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The rich used to choose private healthcare and private education, but now private divorce is an option again.
Thanks to long delays in waiting for court appointments and unwanted publicity once they do, couples in England are turning in large numbers to private mediation to help them sort out the details of their divorce, say lawyers – in some cases, for hundreds of millions. of pounds at risk.
The process, which takes place in private and is more organized than in court, is usually presided over by a senior lawyer or retired judge. The result is binding.
“It's getting worse because the court system is overburdened,” said lawyer Rebecca Cockcroft, a partner at Fladgate.
There were 130 alimony arbitrations in the year to mid-December 2024 versus 89 in all of 2023, according to the Center for Family Law Administrators. Barrister James Roberts KC, chairman of the Family Law Bar Association, predicts that this number, which is currently only around one per cent of divorces issued, will continue to grow due to changes in court rules in April 2024 which means parties must try to reach a settlement. out of court first.
London has made a name for itself as the “divorce capital” of the world. Sheikh Mohammed bin Rashid al-Maktoum, the ruler of Dubai, reached a £550mn settlement with Princess Haya bint Al-Hussain at the Supreme Court in 2021, while high profile weddings such as Prince Charles and Diana, Princess of Wales, were largely covered. through the media and gain significant reputation from 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 intermediary.
Private client lawyers have long complained about the messy state of the court system. Although the number of days judges spend in the family division of the Supreme Court, where high-value divorce cases are heard, has not changed since 2011, the time allotted to resolve capital disputes has fallen, lawyers say.
“If you issue a request for money, it will be good for four months. . . at your first appointment,” Cockcroft said, then “a couple of months” to discuss the fix and “several others” at the final meeting.
Divorce in court can take up to two years but mediation can take as little as six months, says barrister Alexis Campbell KC, joint head of chambers at 29 Bedford Row.
As well as the obvious emotional benefits of a quick resolution, it can also work out cheaply: although you have to pay for a mediator, as well as your own lawyers, Campbell estimates that a court divorce can “easily cost” £100,000-£. 2 min. By expediting the process, mediation reduces the likelihood of formal letters, extended negotiations and asset value revisions.
The move towards open court means that discussions about finances and relationships in family courts are now accessible to the press and the public – the kind of attention that many wealthy families would choose to avoid.
“Ninety-nine percent of my clients don't want anyone to walk in and hear what's going on in my divorce,” said attorney Jane Keir, a partner at Kingsley Napley. “(Mediation) is private and no one can enter unless invited.”
Although the choice of arbitrator must be acceptable to both parties, less wealthy spouses may fear that their spouse will choose one that is more favorable to their side. The uptake of arbitration is slower than expected, according to Keir, perhaps in part because it lacks the perceived superiority of the court system. It's also an unusual choice.
Campbell, who works as a judge and arbitrator, said that there is less work pressure in the latter than in the former: the judge will find out the evening before what their cases are and thus it is difficult to fully reach the speed. , but as a mediator they “gave me full attention . . . It is an incredibly sophisticated system.”
The government has been promoting “non-judicial dispute resolution” methods such as mediation to reduce pressure on the court system.
The UK Department of Justice said the government wants to promote arbitration “to help people and businesses avoid the time, cost and stress of court battles”.