Keeping things private

When individuals separate one of the concerns that often arises is privacy. After all, many couples do not even talk together about their finances, so the thought that their details may become public knowledge is a real concern; even more so if they happen to be a celebrity or well-known business person.

The Family Court does not guarantee privacy or confidentiality – and whilst there is generally more focus on cases in London where many more high profile cases take place, word can quickly spread to regional courts and lead to a sea of paparazzi around. The judges can allow the media into a final hearing where the evidence and judge’s decision can be published. There are usually reporting restrictions imposed to try and protect identification especially where there are children and/or sensitive business information but individuals’ details will have been revealed.

So what can we do about it? The parties can try and resolve matters through Collaborative Law which is where both parties seek to resolve matters around the table with the lawyers and sign an agreement not to pursue litigation through the Courts. As Collaborative Lawyers, we work as hard as possible with the clients to try and reach an agreement as the consequences of not doing so will mean that both parties have to instruct new lawyers to pursue the matters through the court process.

The parties can mediate with or without lawyers.

However, perhaps the most secure method is Arbitration, which is a form of private out-of-court resolution. It is an alternative to court-based litigation for those that are unable to reach an agreement.

There are significant advantages for the couple involved as they can pick the timescale, venue and procedure. They will chose their “judge” – usually a retired judge or senior barrister. At present, the court system is under-resourced, leading to significant delays in processing paperwork, and additionally understaffed, resulting in multiple cases being listed before overworked judges who do not have sufficient time allocated to them to deal with matters as effectively as they would wish. This can often lead to frustration and increased costs.

At Arbitration your chosen judge will be available for the whole day, your matter will be heard in private with no media having knowledge of the occurrence and the couple receive a binding decision which is then ratified by the Family Court in private later without the need for either party to attend Court.

The disadvantage is that both parties have to agree to proceed by way of Arbitration and this can in certain circumstances be a stumbling block as one party may consider it to be in their interest to have the threat of court-based litigation. Whilst the individuals will need to pay for the judge, you can at least guarantee that they will be a family law finance specialist and have read the papers and have the time to give a decision. In a world where time is precious this is a sensible option for many.

I will always encourage Arbitration and other alternatives to Court litigation including private Financial Dispute Resolution (FDR) hearings which, similarly to Arbitration, involve the parties choosing a “judge” who will then seek to give an indication to the parties as opposed giving a decision, allowing the parties to negotiate a solution.