Don’t apply to court!

There has been a spate of “celebrity” divorces reported over the last few days (John Richardson and Lucy Beaumont, Gogglebox-ers Stephen and Daniel Lustig-Webb, and even Greece’s Prince Nikolaos and Princess Tatiana), but the common thread in the reporting is that the separations are amicable.

This doesn’t particularly make for interesting media coverage (which possibly explains why the articles are relatively brief), but amicable is a term often used in the circles of divorce lawyers, and it is one I both see and use regularly. The reason for this is simple: amicable divorces are, generally, far more cost-effective and resolved more efficiently, and, as a result, they are typically less stressful for everyone involved. Amicable divorces are also more likely to mean that the parties retain an element of control over the outcome, thereby avoiding the risk of a judge making a decision which neither desires. Instead, the parties agree on an outcome, their lawyers prepare a consent order reflecting that agreement, and a judge approves that document to make it legally binding.

Of course, going through a divorce amicably is not always possible – not least because it takes two to tango. So, as reasonable as one party might be, it is impossible to be amicable if the other is entrenched in their position. Understandably, tensions are often heightened, and emotions run high. Historically, in those circumstances, the recourse would have been for one party to apply to the court for the judge to decide, following many months, tens of thousands of pounds and two or three hearings.

Sometimes, a court application remains appropriate; however, there is a far more attractive option which, oddly, is not utilised anywhere near as much as it should be. I speak of arbitration.

This link is a helpful starting point (https://ifla.org.uk/wp-content/uploads/Arbitrators.pdf), but arbitration is akin to a private court process. Parties choose who they wish to instruct to act as their “judge” (often a specialist barrister) and then agree on the steps to a trial, at which that judge makes a final decision.

There is a fee to pay to the “judge”, given the parties' control over the process (they can agree on what information and/or documentation is provided). Progress is often much speedier than through the overburdened court system, there can be significant costs savings to be made. Arbitration is also likely to be far less stressful. Instead of the court providing dates for documents to be provided and for parties to attend hearings in often uncomfortable court buildings, parties can agree on their own dates and locations.

Perhaps most importantly, the arbitration judge will not be under the same time pressures as court judges, meaning they are more likely to have read the paperwork in more detail—in turn making it more likely the parties will think any outcome has been properly considered.

Arbitration has been available for many years, but it is not used to the parties’ advantage anywhere near as often as it should. In most cases, this should be the first recourse when the parties aren’t amicable - or even where they are, but can’t agree on how finances should be separated. Perhaps it is not as widely utilised because there hasn’t been media coverage of celebrities going through arbitration; if that is the case, then it is unlikely to change soon, with arbitration processes remaining private (something which, in some circumstances, might be another advantage over the court).

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