of digital Crypto assets as well as earning an income from unconventional sources, such as influencing and gaming online. In this new world of finance, family law professionals are finding there are new and often complex issues which need to be unpicked.
In the context of English Law, Crypto assets are recognised as property for the purposes of divorce and the division of assets. Crypto assets could include Crypto currency, which is considered as digital money, such as Bitcoin or Ethereum. Or it could be a Crypto asset in the form of a Non-Fungible Token, for example a digital piece of artwork. The issue with Crypto assets is that they are stored digitally across multiple platforms and their value can fluctuate significantly on a daily basis. It can therefore be difficult to trace funds, should a party seek to conceal those assets. Due to the volatile nature of Crypto, it can be problematic in assigning a value and risk between the parties.
Alongside capital assets, it is now more common for younger couples to earn a living from the internet- for example by influencing or gaming online. Such professions can be extremely lucrative, but it is unusual for a party to be earning a set annual income and it is usually difficult to predict what their earning potential may be going forward.
Matrimonial and Non‑ Matrimonial Property
It is becoming commonplace for parents and family members to gift assets during their lifetime usually as part of efficient inheritance tax planning. In addition to inheritance and gifted assets, the younger generation seem to be entering into marriage at an older age when compared to the generation of baby boomers and Gen-X before them. As a result, each party may already hold significant assets including pensions prior to the marriage. Consequently, there will commonly be additional considerations with young couples wanting to protect assets acquired outside the marriage.
Whilst pre-nuptial agreements have always been considered as ‘unromantic’ and non- binding, younger couples are becoming increasingly prepared to enter into a formal agreement setting out their asset base and the financial division should the marriage come to an end. In the landmark case of Radmacher v Granatino [2010] UKSC 42, the Supreme Court said that a pre-nuptial agreement should be upheld, provided
it is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement. It is generally accepted therefore that as long as a nuptial agreement complies with the guidance in Radmacher, and it is considered fair, the parties will usually be bound by it. It is hoped there will be further clarity from parliament in the future- In February 2014, the Law Commission published its report ‘Matrimonial Property, Needs & Agreements’ in which it recommended legislative reform to make nuptial agreements binding, provided certain criteria is met. However, we are now 12 years from the issue of the report and there has been no movement from parliament on this point.
Amicable and Modern Approaches
In recent times, we are seeing a trend of younger couples dealing with divorce in a more amicable, respectful and conscious way as opposed to previous generations. They seem to approach divorce with a higher emotional intelligence and are more likely to consider non court dispute resolution, rather than embarking on a lengthy and
stressful Court battle. Younger couples are more likely to consider the modern idea of ‘conscious uncoupling’ and are keen to work together in an amicable way to support any children by coparenting effectively. The introduction of the Resolution Together model has assisted us in supporting this trend, in addition to the use of trained mediators, collaborative law, Early Neutral Evaluation and Arbitration as alternatives. It is also becoming popular to seek the support of counsellors, family therapists and life coaches alongside the traditional family solicitor role. Divorce is no longer considered as embarrassing or shameful and indeed, a great deal of couples even take to social media to celebrate a separation or divorce!
It should be mentioned here that not all couples see marriage as a must and there has been a huge increase in cohabitees choosing to remain unmarried. It is no longer frowned upon to live with or have children with a partner before marriage. Unfortunately, the law relating to cohabitees does not afford the same protection as it does with a married couple, but the UK government is planning to launch a formal public consultation in the Spring of 2026. As we are now in May 2026, it looks like it’s a case of watch this space.
THE OFFSHORE BOND IN THE ROOM
Authored by: Emma Stanfield (Financial Adviser) - Atlas Wealth
Part of my job is setting up offshore bonds and making sure clients get the maximum tax efficiency from them. They work well for that purpose. What they are not designed for is being divided in divorce proceedings, and in my experience that tension rarely gets the attention it deserves. The moment one appears on an asset schedule, the question should shift from what it is worth to what it will actually be worth once tax is brought into the picture. Those are rarely the same number, and the difference matters.
What It Actually Is
An offshore bond is a life assurancebased investment wrapper issued by a non-UK insurer. It allows investments to grow inside the structure without the
investor being taxed each year in the way they would be holding the same assets directly. That tax deferral is the point. The bond is not the investment itself but a structure around it, and that distinction matters once divorce enters the picture.
