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The wealthy used to choose private health care and private education, but now private divorce is also an option.
Thanks to extreme delays in waiting for court dates and unwanted publicity once they get them, couples in England are turning in greater numbers to private arbitration to help them sort out the details of their divorce, lawyers say — in some cases, in the hundreds of millions. Pounds at stake.
This process, which takes place in a private and simpler setting than a court, is usually presided over by a senior lawyer or retired judge. The result is binding.
“It's coming up more and more because the court system is completely overburdened,” said lawyer Rebecca Cockroft, a partner at Fladgate.
There were 130 arbitrations over divorce financial settlements in the year through mid-December 2024 versus 89 in all of 2023, according to the Institute of Family Law Arbitrators. Barrister James Roberts KC, president of the Family Law Bar, predicts that this number, which currently represents only around 1 per cent of contested divorces, will continue to increase thanks to a change in court rules in April 2024, which means parties must Try to come up with a solution. Out of court first
London has gained a reputation as the “divorce capital” of the world. Sheikh Mohammed bin Rashid Al Maktoum, the ruler of Dubai, reached a £550 million settlement with Princess Haya bint Al Hussein in the Supreme Court in 2021, while high-profile divorces such as those of Prince Charles and Diana, Princess of Wales, have been widely covered. By the media and they got great fame for their lawyers.
The advantages of going private are available to all who can pay but are particularly attractive to the wealthy: speed, privacy, and choice of arbitrator.
Private attorneys have long complained about the parlous state of the court system. Although the number of days judges work in the Supreme Court's Family Division, where the highest-value divorce cases are heard, has barely changed since 2011, the time devoted to resolving big-money disputes has declined, lawyers say.
“If you make a money order, that's a good period of four months…for your first appointment,” Cockcroft said, then “a few months” for a settlement negotiation hearing and “several more months” for the final hearing.
A divorce through the courts can take up to two years, but in arbitration it can take as little as six months, says solicitor Alexis Campbell KC, joint head of chambers at 29 Bedford Row.
As well as the obvious emotional advantages of reaching a faster resolution, it can also be cheaper: although you need to pay the arbitrator, as well as your solicitor, Campbell estimates that a divorce in court could “easily” cost between £100,000 and £100,000. British pounds. 2 minutes. By speeding up the process, arbitration reduces the chances of legal letters, extended arguments, and costly revaluations of assets.
The greater trend towards judicial openness means that arguments about finances and relationships in the family courts are now more accessible to the press and public – the kind of attention that most wealthy families would rather avoid.
“Ninety-nine percent of my clients don't want to think that anyone could walk in and hear what's going on in my divorce,” said attorney Jane Kerr, a partner at Kingsley Napley. “(The arbitration) is completely private and no one can come unless they are invited.”
Although the choice of arbitrator should be acceptable to both sides, less well-off couples may fear that their partner may have chosen an arbitrator more suitable for them. Acceptance of arbitration has been slower than some expected, according to Kerr, perhaps in part because it lacks the majesty of the court system. It's also an uncommon choice.
Campbell, who serves as both a judge and an arbitrator, said the latter has much less work pressure than the former: the judge will only know the evening before their cases and so can struggle to be up to full speed, but as an arbitrator “they have my full attention.” “It is an immeasurably improved system.”
The government has encouraged forms of “non-judicial dispute resolution” such as arbitration to relieve pressure on the court system.
The British Ministry of Justice said the government wants to promote arbitration “to help people and businesses avoid the time, cost and stress of court battles.”
