Delays caused by court closures and rising numbers of litigants in person have fuelled a significant rise in “Bupa-style” private divorce hearings.
One family law firm has reported a threefold rise in family arbitrations in the space of a year and figures across England and Wales show a rise from 10 to 50 a year.
Couples are also resorting to private hearings called “financial dispute resolution” (FDR) appointments, where judges give them an indication of what they could expect if they go to court. Most then settle.
Sir Paul Coleridge, a retired High Court family judge of 14 years, who now does arbitration and FDR hearings, said: “The use of arbitration, both binding and nonbinding, is a no brainer. It is quicker than the hugely overstretched court system, more convenient because the parties choose the time and place, more civilised because it is more informal and cheaper overall because it takes place much earlier in the whole process and before costs have rocketed.”
Hall Brown Family Law, a Manchester law firm, claimed that more spouses now favoured arbitration and FDRs because they believed it was quicker, cheaper and more private.
Andrew Newbury, a partner with the firm, said that there had been a marked and sudden increase in couples choosing to settle divorce disputes by arbitration rather than through the courts.
“They are entirely comfortable with the idea of paying to expedite their divorces in much the same manner as they might use private healthcare,” he said.
It is argued that arbitration offers more certainty both in terms of scheduling and the outcome. The government’s court closures scheme was one reason for the rise in takeup. A second was cuts to legal aid, meaning couples have to act for themselves.
Recent Ministry of Justice figures revealed that neither party had legal representation in 36 per cent of private family law applications between May and June this year — a rise of 3 per cent on the same period in 2016.
Jo Edwards, head of family law at Forsters, the London practice, confirmed that both arbitration and FDRs were on the rise. One leading set of family law chambers in London undertook arbitration in 29 cases last year, up from one in 2010, she said.
Edwards confirmed that since legal aid was cut for divorce-related disputes in April 2013 the rise in people acting without lawyers had been huge. “Private judging is rightly assuming an ever more significant role in family law. For my clients, many of whom have immense wealth but some of whom do not, the benefits of private judging are not hard to sell to them,” he said.