Divorcing couples who can afford it are increasingly turning to private judges to reach financial settlements, say legal experts.

This involves a hearing set up by the spouses where a hired judge – usually a barrister or retired judge – gives them an indication of how a court would probably rule in their case.

The couple generally then reach a Financial Dispute Resolution, which becomes a financial settlement that still needs to be ratified by the court, but that stage is typically handled over email.

The cost varies widely, from £2,000 for a straightforward hearing to £10,000 for a complex case with an experienced judge.

But lawyers say hearings can be arranged quickly, avoiding long delays in the family court, and publicity under new transparency rules.

We explain the rise in hiring private judges to sort out divorces and more about how it works below, while solicitor Simon Bassett of RWK Goodman and barrister Harry Gates of 4PBbarrister also offer their opinions.

Why are divorcing couples using private judges

‘No fault’ divorce has made splitting up simpler and speedier since it was introduced a few years ago.

Couples can get divorced within six months of first applying and the process is largely online.

However, financial settlements are still dealt with in a separate and parallel process, which can continue long after the divorce is final.

Law firm Kingsley Napley says wealthy couple are increasingly bypassing the ‘public, slow and chronically underfunded’ family court system to resolve their finances with the help of a private judge, especially in London.

It says 88 per cent of its Financial Dispute Resolution cases last year involved a settlement assisted by a private judge, compared with 66 per cent the year before, and just 8 per cent in 2018.

The firm explains a private FDR is a without-prejudice hearing between spouses, at or after which they can negotiate and ideally reach a settlement.

Sital Fontenelle, head of the family and divorce team at Kingsley Napley, says; ‘The introduction of No-Fault-Divorce removed the need for separating couples to apportion blame in order to secure a divorce.

‘However, there is still the potential for dispute over finances.

‘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.’

Fontenelle goes on: ‘ 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.’

She says the Covid lockdowns were a gamechanger in the use of private judges, but it has also been driven by the family court system struggling to cope and needing to focus on urgent or public interest cases, and new transparency rules which opened hearings to the press.

‘Not only does private judging help couples to resolve the financial aspects of their divorce more efficiently, many also prefer that it takes place away from the courts, results in greater chance of settlement and thereby avoids a final hearing where the press may be present.’

Journalists can now apply for transparency orders to cover cases in the family court, although they operate under rules which mean they keep families’ identities anonymous.

Supporters say this has allowed the press to cover how courts deal with cases of child abuse, and battles to prevent abusive parents gaining custody or access to children, which is in the public interest.

Private judges are not just the preserve of the ultra-wealthy

Simon Bassett, partner in the divorce team at RWK Goodman

Since Covid, I have helped around 50 clients get divorced using a private judge, known as an evaluator.

All the feedback has been positive – not a single person has come back and said that they’d wished they’d gone through the public family court system which is struggling to cope with chronic under-funding often leading to horrendous delays.

Even when a hearing is scheduled, it is not unusual for it to be cancelled shortly before the day of the hearing because the judge will be called to a more urgent matter.

Couples using the public family court are therefore at the mercy of the system and are often left in limbo land with no idea when their divorce will be finalised which inevitably adds to the costs and stress levels at what is already an extremely anxious time.

Understandably, delays became particularly common place during Covid which is when the concept of using a private judge became popular, not least because the hearings can take place using video conferencing.

In my experience, couples who hire a private judge tend to find the experience far less stressful because they have much more control.

For example, a couple advised by their legal teams will be able to hire a judge who has the right skillset for them.

They may need a judge who has experience of advising on divorces involving international assets or, perhaps, family businesses or inherited wealth or a combination of all three.

As well as getting a say over the judge they hire, the hearings can be arranged in a matter of weeks and are conducted completely privately, something which often appeals to ultra-wealthy and high-profile couples.

But private judges are not just the preserve of the ultra-wealthy. While the fees of a private judge can cost about £10,000 a day for the most complex divorces, fees for a less experienced judge who will work well for most straightforward divorce cases will be around £2,000-3,000.

Bearing in mind that most private hearings take just a day, the increase in costs is negligible.

As well as being entirely private, cost-effective and speedy, the private judge process is often a lot less intimidating because clients do not have to go to court. The hearings tend to take place in law firm offices or barristers’ chambers.

While the decision of the private judge is not legally binding and any agreement still has to be signed off by the court, usually by email, success rates in terms of couples reaching an agreement are extremely high.

As a divorce lawyer, my goal is always to help my clients through the process as quickly, painlessly and cost effectively as possible so that that they and their families can move on with their lives.

For these reasons, for the vast majority of cases, I would always recommend a private judge over the public courts where possible.

It is generally much quicker to reach a resolution away from the family court

Harry Gates, barrister at 4PB

In recent years and particularly post-Covid there has been a marked uptick in divorcing high net worth couples opting to ‘go private’ when it comes to resolving issues concerning their finances or their children.

I think this is for two main reasons.

First, it is generally much quicker to reach a resolution away from the family court, which is itself beset by delay and lack of resources.

And dealing with cases more quickly can, counter-intuitively perhaps, actually help to reduce costs in the long run.

Secondly, recent moves to increase transparency in the family court have meant that privacy for these kinds of cases can no longer be guaranteed.

An out-of-court process avoids that risk and is therefore an attractive option, particularly for those in the public eye.

Crucially, most reputable private services are usually delivered by the same regulated and insured lawyers who might have represented you in a courtroom – and increasingly also by part-time and retired judges.

The law is the same, and so is the personnel (‘just with better biscuits’, as is sometimes said).

Taken together, the move towards more innovative ‘private justice’ has been largely welcomed by lawyers and judges.

For participating couples, the benefits are obvious but there are significant advantages for everyone else too: every case which goes private is one which no longer requires a publicly-funded court room and judge, meaning that scarce resources can be targeted where they are most needed.

A ‘win-win’, some might think.