Published on 03 May, 2022 | Alison Fernandes
Regular readers of this ‘blog will recall how, a fortnight ago, one of my colleagues wrote about the introduction of ‘no-fault’ divorce.
Claire Reid described how, despite much anticipation of the biggest divorce reform in half a century, the Divorce, Dissolution and Separation Act 2020 was only designed to make the process of obtaining divorce decrees less unpleasant (https://hallbrown.co.uk/no-fault-divorce-historic-but-only-a-halfway-mark/).
She actually went further, outlining how most of the conflict on divorce occurs when spouses are discussing how to divide their joint marital assets.
Claire was echoing the thoughts of some eminent individuals, including members of the House of Lords, who had suggested that the Government’s failure to put in place a parallel framework for simplifying asset division would lead to the ‘no-fault’ legislation achieving only one part of its objectives.
Only in the last month, two cases have appeared before the courts which bear out exactly what she was suggesting.
The first featured Russian retail millionairess Alla Rakshina and her “homemaker” husband, Lazaros Xanthopoulos, who are both in their forties, split up in September 2020 after 14 years of marriage and having had two children.
Those details are not necessarily unusual. What marks the case out is the intensity of their dispute and the costs involved.
In a little over 18 months, they have racked up more than £5 million in legal fees with the likely total by the time a settlement is reached predicted to be as much as £8 million.
The judge hearing the case, Mr Justice Mostyn, described the professional costs incurred in the strongest possible terms, regarding them as “beyond nihilistic…apocalyptic” (https://www.bailii.org/ew/cases/EWFC/HCJ/2022/30.html).
In handing down his judgement, he proposed that the Lord Chancellor, Dominic Raab, consider introducing yet more changes to divorce law to “limit the scale and rate of cost run up in these cases”.
Alternatively, he argued, the issue might be addressed by possible changes to the Family Procedure Rules which govern how divorces are conducted.
“Either way”, insisted Mr Justice Mostyn, “steps must be taken.”
His comments have been reinforced in recent days by High Court judge Mr Justice Moor.
He has described the decade of proceedings featuring a cosmetic surgeon Adam Greenbaum, and his former wife, Barbara Lockwood, following the breakdown of their marriage as “expensive and thoroughly damaging”.
The judge remarked that whilst the introduction of ‘no-fault’ divorce had been “extremely welcome…this new law will not end the sort of attritional litigation in relation to ancillary matters, such as financial remedies…unless the parties recognise that such an approach is entirely destructive.”
It should be said that significant steps have already been taken in recent years to avoid high-cost and high-profile divorce disputes such as that involving Alla Rakshina and Lazaros Xanthopoulos.
There has been a focus on the use of something known as Alternative Dispute Resolution (or ADR, for short).
As the name implies, it involves using a variety of methods, such as arbitration, mediation and collaborative law, to help couples whose marriages have ended come to an agreement on the terms of their divorce without the need to go to court.
Hall Brown is not only committed to the idea of ADR but has qualified and experienced practitioners in all of the main practices.
Another of my colleagues, Judith Klyne, a qualified mediator, has written about ADR on a number of occasions in the last few months (https://hallbrown.co.uk/problem%E2%80%90solving-in-a-pandemic-mediation-and-mitigation/).
As she pointed out, the use of ADR has been accelerated as a result of the Covid-19 pandemic.
Couples who want to part ways quickly and without rancour have been encouraged to pursue an alternative route to resolution instead of joining a lengthy queue to have their issues decided upon in court.
It’s worth pointing out that some couples become so fixed on the idea of airing their differences in court that ADR is unsuitable.
Whereas family lawyers can advise, we take instruction from men and women who may be particularly set on resolving matters before a judge and that, naturally, has an impact on costs.
Having individuals who are skilled in ADR is just one reason why everyone at Hall Brown does their best to ensure clients take advantage of it.
As well as taking the heat out of sensitive discussions about assets, it enables divorcing husbands and wives to retain a sense of dignity in any ongoing relationship, something which is especially important if children are involved.