22 September 2014
Divorce - To Arbitrate or Not to Arbitrate? Divorce Solicitor Explains the Benefits
As married couples separating are being encouraged more than ever to resolve matters outside of divorce Court, what are the benefits of resolving family disputes through arbitration?
Family arbitration in England & Wales is a form of private dispute resolution in which the couple separating appoint a fair and impartial Family Arbitrator to resolve their dispute.
The family arbitration process is started by the couple choosing an arbitrator that they would like to deal with their matter. They will then complete an Application for Family Arbitration (Form ARB1) in which they agree that they will be bound by the decision of the arbitrator.
It is a matter for the both parties to agree how the arbitration process will work, for example which issues they want to be determined and the extent of the arbitrator’s powers. Family arbitration will usually follow a process similar to the Court process, however it may be that the couple getting a divorce can agree that certain matters will be dealt with on a ‘documents only’ basis rather than by way of a hearing.
If the couple getting divorced cannot reach an agreement between them then the arbitrator will make a decision which will be put to both of them in writing. Once the arbitrator’s decision is received, this will need to be approved by the Court and an Order made.
An important benefit of family arbitration in divorce cases is that it is an extremely flexible process. One of the important principles of resolving divorce disputes through family arbitration is that the separating couple are free to agree how their dispute should be resolved. From the choice of the arbitrator to the legal issue/s to be resolved, the matter/s can be dealt with as the divorcing couple want, provided they agree this between themselves.
In addition, the family arbitration process is likely to be completed considerably quicker than Court proceedings because, subject to the arbitrator’s availability, the separating couple will be able to agree deadlines and hearing dates between themselves to meet the specific needs of their divorce case.
While the Court will still have the final decision on what Order is to be made, recent divorce case law in England & Wales has shown that District Judges are keen to approve an Order reached through arbitration, except in the rarest of divorce cases.
One consideration that may deter couples getting divorce from considering arbitration is the additional costs that will be associated with resolving matters in this way; namely the arbitrator’s fees. While this may be enough for some people to think twice about proceeding with arbitration, it is worth bearing in mind that the family arbitration process itself will more often than not be resolved in half the time of Court proceedings, reducing each parties legal fees considerably and ensuring that a decision is reached quickly.
Another factor that may concern people getting a divorce is that the arbitrator’s decision will be final and they will be bound by it. While this may cause some people concern, it is no different to the position in divorce Court proceedings where a Judge will make a final Order. The difference with arbitration is that the same arbitrator (who will have been chosen by the both parties in the divorce) will have dealt with the matter throughout the entire process, ensuring continuity throughout their divorce case.
So, since the Courts continue to encourage separating parties to resolve matters between themselves, what better way to do so than with an arbitration process that can be tailored to suit each individual case, without any unnecessary delay or expense?
Joanne Green is a Family Law & Divorce Solicitor at Slater and Gordon Lawyers in Milton Keynes.
For a free initial consultation about family arbitration, divorce or any family law matter, call freephone 0800 916 9055 or contact us online and we’ll be happy to help you.
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