Clients use these products for all sorts of reasons: retirement planning, private school fee planning, estate planning, cross-border flexibility. Whatever the original intention, the structure needs examining carefully the moment it appears in a settlement.
The Number that Matters
The figure shown on an asset schedule is the gross value, not what the recipient will be left with after tax. In higher-value cases that gap can be substantial enough to affect the overall balance of a settlement.
Growth inside the bond is generally not taxed annually. Tax is deferred until a chargeable event occurs: a full surrender, certain partial withdrawals, maturity, death, or some types of assignment. When that event happens, the gain is typically taxed as income rather than capital gains.
The 5% withdrawal allowance causes regular confusion. It is often described loosely as tax-free income, and clients frequently believe it to be exactly that. It is not. It defers the tax rather than removing it, and ongoing adviser charges are typically taken from within that allowance too, so the available headroom is often smaller than it first appears.
Timing matters here too. These are long-term products, usually structured with a decade or more in mind. Forcing a chargeable event early because a settlement requires it can crystallise a tax liability that would have been far more manageable had the bond been left to run.
Surrender, Assignment, and the Tax Sting
A few years later, the wife needs to access the money. The accumulated gain is large, the tax on surrender significantly higher than anticipated, and what she actually receives is materially less than the schedule suggested. Her husband, holding liquid assets, is unaffected. The settlement was equal in gross terms. In net terms, it was not, and the difference was entirely foreseeable had the after-tax position been modelled before the order was finalised.
Cross‑Border Complications
Surrendering the bond crystallises the gain immediately, and the tax falls on whoever owns the policy at that point. The timing of implementation and the identity of the legal owner at surrender are not administrative details; they are material to the tax outcome.
Assignment is more nuanced. Depending on how it is structured, it may or may not trigger a chargeable event. A settlement can appear to achieve equal division while the implementation produces a tax charge nobody priced in. That cost is then borne by the client.
Top-slicing relief can reduce the effective rate in some cases by preventing a large accumulated gain being taxed as though it all arose in a single year. But its value depends on the client’s other income, their tax band, and the size of the gain. It should not be assumed to make the problem disappear.
An Example
Say you have a husband and wife separating after ten years of marriage. They hold an offshore bond worth £900,000, built up as part of their longterm wealth planning. The wife receives the bond; the husband takes cash and property to the same gross value. Equal
For clients with international connections, the tax efficiency of an offshore bond is not a given. France, Spain, Italy and the USA are among the jurisdictions where local tax authorities look straight through the bond structure and tax income and gains annually, particularly where the client has had any involvement in directing the underlying investments. The deferral benefit that makes these products attractive in a UK context simply does not exist there, and a client returning to the UK after a period abroad may also face unexpected consequences depending on the type of bond they hold and whether it qualifies for time apportionment relief.
Ownership structure matters too. A bond held in joint names passes to the survivor on death, which works well in a planning context. In divorce, that raises immediate questions about who owns what and whether the bond can be transferred without triggering consequences under the law of another jurisdiction. Where a bond is held by a sole owner but written on joint lives, the position on divorce can differ significantly depending on how it was originally set up, and the proceeds may not automatically flow in the direction anyone assumed, which is why a settlement with any international dimension cannot be built on UK tax assumptions alone.
Questions Worth Asking
Before finalising terms involving an offshore bond, it is worth knowing: who legally owns the bond; what gain has accumulated; whether withdrawals have already been taken; whether surrender would trigger tax immediately; whether assignment is possible without creating a charge; and what the net value looks like after tax for each party.
Those questions can change the shape of a settlement considerably. Clients are rarely troubled by complexity when it is explained clearly. What they do not forgive is finding out after the event that a tidy-looking settlement has produced an avoidable tax bill. The offshore bond may look like just another line on the schedule. Treated carelessly, it can quietly remove value from both sides of the table.
SAFEGUARDING YOUR PERSONAL AND FINANCIAL FUTURE
As a young and successful individual, you’ve worked hard to achieve your wealth and build your lifestyle. With success comes a range of legal considerations that can shape your future and safeguard your assets.
Whether you’re navigating your career, new personal milestones, considering starting a family or planning for the long term, here are some key steps that you should consider ensuring that your interests are protected.
It’s tempting to think that the law is only relevant for those going through a dispute, relating to your employment or business or perhaps a divorce or dealing with child arrangements. In reality, it encompasses a much broader spectrum of services designed to secure your personal and financial wellbeing.
