Their extraordinary wealth sets them apart from most couples but the “separation contract” reportedly agreed by Bill and Melinda Gates reflects a growing trend among divorcing couples in the UK to settle their affairs without going to court , leading family lawyers have said.
The pair, who married 27 years ago and reportedly had no prenuptial agreement, are said to have drawn up a private agreement to divide their assets before announcing their divorce this week. Insiders say that a team of lawyers had probably been working on what is being called a separation agreement for at least a year to avoid the need for litigation through the courts.
For high-profile couples such as the Gates, the decision may be prompted by a desire to avoid costly court litigation and retain privacy. But leading family lawyers have said that an increasing number of married couples in the UK, prompted by key legal changes and a burgeoning pressure on courts during the pandemic, are also choosing to to avoid litigation.
“There are now more options than ever before for couples to resolve their differences away from the court and the Gates have shown that it’s perfectly possible, notwithstanding their level of wealth, to settle a divorce without recourse to litigation,” said Sandra Davis, a partner at Mishcon de Reya’s family department.
Spurred on by court backlogs exacerbated by Covid, and an increasing number of creative alternatives to litigation, she said, couples are increasingly deciding against going to court. This sea-change in attitudes to divorce is backed by family judges themselves, who are increasingly using their powers to send couples away from court with orders to sort it out between themselves.
Among the options available to divorcing couples are ”alternative dispute resolution”, a form of mediation usually used by consumers and businesses, and “early neutral evaluation”, where an independent adjudicator gives their non-binding assessment of the case.
Emma Gill, a director of divorce and family law at the law firm, Vardags, said the increasing popularity of alternative measures to litigation is leading to a sea-change within the legal profession itself.
“Experienced barristers are switching their focus away from the court room to adjudicate in these private sessions,” she said. “Lawyers who previously had not used alternative dispute resolution are becoming converts. ‘We don’t do those round here,’ was the response of one Lancashire lawyer to our suggestion of a private financial dispute resolution. We soon convinced them of the merits and the case settled.
“What was once seen as exclusive is now viewed as accessible – and that has changed the attitudes of everyone,” she added.
Early research suggest a boom in divorce as a result of the pressure cooker of lockdown: law firm Stewarts logged a 122% increase in inquiries between July and October, compared with the same period last year. Almost a quarter of working mothers in another survey said their relationship with their partner had worsened during the pandemic, with one in eight considering a breakup.
There is no research into the number of cases that settle before they come to court but the increased interest in separation appears to have coincided with a reduced appetite for litigation: Simpson Millar, the law firm, has reported that 74% of its clients have expressed a preference for “keeping things civil”.
Davis identifies a key turning point as the recent decision by the court of appeal in October that meant decisions of arbitrators could be challenged in a family court.
Previously, if a couple chose arbitration rather than litigation, they were bound by the arbiter’s decision, except in extraordinary circumstances. The recent decision means arbitration is now not binding and that, said Davis, makes arbitration significantly more attractive than before.
Added to which, she said, “judges are now actively promoting alternative ways and as a result, there is much greater pickup on all these alternative fronts. This is great because it costs less money, takes less time and is better for the whole family.”