With January the top month for divorces, couples are increasingly looking to arbitration to avoid lengthy court battles, says Catherine Thomas.
Nobody plans to get divorced. However, the fact is that more than half of marriages end this way, with many people facing lengthy court battles with their former spouse, to either defend or claim what they feel is rightfully theirs.
Traditionally, those couples who could not agree what should happen to their finances on divorce had to seek a solution through the courts which, like the much maligned NHS, is stretched to breaking point. The result is that those seeking to end their marriage and move on can be faced with a drawn-out legal process, spiralling legal costs and a lack of control over when and where their case will be heard.
The courts are suffering from a two-pronged attack: The funding of legal aid for family cases has recently been reduced to almost extinction, forcing those who can’t afford to pay for legal advice to stumble their way through a maze of complex law and procedure. The courts themselves have also had their funding significantly cut, leading to a loss of vital and experienced staff. There are therefore insufficient judges and court staff to deal with court’s usual workload and the influx of divorcees representing themselves and making (understandable) errors is clogging the system even further.
It is, unfortunately, not unusual for a couple to have to wait many months for a hearing date as a result of the court diary being so full. After weeks of preparation for the long-awaited hearing the couple and their respective legal teams (who will be charging by the hour) spend several hours waiting in the stuffy, airless court building to be told there is no judge available to hear their case that day. They go home no further forward to face a mounting legal bill.
The court system cannot be expected to cope under such mounting pressure and, as a result, those trying to cope with the breakdown of their relationship are faced with a system that can draw out one of the most emotionally difficult periods of their life. This is why at Vardags we welcomed with open arms the introduction of family law arbitration in England and Wales last year.
Arbitration has for a long time been used in a commercial context by companies that prize confidentiality and wish to avoid lengthy, expensive and inconvenient litigation. Separating couples can now seize all those benefits for themselves and avoid the pitfalls of a court system creaking under its own workload.
The dawn of family law arbitration gives couples, for the first time in England and Wales, the option of a private family law system. Much like those who opt for private health care, they can remove themselves from a struggling public system, and thus help alleviate the pressure on that system.This bespoke private legal process is moulded around their family and their commitments. They no longer have to be crow-barred into a standardised court timetable whilst trying to juggle work and the demands of a family. Avoiding the delays of the court system will often mean lower legal costs on both sides.
The couple are able to choose when and where the hearing will take place and the final settlement or judgment is kept firmly private and out of the public arena. Each party is represented by the lawyers of their choosing who argue their case in front of the specially-selected arbitrator (often a retired judge). The couple are encouraged to reach a settlement even once the arbitration has started, but if the arbitrator does have to make a final decision, the parties will be bound by it and it will usually be turned into a court order.
We advised in the first ever concluded arbitration in this country with a retired High Court family judge appointed as arbitrator and have since had a number of clients attracted to the possibility of a bespoke and confidential experience away from the many problems of the courts.
What can be seen is that an increasing number of people are deciding – as many have done in the matter of their health– to go private, taking control of their own legal destiny in search for a quicker, private and more controlled end to their relationship. In a world where the public (and therefore the press) are fascinated by the details of other people’s divorces, even if they are not in the public eye, it seems inevitable that the discreet and swift process of arbitration will increasingly be seen as a sanctuary for separating couples.