If you’re in a position of wealth and responsibility, here are a few scenarios to consider:
Making a Will and Estate Planning
Now, more than ever, it is essential to take steps to protect your loved ones, especially if you are unmarried, or hold significant assets.
Frozen nil-rate bands, the wellrehearsed limitations recently imposed on APR and BPR, and upcoming changes proposed from 2027 meaning that unspent pension funds will be included in an estate for Inheritance Tax purposes, point to the necessity of early estate planning.
Recent research suggests that over half of adults in the UK do not have a will. Falling marriage rates raise concerns for unmarried partners, as a surviving, non-married/non-civil partner will not receive anything under the Intestacy Rules which apply if there is no valid will in place.
Safeguarding Against a Loss of Capacity
The situation can be particularly acute if you have significant wealth or responsibilities, whether through your personal or business endeavours. Lasting Powers of Attorney can assist your family and other interested entities to reduce disruption in very trying times.
The two different types of lasting power of attorney are:
• Lasting power of attorney for health and welfare: which gives your attorneys authority to make decisions about your health and welfare if you have lost capacity to make those decisions for yourself. This can include (but is not limited to) decisions such as where you might live if you are unable to stay at home, your daily diet and routine and/or your medical care. You can also choose whether or not you are happy for your attorneys to make decisions about whether to accept or refuse life-sustaining treatment on your behalf.
Loss of capacity is not just an issue for older people. It can happen to any of us, at any time.
• Lasting power of attorney for property and financial affairs: which allows your attorneys to decide how your financial affairs are managed. It will specifically give your attorneys the authority to pay bills on your behalf, open, close and manage your bank accounts, claim, receive and use your benefits, pensions and allowances, and even assist in selling your house, if required. If you have an interest in a business, it may be
Authored by: Fiona Turner (Partner) and Lottie Tyler (Legal Director) - Weightmans’ Family Team
prudent to have a separate property and financial affairs lasting power of attorney which is limited to dealing with your business interests. Your attorneys can act under the property and financial affairs lasting power of attorney with your consent if you have mental capacity or without your consent if you lack mental capacity.
Moving in Together
As a relationship develops and becomes serious, here is a checklist of issues to consider:
• Purchasing property: If you are purchasing a property with others, you need to give careful consideration to how that property should be held. You might purchase a property with your partner, with a family member or friend, or through a company or trust structure. Specialist legal and tax advice is required in all of these circumstances
• Cohabitation agreements: Not every relationship involves marriage, but that doesn’t mean your financial interests shouldn’t be safeguarded. If you’re living with a partner, a cohabitation agreement outlining how assets and financial responsibilities are shared or divided can be invaluable.
• Prenuptial and postnuptial agreements: If you’re planning to marry or enter into a civil partnership, or indeed have already tied the knot, a tailored pre or post nuptial agreement can clarify financial arrangements and protect assets in the event of divorce or civil partnership dissolution. These agreements provide transparency and reduce the potential for conflict should your relationship breakdown.
The Supreme Court’s decision in Standish, handed down in July 2025, grappled with a common scenario when wealth acquired prior to a relationship or from a source outside of a personal relationship, held by one party, is transferred to the other spouse, a step often considered as part of a plan to structure wealth for estate planning purposes. The case shines a light on why it is essential for estate planning professionals
and family lawyers to collaborate and work together in these situations so that the impact of relationship breakdown is identified and minimised.
• Engagement rings and divorce: The status of engagement rings can become contentious in divorce proceedings in the light of their value and/or origin. Generally considered gifts, the ownership of engagement rings may be influenced by factors such as family heirloom status or conditional gifting. It’s important to understand how such assets would be treated and to put any safeguards in place.
loyalty and understanding that family members can add to the management and ownership group.
Family businesses also come with the heightened risk that family discord or marital breakdown can have a potentially direct damaging effect on the business, making decision making and the passing of ownership more difficult than might otherwise have been the case.
Business owners, particularly those in family-owned entities, need to give careful consideration to the structure of their enterprise and anticipate how they may be impacted on divorce or civil partnership dissolution. Governance documents, including shareholders agreements, articles of association, coupled with pre or post nuptial agreements, can be invaluable.
Inheritance and Other Influxes of Wealth
Living Abroad with a Partner and Family
International relocation with a partner or family introduces additional legal considerations, including jurisdictional issues for any legal proceedings, tax considerations, immigration and child arrangements if you have started a family, and the recognition of legal agreements across borders. It’s essential to seek legal advice to identify and navigate these complexities.
