A public and bitter divorce battle, there is another way

“Embroiled in a bitter divorce battle” “estranged wife wins bitter £1.4m divorce battle…”

We have all read the tabloid headlines as another super-rich or celebrity marriage ends. High-profile divorce cases come with their own unique issues (scrutiny by the public and media and complex assets to start with) but they do not have to end in a bitter, drawn out, not to mention expensive, court case.

We asked Julian Hawkhead, Senior Partner, to join us on the blog to look at alternative options to help high-profile couples keep their marriage and their business out of the public domain.

This weekend I read how a certain celebrity baker and his estranged wife were destined for a courtroom showdown.

According to the article, friends of Mrs Alex Hollywood said that she was finding the whole process of divorcing her husband Paul exhausting and conflicts over money distressing. No doubt a feeling shared by both parties involved.

There are plenty of salacious rumours around the causes of the marriage breaking down, allegations of scenes in car parks and abuse being thrown around. None of this is unusual, anger is a key stage of the grieving process and to vent emotion is healthier than bottling it up. It enables you to move on with your own life. It is, of course, difficult when every incident, every alleged insult thrown is aired in the public domain.

However, what particularly caught my eye was the suggestion that mediation had failed, and the couple were destined to end up in Court. Another newspaper reported it would be an “epic court showdown”. Now I don’t tend to rely on this media source for a true account of what is happening in the world.  However, what disappointed me but did not surprise me, was that the media appeared to present the stark choices of mediation or an epic courtroom battle. Whereas this is simply not true and there are lots of different options available.

Any divorce litigation is exhausting, expensive and often acrimonious. Lawyers are trained to seek solutions but when agreements cannot be reached, the next step is to achieve your desired outcome in an arena where somebody else, most commonly a Judge, decides that outcome for you.

So, you embark on building your case, identifying issues where you can discredit the other party, sling enough mud and some of it is bound to stick and gather evidence that supports your arguments that what you are asking the Judge to decide upon is perfectly reasonable.

It can turn into a war of attrition, trench warfare where you are firing your best weapons at each other and it can sometimes get you the result you wanted. However, if you are media-worthy it will be ventilated, warts and all, in the public domain.

So, what other options exist where a negotiated settlement seems to have hit a wall?

Firstly, there are private FDRs but what is an FDR?

An FDR is a Financial Dispute Resolution hearing which divorce couples would usually come upon if they found themselves in financial court proceedings because of their divorce.

At this hearing, a Judge will:

(1) consider all proposals made by both parties, even those made on a without prejudice (or private and off the record) basis

(2) listen to any further arguments in support of each party’s proposals

(3) will encourage both parties to put their cards on the table to identify what the issues are, what is and is not agreed and consider compromise as a better course of action to facing further costs and uncertainty

(4) express a view to both parties as to what the FDR Judge considers would be the outcome if the case was to be decided at a final hearing. This view is not a binding decision, it is merely an expression of an opinion, albeit carrying the gravitas of coming from a Judge. This should help the parties entrenched firmly in the view that they must be right, reach an agreed settlement.

These FDR hearings are what can otherwise be called Early Neutral Evaluations.

Early – because the intervention is at the earliest stage in a Court process once all the facts and figures are known (and importantly before a final hearing when a Judge does make a binding decision on both parties);

Neutral because that is what any Judge is expected to be and when you have two lawyers jousting and pronouncing that they are right, fair and reasonable and the other party is wrong then you need somebody neutral to help give an independent evaluation or assessment of what is a fair outcome.

However, avid readers of all things family justice will be aware that the Court system is under pressure. There are long delays in waiting for hearings in many Courts. Sure, there are reforms on the horizon particularly with the specialist Family Court programme that is being rolled out but will this succeed on a national level or will we just see pockets of success.

There is the risk in the meantime that the Judge you come before for your FDR is not an experienced family lawyer. They may have practised in a completely different area of law when they were a solicitor or barrister before becoming a Judge so their experience and ability to give you an informed opinion may be based on limited knowledge of the relevant law.

That is the context of FDR hearings within the Court system. Private FDRs involves the same process, but you go private, you pay for an experienced lawyer, often either a retired senior Judge or a practising senior barrister or solicitor to conduct the FDR hearing for you.

The venue is not a courtroom but a place of your choosing, it might be the barrister’s chambers or the lawyer’s offices or a completely neutral venue such as a dedicated meeting room or a hotel. Whatever the option, it is infinitely more comfortable than being in a Court building surrounded by other litigants.

You also get as much time as you want. Your Private FDR Judge will dedicate their entire day to your case, giving you as much time to negotiate as you want or as much time in the hearing as you need.  In the Court system, you are constrained by opening and closing times and by the fact that the Judge has a full list of other cases to get through leaving your time restricted.

In some courts, one often finds several FDR hearings listed at the same time in the hope that some will settle easily. This leaves the Judge to juggle a number of cases, all with different facts and figures where their ability to give the matter full attention is then naturally impaired.

Most importantly the private FDR is private, it is away from the public gaze. One often finds the media wandering around the Central Family Court in London looking for a story or you run the risk of other litigants in Court seeing you. A Private FDR gives you a truly confidential and safe place to sort out your issues with the other party. You are paying for it but with that, you get a better-quality experience, and this must increase the prospects of you reaching a financial agreement.

In the next instalment, Julian will look at arbitration, another route to resolving divorce financial issues in private.

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