Footballer Ryan Giggs is intending to argue to the court in his divorce from his wife Stacey Cooke that he made a special contribution to the marital finances and that therefore he should receive a greater share of their £40 million fortune.
His timing could be better; he is going to do this very quickly after the Court of Appeal’s decision in Randy Work and Mandy Gray’s divorce last week where the court upheld a first instance decision that the wife should receive 50% of that couples’ vast wealth and rejected the argument by the husband (who had claimed to be a genius) that he should keep more of the assets than his wife.
However, it not that issue which I find most intriguing. Instead, I am surprised that Giggs and Cooke want to subject themselves to the full glare of publicity about their divorce and financial affairs that a trial will inevitably entail. I find this all the more surprising given that Ryan Giggs spend a great deal of time and (presumably) money a few years ago trying to prevent revelations about his private life being published in the media and for a while had the benefit of a super-injunction preventing the press from disclosing his identity.
Quite why anyone would want the details of their private lives splashed all over the press, TV and internet is beyond me. There are of course some celebrities who are total publicity hounds; they seem to live for press coverage, good or bad. I would not have thought that Giggs or his wife are those sort of celebrities, not least because Giggs is apparently a very talented professional footballer. (Or so I’m told. What I know about football could be written on the back of a stamp). He is not the sort of celeb who is famous for simply being famous and who needs to have every salacious detail of his life in the news in order to earn a living.
Therefore, I wonder why he and his wife have not opted to resolve this dispute using a family arbitrator. Family arbitration, unlike court proceedings, is completely private.
Arbitration is a relatively new form of dispute resolution available to couples who are divorcing and can be used to resolve differences about their finances. The arbitrator will be a senior, experienced family lawyer, either a solicitor or a barrister or a retired judge. The husband and the wife enter into contract whereby they commit themselves to abiding by the decision of the arbitrator. He or she will decide the case applying the same law that is applied by a judge in the Family Court and the arbitral award made by the arbitrator can be enforced through the court as an order. The procedure is similar, and you still use a lawyer to represent you just as you do at court, but there can be greater flexibility about the process.
Most importantly, the arbitration is held in private and the decision of the arbitrator, unlike a judgement handed down by a judge, can be kept confidential.
So, why do celebrities like the Giggs not opt for arbitration and instead subject themselves to the full glare of publicity? It may be that there is a lack of knowledge or confidence in arbitration in family cases. It is still fairly new and there have been a relatively small number of arbitrations far. The last figure I heard was about 6 months ago when an arbitrator told me that there had only been about a hundred or so competed arbitrations since it started about five years ago.
Giggs and Cooke no doubt have very experienced and very capable lawyers acting for them. I would assume that their lawyers are aware of arbitration as an option and that they have considered whether or not it is suitable. They will also, I am sure, have also considered whether to use the collaborative process or mediation or plain old fashioned negotiation, all of which are very good alternatives to court proceedings in most cases. It may also be the case that one of the spouses is prepared to arbitrate (or mediate or collaborate or negotiate), but the other is not, in which case the court may then be the only option. There may also be entirely sound and justifiable reasons in the circumstances of this case to not use arbitration of which I’m unaware; I know even less about the details of the Giggs case than I do about football.
However, it may be the case that one the reasons why there are still very few arbitrations is because solicitors are simply not bothering to advise their clients about it. Lawyers who are inclined towards litigating as much as possible may dismiss the idea as not very profitable. Lawyers who are set in their ways (and a lot of us are) may be resistant to the such new-fangled ideas. I have suggested that arbitration be used in cases where it would be extremely suitable, where it could save the parties money and result in the same decision much faster than the court can deliver, only to have my suggestions not just rejected, but simply ignored by the other side.
I’m a great believer in using alternatives to court wherever possible. I do wonder whether all family solicitors are.
15 April 2017