Trusts and Business Interests
High-net-worth individuals often have complex financial portfolios, including trusts and business interests. Legal advice is required, as well as advice from accountants and wealth advisers, to help you determine the right structure for you, and understand the implications, from both a financial and personal perspective.
All business owners have families and family concerns, but not all owners bring their family members into share ownership with them. When they do, this can add real value and strength to the family business, with the ties of
Inherited assets can be a point of contention in divorce and dissolution settlements. How they are treated can vary based on factors like co-mingling with matrimonial assets. Understanding how inheritance is dealt with on relationship breakdown is crucial for effective estate planning and asset protection.
If wealth is being passed down through family, your family members will inevitably take advice from their private wealth advisers, including accountants, tax advisers, wealth planners and private client solicitors. Another common scenario might be the sale of a business.
In either situation, it is vital that family law advice is not ignored. How the receipt of wealth before or during a relationship or marriage might be treated if there were a future relationship breakdown must be carefully factored in, with particular consideration given to pre or postnuptial agreements.
In summary, it’s critical to be proactive, not reactive. Working with the right team of professionals at the right time can identify potential risks and offer solutions that align with your goals and help you to build a secure foundation for your future.
Less focused on scoring points, more focused on limiting damage: the best divorce lawyers of the future will still need formidable legal skill, but they’ll also need a sophisticated grasp of attachment, trauma, child development, family dynamics and the psychology of conflict, because in a society increasingly shaped by more varied family forms, harsher financial strain, greater public scrutiny and a growing preference for resolving disputes outside court, good family lawyers will be those who can combine legal precision with emotional intelligence. In simple terms, their job will be to help people end relationships without wrecking themselves or their children in the process.
From a mental health standpoint, separation and divorce are rarely experienced as straightforward legal events, they’re often relational ruptures that reactivate much older emotional injuries in even otherwise wellfunctioning adults. When the attachment bond is threatened or broken, many individuals don’t respond with calm rationality, they respond with protest, withdrawal, collapse or aggression, and it’s within that psychological reality that divorce lawyers are required to work. They’re often the first professionals to engage closely with individuals who are psychologically flooded, and for that reason alone the profession requires far greater emotional literacy than it has traditionally acknowledged. A purely adversarial model of family law risks misunderstanding the behaviour
it encounters, because what presents as hostility may actually be panic; what looks like indecision may be trauma; and what appears to be a disproportionate dispute over finances or arrangements for children may be carrying a deeper struggle around abandonment or control.
Emotional intelligence, in this setting, should be understood as an advanced perceptual and regulatory skill, involving the capacity to respond in ways that reduce rather than magnify dysregulation. A high-EQ lawyer takes on an unspoken moral responsibility for a client knowing that, under the circumstances, that client is likely less able to think clearly about their own mental state, never mind that of the other person.
That loss of reflective capacity is central to many high-conflict separations, because the parties often become organised around rigid narratives of blame and injury, nuance drops away, and each interaction is interpreted through the lens of threat. One person may adopt a pursuer position, escalating contact and demanding reassurance, responsiveness or compliance, while the other adopts a distancing position, reducing communication and becoming increasingly emotionally inaccessible. These attachment-based dynamics can quickly become self-reinforcing: the more one pursues, the more the other withdraws, the more the other withdraws, the more the first escalates, and a lawyer who lacks psychological understanding may treat these patterns as merely tactical, whereas a lawyer with better training may recognise them as dysregulated relational systems in action.
Children’s cases are especially vulnerable to these dynamics, because disputes that appear to concern schedules, handovers or schooling are frequently saturated with symbolic meaning. The conflict is no longer only about arrangements, it’s about parental identity, fears of replacement, anxieties about relevance and other unresolved injuries. Under these conditions, the child can become the psychological site onto which adult needs are projected, which is one reason better training in child development and family systems is so necessary.
A further area requiring development is the lawyer’s own self-regulation, since family practitioners work in environments saturated with emotional intensity, and clients may unconsciously recruit them into rescuing, retaliatory or overprotective roles. Without robust self-awareness, lawyers can become captured by those dynamics, acting from identification rather than judgment
– training should, therefore, include not only how to read clients, but how to monitor one’s own susceptibility to alignment with destructive narratives.
