Respecting the sanctity of the court process in divorce proceedings
A recent article in The Times gave voice to the concerns of senior judges in England about the message the general public may receive from reports of an oligarch striking a private arrangement to settle his divorce action.
The Times reported that senior judges are concerned the private settlement agreed between Farkhad Akhmedov and his wife, Tatiana Akhmedova, might undermine judicial powers by sending a message that it is possible to evade their authority and disregard orders.
Judges may issue a statement making it clear that orders made by the court require to be respected, implemented, and are binding.
The High Court in England ruled that Tatiana should receive £453 million in settlement of the issue of financial provision on divorce, as it is known in Scotland. Whilst the rules governing the calculation of settlements differ between Scotland and England, many of the same principles apply when it comes to considering the processes of litigation and negotiation.
Going to court is the place of last resort where agreement cannot be reached between spouses about financial matters when they separate. Many clients prefer to negotiate a settlement so that they can retain a degree of involvement and control over the outcome, rather than trusting that outcome to a third party judge.
This Akhmedov case attracted a great deal of media attention and sparked public interest because of the staggeringly high award made by the court.
The couple apparently reached agreement directly on settlement terms after the decision was made by the court, on the basis that assets had been placed outside the reach of the court. Reading between the lines, Tatiana seems to have decided to accept a lower sum on the basis that that sum would actually materialise, whereas the sum ordered by the court may not.
The facts and circumstances around this particular case point to an imbalance in the power dynamic between husband and wife. Such imbalances occur in many separations, and indeed are sometimes the root cause of separation. The costs involved in this case, the time taken to conclude it, and the level of emotional strain are frightening. The legal professionals involved are engaging in a debate about whether such judgments should be reported at all, since the messages received by the public about family law and how cases are resolved can be confusing.
It is interesting to note that no reporting restrictions were applied to this particular case. It is possible to apply to the court for an order around confidentiality, sometimes referred to as a “gagging order” about which I have previously written: here
I can only imagine the lawyers representing husband and wife in the Akhmedov case share the concerns expressed by senior judges about the sanctity of the court process. The case highlights the importance of choosing the correct process and respecting the authority of the court, if the court is involved. It is also worth considering whether or not it is appropriate to seek an order around reporting restrictions and confidentiality should your case be likely to generate attention on the part of the media and general public.
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