Wealthy couples are increasingly opting for private judges to settle the financial aspects of their divorces, bypassing the clogged public family court system, Kingsley Napley has revealed.
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Figures from the Family & Divorce team at Kingsley Napley show a dramatic shift towards private Financial Dispute Resolution (FDR) hearings, with 88 per cent of their cases in 2023 involving a private judge – up from just 8 per cent in 2018 and significantly higher than the 66 per cent recorded in 2022.
Kingsley Napley is not the only law firm to report a rise in the number of couples seeking a private hearing. Neil Russell, who heads up Seddons’ family law department, tells Spear's that 'at least half' of their clients are now choosing the private route.
While the introduction of No-Fault Divorce in April 2022 has reduced acrimony around marriage dissolution, financial disputes between separating couples remain common and given the increasing strain on public courts and the advantages of PFDRs, legal professionals anticipate that the trend will continue to grow. The courts, too, are actively promoting private alternatives to reduce the backlog and encourage negotiated settlements. And the family lawyers Spear's spoke to are in agreement private FDRs are 'a very good thing'.
The rise of private FDRs
A private FDR is a without-prejudice hearing where spouses hire a judge, usually a barrister or retired judge, to provide guidance on how a public court would likely rule in their case. This process allows couples to negotiate and ideally reach a settlement, with most cases resolving at the FDR or shortly afterwards, family lawyers say.
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The pandemic played a key role in accelerating the trend towards private FDRs. During lockdown, the public court system struggled to manage caseloads, leading many couples and family lawyers to embrace private judging as a more efficient alternative.
Additionally, the family court’s recent transparency drive has encouraged some couples to seek private resolutions to maintain confidentiality and avoid media scrutiny.
According to Sital Fontenelle, head of Kingsley Napley’s family & divorce team, the unpredictability of public court timelines has driven more couples to seek private alternatives. 'Given the vagaries of leaving this to the timescales and unpredictability of a public court hearing, we have seen a notable shift towards couples opting for private FDRs.
'They get to choose their Judge in advance, who will have the time and expertise to consider their case properly on a date of their choosing. The extra cost involved is often worthwhile considering these upsides.'
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For those who can afford the additional cost, PFDRs offer a faster, more efficient, and less stressful alternative to court FDRs, Russell says, who also cites the more comfortable setting private FDRs are held in, particularly beneficial for emotionally charged cases.
'It gives the client nicer surroundings,' he says. 'When you're dealing with an emotional and difficult time, it's better if you've got your own private room to be in all day rather than sitting around in corridors,' he says.
Cost considerations
The cost of a private judge typically ranges from £7,000 to £10,000 (plus VAT), though fees may be higher depending on the complexity of the case and the level of judge required, a cost, legal experts say, is more than offset by the advantages.
Fontenelle says: 'Given the cost of securing a private judge, in many instances the cost involved is negated by the upside of not proceeding to a final hearing. Cases have a greater chance of settlement at a pFDR than at a court based FDR; in the case of the latter, the Judge will have a number of FDRs in their diary.
'With the pFDR, you have a judge devoted to your case for the entire day and occasionally even the evening to get it over the line. The work needed to get a case ready for a final hearing, which includes the preparation of evidence, can be significant, especially in the more complicated cases.'
Fontenelle notes that private FDRs are no longer exclusive to the ultra-wealthy, with couples possessing assets of £1 million or more increasingly opting for this route.
She adds: 'At a time when the family courts are under severe pressure, it absolutely makes sense for couples who can afford it to pursue other ways of resolving their differences especially over financial matters. There is a myriad of non-court options available to divorcing couples and the private judging route can be highly effective in helping couples to reach an out-of-court agreement.'
'What I've seen in the last few years is that private judging is now no longer the preserve of wealthy London couples but also growing in popularity for parties nationwide who simply want a swift settlement and are prepared to pay for it,' Fontenelle adds.
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