This matters even more in a cultural context where psychological language has become widespread but imprecise. Terms such as “narcissist”, “trauma”, “gaslighting” and “toxic” now circulate freely in public discourse, some used accurately, many not. Lawyers increasingly encounter clients who narrate their relationships through borrowed clinical vocabulary, which creates a particular challenge, because the practitioner must remain open to genuine harm while resisting the temptation to accept every psychological formulation at face value.
The movement towards non-court dispute resolution also increases the value of these skills, because mediation and negotiated settlement require a degree of emotional containment and cognitive flexibility that many distressed clients struggle to maintain. A lawyer trained only in adversarial combat may struggle in that environment, whereas a lawyer who can recognise when dysregulation is making resolution impossible is likely to serve the client better. Emotional intelligence doesn’t replace legal strategy, it sharpens it by aligning legal intervention with psychological reality.
In time, the strongest family lawyers may be those who can work comfortably within a broader multidisciplinary model, because family breakdown is simultaneously legal, emotional, and financial, and no single profession can hold all of that equally well. But lawyers who understand enough psychology to collaborate effectively with mental health and safeguarding professionals will be at a distinct advantage, they’ll make fewer interpretive errors, protect children more effectively and help clients make better decisions under pressure.
From a psychologist’s perspective, then, the argument is straightforward: divorce law deals every day with people in states of grief, threat and dysregulation, and a profession working so close to intimate rupture can’t rely on technical knowledge alone. For the next generation of divorce lawyers emotional intelligence isn’t ornamental, it’s a core professional competency. Without it, lawyers risk escalating distress they should be containing, but with it, they’re better placed to support outcomes that are not only legally sound, but psychologically safer and more sustainable.
Tackling tricky legal questions, complex transactions and difficult conversations for over 300 years.
With confidence. With consideration.
With care.
www.hunterslaw.com
“DOES ONE SIZE FIT ALL?”
THE EFFECTIVENESS OF MEDIATION IN CONTENTIOUS FAMILY MATTERS
Encouraging engagement in mediation can often prove highly effective - saving time, reducing costs and enabling parties to resolve matters in a more constructive and respectful manner. Nonetheless, its increasing prominence invites closer scrutiny. How should practitioners encourage meaningful engagement when clients fear that the process may falter, exposing them to litigation after already committing significant time and resources? And, more fundamentally, can mediation operate as a
“one size fits all” solution, or is such a notion inherently flawed?”
For more than a decade, there has been increasing recognition that non court dispute resolution (NCDR) can deliver significant benefits to separating families. This found concrete expression in the introduction of Mediation Information and Assessment Meetings (MIAMs) and the 2014 requirement that parties must attend a MIAM before issuing most types of family proceedings. The expectation that clients will explore a form of NCDR, such as mediation, was reinforced by the 2024 amendments to the Family Procedure Rules, designed to strengthen the MIAMs process and reduce the extensive use of exemptions. These amendments introduced mandatory Form FM5, requiring parties to set out their position on NCDR. The rules also
give the court power to suspend the court timetable where the parties have not attempted NCDR, to allow them time to do so. MIAMs are now an established feature of the family justice landscape, encouraging couples to engage with mediation and other forms of NCDR at an early stage.
undertaken. These safeguards include a detailed exploration of each party’s psychological and physical safety during the mediator’s individual intake meetings, the use of shuttle mediation so that parties do not have to be in the same room, and the option of conducting sessions remotely. Mediators may also be selected for their particular expertisefor example in identifying and managing cases where abuse manifests in less overt forms, such as financial abuse or coercive control - or their skills as a trained therapist. In some cases, a further protective measure may involve lawyers attending mediation sessions, which can reduce the risk of a vulnerable party being disadvantaged - albeit with cost implications arising from additional legal fees.
However, does a generalised push towards mediation risk overlooking the fact that it will not be appropriate - or effective - in every case?
Questions of suitability most frequently arise in cases involving alleged domestic abuse - an issue expressly considered as part of the MIAM assessment. It is well recognised that mediation will not be appropriate in every such case and one of the key principles of mediation is that it must be safe - both for the clients and the mediator. There are a range of safeguards that may enable parties to engage safely and effectively in mediation where abuse is alleged, provided careful assessment is
These safeguards can form an important part of how mediation is presented to clients, offering reassurance that it may be possible to resolve matters out of court even where domestic abuse is alleged, and of course, it is voluntary, so if a client feels uncomfortable, they can withdraw at any stage. However, the mere availability of mediation in such cases does not mean that it should invariably be promoted. Where one party is unwilling to engage meaningfully or uses mediation as a further mechanism of abuse or control, the vulnerable party risks enduring a process that is emotionally demanding, only to emerge no closer to resolution and effectively back at the starting point.
