In April 2024, the Family Procedure (Amendment No 2) Rules 2023 became effective. These promote early resolution of private family law arrangements through non-court dispute resolution (NCDR). LGBTQ+ parties stand to gain the benefits in family disputes in line with those available to heterosexual parties in England and Wales, but NCDR may also play an additional beneficial role due to the increased flexibility and privacy afforded to the couple and decision makers, and benefits afforded to those who reside abroad.
Flexibility of NCDR can play a particularly beneficial role. The court is the domain of judges who may have limited knowledge of the differences in LGBTQ+ families and how these may play out, such as how assets and caregiving roles are divided. Research into the support networks surrounding LGBTQ+ families showed 'considerable complexity' compared to those of heteronormative couples (Frost et al, 2016). Garood (2024), writing for The Resolution Blog, noted that even though there had been some improvement in the treatment of LGBTQ+ family law disputes, 'services still make exclusionary assumptions… without recognising minority stressors or the impact and legacy of concealment and stigma'. NCDR affords the parties in an LGBTQ+ family law dispute the opportunity to appoint mediators with expertise in LGBTQ+ family law. Thus, there can be greater potential for an outcome that is fair to the parties due to the greater understanding available
Further, families who engage with NCDR may be able to formulate an agreement based on their circumstances. The case of Re G (Children) [2014] EWCA Civ 336 is an example of a case in which the courts were shown to be found lacking when grappling with the realities of LGBTQ+ families. The parties were a lesbian couple, separated, where the appellant had donated her fertilised eggs to her partner (the respondent) who had then carried and given birth to their twins. The respondent was the legal mother, and the appellant the genetic mother. The Court of Appeal quashed the initial judgment that the appellant should not be awarded a shared residence order. This was given on the basis that 'the Court of Appeal felt that the judge below had given insufficient consideration to the appellant’s importance as the children’s genetic parent' (UK Human Rights Blog, 2014). In this case, NCDR may have provided a more satisfactory outcome due to the potential to involve experts. However, as addressed below, there are still limitations on what NCDR may achieve when it comes to issues surrounding legal parenthood.
The privacy afforded by methods of NCDR such as mediation and arbitration can also particularly benefit LGBTQ+ parties in family law disputes. LGBTQ+ couples are more likely to have experienced discrimination based on their sexuality (Neilands et al, 2019). Therefore, the assurance of privacy while settling family disputes may have psychological benefits, as NCDR methods afford more control and flexibility over the resolution process. Practical benefits also flow from privacy: LGBTQ+ families are more likely to have used surrogacy, IVF, or adoption to have children, something which has repeatedly attracted unwanted attention in the media. LGBTQ+ families may be unwilling to reveal their sexuality and family dynamics openly due to the risk of discrimination or violence against themselves or their children. Therefore, NCDR can play a role by allowing LGBTQ+ family disputes to be resolved in safety.
Another challenge facing LGBT+ couples is that their marriage or civil partnership may not be recognised in other jurisdictions. Enforcing settlements and orders in family disputes may present a challenge for any party in an international dispute due to the difficulties of enforcement across different jurisdictions. It presents a particular problem to divorcing LGBTQ+ couples, as a divorce, and any ruling relating to it, is unlikely to be recognised or enforced where the marriage never existed in law. In instances where a party wishes to enforce a decision, NCDR may play a role. Arbitration awards can provide a mechanism for divorcing couples in countries that are signatories to the New York Convention, with the security that legal recognition of their former partnership is not necessary to enforce a settlement. Article III(1) of the Convention states that signatory jurisdictions shall 'recognise arbitral awards as binding and enforce them' (United Nations, 1958). This may, therefore, present an opportunity to bypass the difficulties inherent in an international family dispute involving LGBTQ+ families.
However, it is also important to note the limitations on NCDR’s role in LGBTQ+ disputes. The Supreme Court’s ruling in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 has also made the law for transgender parties in family legal disputes much more uncertain. Where gender recognition or sex-based rights form part of the case, NCDR may not be sufficient, and the legal issues may need judicial determination. In disputes involving third parties, for example, in a surrogacy dispute, NCDR cannot make orders which bind all the parties involved. Only the courts have jurisdiction to make such orders. Additionally, NCDR cannot confer or extinguish legal parenthood. Parental orders (under s.54 of the Human Fertilisation and Embryology Act 2008) and adoption orders can only be made by a court. NCDR agreements on parenting reached outside court must be codified in a consent order, which only the courts can make. Given the centrality of parenthood to family law and the common use of surrogates and adoption in LGBTQ+ families, NCDR may be too limited for some disputes.
In summary, NCDR has the potential to play a significant beneficial role in LGBTQ+ family law disputes. Due to discrimination and a lack of understanding of the complexities of such disputes, the privacy and flexibility of NCDR may prove beneficial to LGBTQ+ families. Additionally, arbitration may play a role in easing the difficulties of enforcement of orders where the parties reside in different jurisdictions. However, there are limitations where third parties and legal parenthood are involved, and the evolution of the law regarding transgender rights has made the future of NCDR in these cases uncertain.
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