(759 words | Estimated reading time: 4 minutes)
In early May, co-founder of Divorce Assent Zoe Bloom described on Instagram the reasons for establishing the scheme. Zoe ‘loves a Private FDR’. As she should. This is an out-of-court hearing where parties to a divorce can put their case to an expert, often a retired judge or barrister, and receive a non-binding judgement about how their matter will be decided if it were to go all the way to trial. This can help parties to resolve their differences in a cost-effective, consensual, collaborative manner.
The problem, Zoe states, is that:
‘people are mucking about… with the dates, saying that unless you answer this question which is completely unreasonable question or can’t be answered, or a valuation of something the private FDR won’t go ahead. And there’s no real route of solving those problems without going to arbitration or continuing with [legal] proceedings’.
Quite. But it is not clear why this is a problem that needs to be solved. If a party to divorce proceedings asks an unreasonable question during the process of financial disclosure which you believe to be unreasonable, if a court agrees with you they can require the other side to reimburse you for the time that you have spent on dealing with it. Handling this matter via the courts provides clients with the appropriate protection and procedural certainty. Meanwhile, if parties do not have valuations of their assets, it is not clear how a proper judgement can be made about their case, and so one must question why Zoe would want a private FDR to go ahead without valuations having been obtained.
Still, what is the solution being offered by Divorce Assent? An 11-week plan, that contractually locks clients into attending a Private FDR within ten weeks of starting the financial separation process. In this time, parties are expected to provide statements of what they own with their personal estimation of the valuation of these assets. The parties will then have a couple of weeks to exchange and answer questions about the other side’s disclosure. This is all quite normal.
But no time is given to allow for obtaining any expert valuations of key assets like companies, pensions and property held in the parties’ names. Parties normally begin by giving their own personal estimations of assets and raise questions to allow a judge to set the court timetable, making provisions for valuations and more, often with the specific aim of readying parties for an FDR Hearing. Without doing these things, an FDR Hearing cannot be effective.
Acknowledging this, Divorce Assent provides rules which stipulate how the parties will proceed, under arbitration, if agreement cannot be reached within this ten-week period. So, for all divorce cases except the most simple, which contain no properties in need of valuation, no need to raise further questions after an initial round of exchange, the 11-week Divorce Assent plan appears to be an unnecessary roadblock on the road to arbitration. Any information half-completed during this time will invariably need to be updated or reviewed again upon the commencement of the arbitral process. Would it not be more cost-efficient, more time-efficient, more in the client’s interests to arbitrate from the offset?
And if a divorcing parties’ matter is so simple that it can be resolved within a couple of weeks without any contention, it is hard to imagine how the parties will have the requisite financing for it to make sense that they pay the many tens of thousands of pounds being charged by Divorce Assent, on a fixed fee basis, for completion of the 11-week plan.
And what of those cases that looked simple, but which actually involved complexities like hidden assets, deceit, a mistress on the side that is never discovered, all because the lawyers turbo-charged the process?
It is simply not clear who this scheme is for. It appears to only benefit the wallets of the lawyers by allowing them to charge more money for doing less work. We are concerned and surprised in equal measure that multiple well-regarded law firms have subscribed to participating in this scheme.
Back in May, we posted a video on LinkedIn, which sets out the substantive points laid out in this article.
Mark Freedman, Co-founder of Divorce Assent and head of the Family Law team at Osbornes, replied saying ‘I think you have misunderstood. But thanks for the publicity anyway’.
Divorce Assent have since taken down their Instagram account.
We will update the world if the nature of our alleged misunderstanding is ever explained to us.
Proceed with caution.