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The wealthy used to choose private health care and private schooling, but now private divorce is also an option.

Thanks to excruciating delays waiting for court appointments and unwanted publicity once they get them, couples in England are turning to private arbitration in large numbers to help them sort out the details of their divorces, say lawyers – in some cases, with hundreds of millions of pounds at stake.

The process, which takes place in a private location and is more streamlined than a court, is usually presided over by a senior barrister or retired judge. The result is binding.

“It’s progressing because the court system is completely overwhelmed,” said lawyer Rebecca Cockcroft, a partner at Fladgate.

There will be 130 arbitrations regarding financial settlements for divorces in the year to mid-December 2024 against 89 in all of 2023, according to the Institute of Family Law Arbitrators. Barrister James Roberts KC, chair of the Family Law Bar Association, predicts that this figure, which is currently only about 1 per cent of contested divorces, will continue to rise thanks to a change in court rules in April 2024 which means the parties should try to reach a resolution. outside the court first.

London has earned the reputation of being the “divorce capital” of the world. Sheikh Mohammed bin Rashid al-Maktoum, the ruler of Dubai, reached a £550m settlement with Princess Haya bint Al-Hussain at the High Court in 2021, while high-profile divorcees such as Prince Charles and Diana, Princess of Wales, is widely covered. in the media and won great fame among their lawyers.

The advantages of privatization are available to everyone who can pay but are especially attractive to the wealthy: speed, privacy and a choice of arbitrator.

Private client lawyers have long complained about the poor state of the court system. Although the number of days judges sit in the family division of the High Court, which sees the highest value divorce cases, has hardly changed since 2011, the time set for resolution in disputes big money falls, lawyers say.

“If you issue a financial application, then this is a good four months . . . for your first appointment,” Cockcroft said, then “a few months” for a hearing to negotiate the settlement and “a lot more” for the final hearing.

A divorce through the courts can take up to two years but in arbitration it can be as little as six months, says lawyer Alexis Campbell KC, joint head of chambers at 29 Bedford Row.

As well as the obvious emotional advantages of a faster resolution, it can also be cheaper: even if you have to pay for the arbitrator, as well as for your lawyers, Campbell estimates that a divorce in court will be “quick” cost £ 100,000-£ 2mn. By speeding up the process, arbitration can reduce the opportunities for legal letters, prolonged arguments and expensive revaluation of assets.

A greater push toward judicial openness means that arguments about finances and relationships in family courts are more readily available to the press and public — the kind of attention most wealthy people want to avoid. family.

“Ninety-nine percent of my clients don’t want to think that someone is going to come in and hear what’s going on in my divorce,” says attorney Jane Keir, a partner at Kingsley Napley. “(Arbitration) is completely private and no one can enter unless they are invited.”

Although the choice of arbitrator must be agreed upon by both sides, less wealthy spouses may fear that their spouse has chosen someone more favorable to their side. The use of arbitration has been slower than some expected, according to Keir, perhaps in part because it lacks the perceived prestige of the court system. This is also an unfamiliar option.

Campbell, who acts as a judge and an arbitrator, said that there is less work pressure in the latter than in the former: a judge can only know the night before their cases and thus can struggle to fully facilitated. , but as an arbitrator “they got my full attention . . . This is an immeasurably improved system. “

The government encourages forms of “non-court dispute resolution” such as arbitration to ease pressure on the court system.

The UK justice ministry said the government wanted to promote arbitration “to help people and businesses avoid the time, cost and stress of court battles”.