Is choosing not to negotiate in your divorce worth the risk?

In May 2019, the rules in family cases were changed to encourage individuals in financial remedy proceedings as part of a divorce to actively negotiate. The risk of not doing so is now that an order for costs could be made against you. 

It is natural to aim for ‘the best’ outcome but this should not be to the exclusion of properly considering and responding to offers of settlement or suggestions to use alternative dispute resolution options from your former partner. Indeed, if you refuse all efforts to compromise your case, the Court may determine that you should be penalised with an order to pay or contribute towards the other person’s legal costs.

By July 2020, the impact of this change was clear. In the case of OG v AG, the judge ordered the wife to pay the husband’s costs because she had taken an “unreasonable and untenable” stance towards negotiating and he said that “I hope that this decision will serve as a clear warning to all future litigants; if you do not negotiate reasonably, you will be penalised in costs.”

So, what does this mean?

Firstly, before making an application to the court for financial remedies proceedings, you should think about alternative methods to reach an agreement with the other person. We will advise you about options such as mediation, collaborative law and arbitration which can be cheaper and quicker than making an application to the court. In many cases, it is a requirement to attend a Mediation Information and Assessment Meeting (“MIAM”) to find out about family mediation before you can issue your application.

Secondly, when there is no alternative but for the dispute to be put before a court, negotiations should continue, whether that is by letter, at Court hearings such as the Financial Dispute Resolution Hearing or by seeking an adjournment to use an ‘out of court’ option such as mediation to consider one or more points in the case.

The Covid-19 pandemic has led to an even greater focus on out of court settlement processes by the judges, solicitors and our clients because of the increased delays and remaining practical problems associated with remote court hearings. 

Elizabeth Ford, a specialist family law solicitor and mediator at Phillips, said: “There is now a real risk that failing to properly consider an offer or compromise will lead to a financial penalty. It is equally important to remember though that there are other advantages to settling your case such as avoiding the cost and difficulties of a final hearing, retaining the ability to communicate with your former partner about any children you have together and enabling you to make a fresh start after a naturally difficult period.”  

The highly experienced and knowledgeable solicitors at Phillips are on hand to guide and advise you about the best approach to negotiations and important information that you should have available before considering whether to accept an offer. It is strongly recommended that if you are considering accepting an offer to settle your case, you take independent legal advice before doing so.

For more information, contact Elizabeth Ford by telephone on 01256 854628 or by email at [email protected]

Alternatively, click here to go to our contact page.

Our solicitors, mediators and staff are able to work remotely so Phillips Solicitors and Haymarket Family Mediation remain fully open for business.  Appointments can take place by Zoom or other virtual platforms so you can be assured that we are able to meet your needs. We will discuss any questions you may have about this in advance. During these difficult times, our Town Gate office in Basingstoke is temporarily closed to visitors unless by prior appointment and when meeting in person is essential.



This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.