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Divorce law blog

Some Might Say (not very much)

08/10/2015   By: Nicola Rowlings

Inside Britain’s most toxic divorce”. “Husband cheated with 12 women in five months”. “Judge roasts wife in divorce hearing”. Surely a fearful prospect for anyone embarking on divorce and financial remedy proceedings these days is a possible tabloid front-page splash of the proceedings’ details. The widely reported divorce of Nicole Appleton and Liam Gallagher demonstrates not only how the marital difficulties of the wealthy or high profile can particularly attract the gaze of the media but also the disagreement between family judges as to just how “open” financial remedy hearings should be.

27 April 2009 heralded a change in the law allowing accredited media representatives to be permitted into the Family Court. Championed under the principle of “open justice” and increasing public confidence in the court system, Mr Justice Holman provided significant support to this change in the law by stating in a recent case that “there is a huge legitimate public interest in open justice in family cases, just as much as in criminal or civil cases”. Despite there being judges who take a less strident approach, Mr Justice Holman’s words should act as a cautionary warning to couples whose private matters could attract media coverage.

Not all family proceedings are open to the media and there are ways by which parties can apply to exclude or restrict press reporting. Indeed, Nicole Appleton and Liam Gallagher successfully restricted the reporting of the financial aspects of their divorce. However, securing the media’s non-attendance or restricting what they can report can be an additional costly court hurdle to overcome. And, of course, one party may be more motivated to restrict the admittance of the press than the other; the party facing lesser risk from media reporting can be elevated into a stronger negotiating position as a result. It is plain to see why, increasingly, divorcing couples are seeking settlement via non-court dispute resolution (“NCDR”).

There are a number of NCDR mechanisms available to divorcing couples. And the Family Court’s continuing strong emphasis on encouraging their use means that most couples will at least consider NCDR at some stage. Some of the mechanisms offer a non-binding resolution either with or without third-party intervention (such as simple negotiation, mediation or early neutral evaluation) whilst others offer a guaranteed and binding award (such as arbitration).

NCDR in all its forms offers a private forum for differences to be aired, away from the media’s glare; the flexibility and goal-orientated nature of NCDR makes it very attractive too. However, unless the parties reach a settlement which is then turned into a court order, most forms of NCDR do not end in themselves with a binding or enforceable judgment or award; there is also the risk in mechanisms such as mediation that either party could withdraw from the process at any point or that no settlement is reached leaving court proceedings to be pursued.

For those who truly value privacy and confidentiality, it is arbitration that is perhaps the most attractive NCDR option. The parties enter into an agreement whereby an independent arbitrator makes an award, acting in a judicial fashion, to finalise the dispute. The whole process is private, with neither the public nor the media permitted to attend any hearings. Indeed, the fact that someone is involved in arbitral proceedings is not usually in the public domain. The final award still needs to come before the Family Court to be turned into an enforceable court order but the President of the Family Division has made plain that that process will continue to honour the parties' decision to enter into a private forum and the Family Court will not then expose their affairs in a public judgment.

And what of the future? Further moves to make the Family Court even more open are likely following the conclusion of a current consultation process. Already expected are reforms to how family cases are to be listed by courts (by subject matter rather than case number thereby giving more information to the media to spot potentially newsworthy proceedings), the disclosure of certain categories of legal documents to the media and the possible hearing of certain types of family cases in public.

(A version of this blog first appeared in Spear’s Wealth Management in June 2015)

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