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SPLITTING UPUsing Family Arbitration

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Relationships break down for many reasons and it can be difficult to know what your options are.This guide is one in a series of guides we’ve prepared to explain what options are available to help you find the best solution for you.

What is Family Arbitration?

Arbitration is a means of formal dispute resolution.

It is a way of reaching a decision about your finances or your property if your relationship has come to an end.

The parties enter into an agreement under which they appoint a suitably qualified person (an Arbitrator) to adjudicate their dispute and make a formal written decision (known as an award). The Arbitrator’s decision will be final and binding upon you both.

What are the benefits?

The main benefits of arbitration are:

1. Control - the parties select their owndecision maker from the Family Arbitration Panel.

2. Continuity of the decision maker will be assured – the Arbitrator will continue to deal with the case until its conclusion.

3. Autonomy and flexibility - are at the centre of family arbitration - the Agreement to Arbitrate defines whether all matters or discrete issues are to be resolved by the Arbitrator and the parties discuss with the Arbitrator how the case will proceed. Arbitration hearings can take place atany location agreed by the parties.

4. Speed – from start to finish the arbitration process is likely to takeless time than contested Court proceedings, and the timetable can be more easily tailored to suit the parties’ needs and other commitments.

5. Confidentiality – confidentiality is assured in arbitration. This can be a real ‘selling point’ in high-profile caseswhere the parties will want to know that the media will not be able to report their dispute, their discussions and its outcome.

6. Informality – the arbitration processcan be extremely informal.

Why now?

Arbitration has been available for family law disputes since 26 March 2012 despite having been discussed in family law circles for some years.

Concerns had been raised that the family Courts could not cope with the volume of cases coming before them and previous attempts to divert suitable cases away from the Court system to other forms of dispute resolution have enjoyed limited success.

In 2012, the Institute of Family Arbitrators (IFLA) launched a scheme to enable family disputes to be resolved by arbitration.

The IFLA developed the scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is expected to save Court resources and reduce pressure on the already stretched family Courts.

The Key Features of Family Arbitration

The powers of an arbitrator are wide ranging. They are likely to have more personal involvement in a case than a judge.

The following are key features of family arbitration:

1. The decision of an Arbitrator is binding upon the parties in the same way as an order of the Court. The parties will usually apply to theCourt for an Order confirming the terms of the award.

2. There are extremely limited groundsof appeal under the Arbitration Act 1996.

3. An arbitration award does not oust the jurisdiction of the Court – the Court retains jurisdiction to ratify the arbitration award so the award still needs to fall within the parameters of the Court’s powers orjurisdiction.

4. Arbitration provides certainty ofoutcome.

Suitable Cases

The family arbitration scheme includes:

• Financial disputes arising from divorce; financial claims made in England and Wales after a divorceabroad;

• Claims for financial provision for children between unmarried parents

• Disputes about ownership of aproperty between cohabiting couples

• Civil Partnership financial claims.

Disputes will be resolved exclusively by applying the laws of England and Wales in the same way as the Family Courts.

The focus of arbitration is on financial property issues only.

Arbitration does not cover the following:

• Status – the Arbitrator will not determine issues in respect of therelationship itself.

• Insolvency• Third parties – arbitration exists

because of the agreement between the parties and so third-party issuesare not covered.

• Non-financial issues relating tochildren.

Starting Arbitration

The parties must agree that arbitration is the appropriate way forward for them and complete and sign an Agreement to Arbitrate.

This binds the parties to arbitrate and also to accept the arbitration rules. The parties agree to be bound by the arbitrator’s decision.

The Solicitor’s Role in Arbitration

A solicitor acting for a party in arbitration will:

• Explain how the arbitration processwill work

• Assist with the selection of anarbitrator

• Determine the issues in dispute and consider the most appropriateprocedure suitable.

• Advise either outside of the arbitration process or act as the party’s representative throughoutthe arbitration.

If you would like further information, please contact Fiona Apthorpe on 01332 254124. Fiona heads Geldards Family Team and is an experienced Deputy District Judge and trained Family Law Arbitrator. G

This briefing note is intended solely as an overview of the law in England and Wales. It was last updated on 20.02.2017. No responsibility can be accepted for the completeness or accuracy of this briefing note and professional advice should be taken in relation on to any specific matter. Geldards LLP is a limited liability partnership registered in England and Wales (OC313172) and is authorised and regulated by the Solicitors Regulation Authority. A list of Geldards LLP members is available for inspection at our registered office at Dumfries House, Dumfries Place, Cardiff CF10 3ZF. We use the word ‘Partner’ to refer to a member of the LLP or an employee of an equivalent standing and qualification. * Please note that the cost of calling our 0844 numbers will include a “service” charge of 6p per minute and an “access” charge from your phone company. Geldards will not receive any payment from the call charges.

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