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The wealthy are accustomed to choosing private healthcare and private schooling, but now private divorce is an option too.
Thanks to intense delays in waiting for court appointments 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 divorces, say lawyers — in some cases, with hundreds of millions of pounds at stake.
The process, which takes place in a private location and is more streamlined than in a court, is normally presided over by a senior barrister or retired judge. The result is binding.
“It’s coming up more and more because the court system is completely overburdened,” said solicitor Rebecca Cockcroft, partner at Fladgate.
There were 130 arbitrations about financial settlements for divorces in the year to mid-December 2024 against 89 in all of 2023, according to the Institute of Family Law Arbitrators. Barrister James Roberts KC, chair of the Family Law Bar Association, predicts that this number, currently only around 1 per cent of contested divorces, will continue to increase thanks to a change in court rules in April 2024 that means parties must try to reach resolution outside court first.
London has earned a reputation as the world’s “divorce capital”. Sheikh Mohammed bin Rashid al-Maktoum, ruler of Dubai, reached a £550mn settlement with Princess Haya bint Al-Hussain in the High Court in 2021, while high-profile divorces such as Prince Charles and Diana, Princess of Wales, were extensively covered by the media and won significant 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 a choice of arbitrator.
Private-client lawyers have long complained about the parlous state of the courts system. Although the number of days judges sit in the family division of the High Court, where the highest-value divorce cases are seen, has barely changed since 2011, the time assigned to resolving big-money disputes has fallen, lawyers say.
“If you issue a financial application, then it’s a good four months . . . for your first appointment,” said Cockcroft, then “a few months” for a hearing to negotiate the settlement and “several more” for the final hearing.
A divorce through the courts may take up to two years but in arbitration it can be as little as six months, says barrister Alexis Campbell KC, joint head of chambers at 29 Bedford Row.
As well as the obvious emotional advantages of a swifter resolution, it can also work out cheaper: although you need to pay for the arbitrator, as well as for your lawyers, Campbell estimates that a court divorce can “easily” cost £100,000-£2mn. By speeding up the process, arbitration reduces opportunities for legal letters, extended arguments and costly revaluations of assets.
A greater drive towards judicial openness means that arguments over finances and relationships in the family courts are now more accessible to press and public — the sort of attention most wealthy families would prefer to avoid.
“Ninety-nine per cent of my clients would not want to think anybody could walk in and hear what’s going on in my divorce,” said solicitor Jane Keir, partner at Kingsley Napley. “[Arbitration] is absolutely private and no one can come in unless they’re invited.”
Although the choice of arbitrator needs to be agreeable to both sides, less wealthy spouses can fear that their partner has picked one more favourable to their side. Uptake of arbitration has been slower than some anticipated, according to Keir, perhaps in part because it lacks the perceived majesty of the court system. It is also an unfamiliar option.
Campbell, who acts as both a judge and an arbitrator, said there was much less workload pressure on the latter than on the former: a judge would only find out the evening before what their cases were and could thus struggle to be fully up to speed, but as an arbitrator “they’ve got my full attention . . . It’s an immeasurably improved system.”
The government has been encouraging forms of “non-court dispute resolution” such as arbitration to ease pressure on the courts system.
The UK justice ministry said the government wanted to promote arbitration “to help people and businesses avoid the time, cost and stress of court battles”.
