Should big-money divorce cases enjoy more privacy?

Two of the UK’s leading judges have gone head to head with differing views on how much privacy there should be when a marriage breakdown ends up in the divorce courts. An article in The Times has revealed that Mr Justice Mostyn believes there should be an increased use of arbitration – a private means of dispute resolution. However, Mr Justice Holman has argued for more openness, supporting the most senior family judge Sir James Mumby in his bid to help shed the family courts’ reputation for secrecy and injustice.

How much should the public be allowed to know?

As judges who sit in the High Court Family Division, the site of many of the UK’s most complex and bitter divorce battles, Mr Justice Mostyn and Mr Justice Holman are at odds as to the level of privacy that divorce cases passing through the English courts should be awarded.

The difference of opinion came to light as Mr Justice Mostyn was hearing a dispute over the division of assets between Oasis frontman Liam Gallagher and his former wife Nicole Appleton. After receiving significant and unwanted publicity during his own divorce in 2011, Mr Justice Mostyn argued that such disputes are “quintessentially private business”.

In a judgement only recently released, he argued that it is not appropriate for all divorce battles to be heard in open court, with other dispute resolution options more appropriate given the personal nature of the issues. He warned of a two-tiered system, where the details of celebrity or high-profile, high-value cases are under significant public scrutiny, but the lives of the ordinary public, in whom the mainstream media are generally not interested, carry on as normal.

However, Mr Justice Holman has asserted the importance of openness and transparency – irrespective of whom the divorce proceedings involve. In supporting senior judge Sir James Mumby, who has previously spoken out in favour of the family courts shedding their reputation as shrouded in secrecy and injustice, Mr Justice Holman argued that the public should be told more about those involved in proceedings. He said the public should know what is being done in their name, and that the informed media has an important role to pay. He stated:

“Courts sit with the authority of the sovereign, but on behalf of the people, and the people must be allowed, so far as possible, to see their courts at work”.

Mr Justice Mostyn retaliated:

“No one has greater admiration for the wisdom and skill of Mr Justice Holman than me but with great deference to him I cannot agree with his practice of ordering . . . that every ancillary relief [money] case listed before him should be heard in open court.”

Sir Paul Coleridge, a former family High Court judge, who now chairs the Marriage Foundation, agreed with the sentiments expressed by Mr Justice Mostyn. Expressing concern that the prospect of public proceedings could scare some individuals into unfair settlements, he stated:

“Mr Justice Holman is completely out of step on this. It is very unfair because it means that the threat of an open hearing can be used as a weapon to force settlement.”

Are court proceedings the only option?

While some cases do proceed to full court proceedings, being heard in public before a judge, many disputes do not, and there are alternative legal options available to couples in disagreement over the distribution of their assets.

Some cases will settle through discussions and negotiations via the solicitors of each party. The advantages of this are costs can be kept lower, as proceeding to a hearing in the family court can be expensive, as court fees apply and legal aid is no longer readily available. Further, the issues are discussed in private and are under the control and supervision of the estranged couple, without the imposition of rigid court deadlines.

There is also a steady rise in the number of people opting out of “traditional” divorces in Britain. An increasing number of couples are shunning the family courts in favour of arbitration, which is best described as a private sector court system. This is entirely private and is often a faster method of having a trained professional make a binding decision on the distribution of assets.

Through their solicitors, the couple are able to choose when and where the ‘hearing’ will take place – all outside the public sphere – with a privately appointed arbitrator, often a retired judge or family barrister, selected to hear the arguments of each sides. Unlike mediation, which is another highly effective formal means of negotiation, the decision that is ultimately made is binding upon the parties and it can therefore provide a cost-effective solution to agreeing a final solution to a couple’s differences.

High net worth and high profile divorce solicitors

If you would like to discuss any aspect of divorce and family law, or want to draw up a pre or post-nuptial agreement or cohabitation agreement, call our divorce, mediation and family dispute resolution solicitors in absolute confidence on 03456 381381. Alternatively, email us at familylaw@ibblaw.co.uk. Our divorce and family solicitors and lawyers are based in Chesham, Buckinghamshire, but cover the neighbouring towns of: Amersham, Chorleywood, Rickmansworth, The Chalfonts, Gerrards Cross, Beaconsfield, Berkhamsted, the surrounding home counties and west London. We can meet you at our South Bucks office, our Uxbridge head office or any other location to suit you.

We can provide initial short family law consultations at a reduced fixed fee, where our expert advisors will be able to give you initial guidance on ways to resolve family disputes, either through mediation or individual representation. We will always provide you with cost estimates at the start and throughout your case.