Going private: Opting out of the Family Courts
Q. I am about to start divorce and financial proceedings. Will these be affected by the current Covid-19 lockdown?
A. The Covid-19 paralysis has impacted on the courts as much as any other sector. Closure of whole court buildings, certain matters being deemed 'non-urgent' and cases adjourned to an undetermined future date have been the real-world impact of the current crises. This means that many separated couples trying to resolve their financial affairs through the courts are put on the back burner for many months. This in turn has created backlogs and unprecedented delays.
In response, many family lawyers and their clients are looking to opt out of the system entirely and turn to the 'BUPA equivalent'. Private settlement hearings or arbitration both have the advantages of the court process (an experienced, qualified decision maker and legal representation for both sides) but with added benefits of having the choice of the decision maker, setting your own timescales, choosing a venue and having the decision-maker's dedicated, undivided attention.
In some cases, parties may want to opt out of the court process temporarily to quickly deal with a particular pressing issue e.g. interim maintenance. Limited arbitration is becoming a popular choice in these instances. Alternatively parties may choose family arbitration to resolve the whole of the financial claims arising from the marriage. Arbitration is binding and the arbitral award made will be enforceable as a final court order. The benefits are speed, flexibility and access to a hugely experienced and qualified arbitrator of your choice.
For those looking to solve the whole case more informally than arbitration, a private settlement hearing presided over by an experienced barrister or retired Judge provides an excellent opportunity. Most practitioners who have taken clients through this process attest to the quality, privacy and dignity of the experience and point to high rates of success in settlement. The quality of the presiding 'judge' can often be far superior to what may be available in the public courts.
If agreement is reached at a private settlement hearing then this can quickly be converted into a binding court order.
Another advantage of opting out is that everything can be done remotely utilising the latest technology. This achieves the twin objectives of maintaining public health but also ensuring that the experience is almost identical to everyone being in the same room. Being able to effectively resolve your financial case from the comfort of your home, (virtually) alongside your experienced legal team, is an opportunity rarely seen before.
Whilst there is an added layer of costs with 'going private' it is always proportionate to the subject matter of the dispute and there is a clear non-financial advantage to the whole family in being able to resolve issues quickly and fairly. The alternative is the prospect of delay and the uncertainty as to when normality might return.
At Aaron & Partners, we have successfully steered our clients through these alternative processes during the Covid-19 emergency and we suspect that even as we return to normal, many more clients will want to opt out and choose their own path towards resolution.
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