How can mediation help couples discuss prenuptial agreements?
Various press reports this week, both in England and in the US, suggest that Demi Moore and Ashton Kutcher have been unable to finalise their divorce due to their inability to reach a financial settlement. Speculation as to why this might be the case is rife. Here are a couple who are both independently wealthy - she is reportedly worth £94million and he about £87million – and so have more capital than either could possibly ‘need’. The sticking point, allegedly, is Ashton’s extraordinary income and earning capacity and whether Demi should share in that going forward. According to reports in the press, he is the highest paid star on US TV thanks to his role in “Two And A Half Men” for which he receives an eye-watering £440,000 per episode.
The reports this week have been peppered with references to the negotiations turning “nasty” and the prospect of an “ugly” court battle has been raised. The anticipation of a demeaning public showdown in the courts has, apparently, kept them negotiating for the last 12 months (Demi filed for divorce in November 2011) with no resolution. Clearly, there is a desire to keep this from going public and so away from court in the hope that they can reach a private settlement. The US media make it clear that if the talks break down their only option will be court with the avalanche of headlines and media interest that would inevitably follow.
Alternatives to highly public divorces
Clearly this case is based in the US but what would happen in England? Would we offer an alternative route? The answer is yes – there is a different way. It remains open to couples to negotiate and agree matters between them; to mediate; and to instruct lawyers to negotiate in private. However, crucially, if all attempts to reach an agreement fail they do not necessarily have to appear in court and become locked in a court room battle, which the press could potentially attend. (Memories of the McCartney divorce would doubtless loom large).
Arbitration in Family Law disputes is still in its infancy in England, but, for couples who are particularly ‘publicity averse’, arbitration offers something new (limited to finances). Their case would, under the Arbitration scheme, be heard by an accredited arbitrator (nominated and paid for by both parties) and they would be bound by the arbitrator’s decision (but retain a right of appeal). Once appointed, the arbitrator (be they a retired Judge, practising QC or solicitor) can be involved in the management and timetabling of the case, but ultimately, and if necessary, they will conduct a private hearing and make a binding judgment (to be subsequently approved by the court dealing with the divorce). The arbitration process is flexible in terms of timing – with hearings being arranged at the convenience of all concerned (perhaps a particular concern to busy celebs and a far-cry from the time-tabling problems at family courts) and the couple control the process together in terms of agreeing the issues to be determined, the venue for any hearing etc. Most crucially perhaps, there is complete confidentiality with no prospect of the media being ‘allowed in’.
The process may be criticised for creating a two-tier legal system where this option, plainly, is only available to those who can afford it, but for those who cherish privacy above all else, it presents them with a process that will reach a conclusion and so give them certainty which doesn’t depend on there being agreement or a meeting of minds and that is tailored to fit their lives and needs. It isn’t a process that suits everyone or can be afforded by the majority but, to those who live their lives in the limelight, it may well provide an alternative to a public courtroom battle and enable them to keep their divorce ‘private’.
See also our recent blog on other alternative routes to court settlements, including mediation and collaboration.
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