Authored by: Sophie Wilson (Associate, Family) and Joe Hopkins (Paralegal, Family) - Forsters
With these concerns in mind, how do we encourage clients that participating in mediation may be helpful? What, in practice, incentivises parties to engage meaningfully in a voluntary mediation process when either party may withdraw at any stage, bringing the process to an abrupt end?
One response is that time spent in mediation prior to the issue of proceedings is not wasted. Even where mediation does not result in settlement, it can assist parties in agreeing interim issues and developing a clearer understanding of one another’s priorities, concerns and underlying motivations, thereby placing them in a stronger position to negotiate and compromise should the matter later proceed within the court process. In addition, the confidential nature of mediation enables parties to advance proposals or concessions that they might be unwilling to articulate in open proceedings. This confidentiality can facilitate a more exploratory approach to settlement, without the risk that provisional offers are subsequently deployed as forensic leverage. If proceedings were issued at the outset, such insight into the other party’s negotiating position may never have emerged.
In financial remedy cases, mediation can also play a valuable role in facilitating the early collation and exchange of financial disclosure. Mediation allows parties to adopt a more flexible approach: they can agree realistic timetables, determine the format in which disclosure will be
provided, and space mediation sessions in a way that reflects their emotional readiness to engage. For some clients, this flexibility alleviates the pressure associated with imminent procedural deadlines. Where court proceedings are not running in parallel, parties are able to progress at their own pace and in a less adversarial atmosphere, free from the escalating tension and tactical aggression that can accompany court driven timetables and looming deadlines.
in some areas, involving professionals such as IFAs, therapists or parenting coordinators within sessions, or incorporating child inclusive mediation to ascertain the children’s views and inform the parents’ discussions. This adaptability ensures mediation can respond to differing circumstances to achieve the best results for clients rather than follow a rigid formula.
This approach is not without risk. Mediation is dependent on both parties being willing to engage constructively and to maintain momentum. Where one party is not seeking a genuine resolution but instead uses the mediation process strategically to delay progress, its utility quickly diminishes. This risk is particularly acute in cases involving financial abuse, where it may be in one party’s interests to prolong mediation in order to extend the period during which the other has restricted access to financial resources. In such circumstances, mediation is unlikely to be appropriate. Drifting timetables and the absence of enforceable deadlines can be reasons why applications for financial remedies are issued while mediation attempts are still ongoing.
Mediation today is not a one size fits all process. Its strength lies in its flexibility, allowing it to be tailored to the needs of each family, whether that means mediating nuptial agreements, adapting the process to take place during a private FDR as is being trialled
The nature and effectiveness of mediation will also depend on the individual mediator appointed. Some mediators may be willing to work in cases involving allegations of abuse in certain circumstances, provided appropriate safeguards are in place, whereas others will consider such cases unsuitable and decline to mediate. Similarly, mediators differ in their style: some will be more robustproactively challenging unconstructive behaviour and adopting a firm stance to keep a dialogue ongoing, while others may take a more facilitative and less interventionist approach. The choice of mediator can therefore be critical to the prospects of a successful outcome. Where it is safe for both clients, a mediator is appropriately skilled, respected by both parties, and attuned to the particular dynamics of the relationship, mediation can provide a constructive forum in which parties are able to make meaningful progress, even in complex or sensitive cases.
As practitioners, we must recognise that there will be circumstances in which mediation is not the appropriate forum. Where a client is particularly vulnerable, court proceedings may be required to impose structure, safeguard progress and ensure appropriate protections. Likewise, where one party is unwilling to provide appropriate financial disclosure, mediation is unlikely to offer an effective route to resolution, given its voluntary nature. Whilst mediation can confer significant benefits, it is not a universal solution. We must therefore remain alert to both the potential benefits and the potential risks in advising clients to mediate. Suitability will always turn on the facts of the individual case. However, when used in the right circumstances, mediation remains an invaluable tool - capable of resolving disputes effectively, saving considerable time and costs, and preserving a more constructive and respectful post separation relationship between the parties.
