Family arbitration is one of several options to resolve a family law dispute without having to make an application to the court and then face a wait for a court hearing date.
In this article, family law solicitor, Angelique Holm talks about family arbitration and explains why it may be the best dispute resolution option for you.
For divorce and family law advice call Angelique Holm on 0203 488 8620 or email
info@hopeholm.co.uk or visit our website Hopeholm Family Law.
Why you should consider family arbitration
You may think that as your ex-spouse or partner is unreasonable your best option is to make a court application to get a financial court order or child arrangement order after your separation or divorce. Family law solicitors will sometimes agree with that approach. For example, an urgent financial court application may be necessary if your ex-husband or wife selling or hiding assets so you will get less as a financial settlement or if you are concerned that your spouse is at risk of bankruptcy. Alternatively, you will need an urgent court application and child arrangement order if you are worried that your ex-partner is planning to take your children abroad to live.
In many other situations, you should try a non-court-based dispute resolution option before you apply to the family court for a judge to decide on how your assets are split or on the future residence and contact arrangements for your children.
The Family Procedure Rules on non-court-based options
The Family Procedure Rules (FPR) were changed in April 2024 to emphasise the importance of trying to reach an agreement outside of the family court to resolve family disputes.
Before April 2024 the FPRs required the applicant and respondent to most family law court applications to try family mediation before they started financial or children law court proceedings unless the couple fell within a limited number of exceptions. The revised rules explain the need to consider a range of non-court dispute resolution options, such as family arbitration or the use of a private judge.
Angelique Holm will talk you through all your dispute resolution options and explore if family arbitration is the ‘right fit’ to help you resolve your family law dispute.
The consequences of not trying to reach a non-court-based resolution before making a court application
In court applications, you now need to sign a statement of truth to explain what non-court dispute resolution options you have tried and if you haven’t done so to explain why.
The new FPRs give the family law judge the power to adjourn your family law application for non-court dispute resolution to be tried. The court could also order that you pay some of your ex-spouse’s financial application legal costs associated if you were not prepared to engage in any non-court-based dispute resolution and the judge thinks that approach has wasted money.
In a May 2024 court case, referred to as NA V LA [2024] EWFC 113, a judge ordered an adjournment of a financial application for the husband and wife to use non-court dispute resolution even though the husband and wife had not asked for an adjournment. The judge said the court must consider non-court dispute resolution and that it would be of emotional and financial benefit to the couple as well as to their children. The judge therefore stayed the proceedings for dispute resolution to be attempted.
What is family arbitration?
Family arbitration involves a husband and wife, directly or through their family law solicitors, appointing an arbitrator to determine their family law dispute. An arbitrator is a bit like a private judge as their decision is binding, unlike family mediation where the family mediator cannot decide on your joint behalf on what is a reasonable financial settlement or parenting arrangement.
When entering arbitration, you will be asked to sign an agreement so you understand the arbitration will be binding on you. In financial settlement cases the arbitration decision is called an award and in children cases it is called a determination.
You may question the benefits of family arbitration if it is like using a private judge but family law solicitors say the key benefits are:
- Speed – you are not part of the family court backlogs
- Choice – you and your spouse can choose a family arbitrator who has the specialism or background you are looking for to make an informed judgment. For example, if your financial settlement dispute involves a family business you may want to appoint an arbitrator who has experience in company issues as well as being an expert in family law
- Process – with arbitration there is a process to be followed but this can be tweaked if the arbitrator and both spouses or former partners agree to do so. The court process is more rigid. That rigidity can make court proceedings more expensive or time-consuming than family arbitration
- Continuity – with family arbitration, you get one arbitrator throughout the process whilst if you make an application to court there may be several different judges who hear your case. That can be frustrating
- Flexibility – with family arbitration you can choose a family arbitrator who is willing to be flexible over the arrangements. For example, the venue or only scheduling morning appointments or dealing with minor paperwork matters by email or online
- Finality – an arbitrator’s award is final in much the same way as a judge’s decision in family court proceedings
Is family arbitration right for you?
There are several non-court dispute resolution options so Angelique Holm will go through all your options to see which one is the best fit for you and your separated husband, wife or partner and to explain how the family arbitration process will work for your family.
For advice on divorce proceedings and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or visit our website Hopeholm Family Law.