Divorce Arbitration Explained Part 1

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What is Arbitration?

Arbitration is an alternative to the court process. A couple can choose to appoint an Arbitrator who will decide what financial settlement is appropriate in their case and make an order in these terms. This order will be binding on the couple, subject to limited grounds of appeal.

Who starts it?

The couple must jointly agree that the case will be dealt with by Arbitration and also agree on the choice of Arbitrator or ask the Institute of Arbitrators to appoint an Arbitrator.

What are the steps?

Once the choice of Arbitrator is agreed the couple will approach him or her and explain what they want the Arbitrator to do. The parties sign up to an agreement that they will be bound by the Arbitrator’s decision.

The Arbitrator may just deal with the final hearing or be involved with the management of the case along the way, for example deciding whether or not expert evidence is needed on a particular point.

The instructions to the Arbitrator will confirm whether the Arbitrator is going to deal with procedural steps such as the timing of the exchange of Forms E (financial statements) or deal with a final hearing or for example decide a particular point on the basis of written evidence e.g. the issue of child maintenance.

Who needs to be involved?

This will depend on how the couple have decided they want the arbitrator to deal with the case. If it is written submissions it may just be solicitors who make the written submissions on behalf of their clients.

If however the parties are treating the arbitration process more like the Court process then solicitors will normally instruct Barristers who will represent the parties at a final hearing and both parties will give evidence in the same way as if the hearing was being tried by a Judge.

What is there to consider?

The choice of Arbitrator needs to be considered at the outset. Unlike the Court process, where the couple have no say over which Judge will deal with their case on a particular day, the Arbitrator will normally be the same individual throughout and both parties should speak to their solicitors about the choice of Arbitrator.

The parties also need to consider what decisions they want the Arbitrator to make and whether if, in future, they are unable to agree something they want the Arbitrator to decide this issue for them e.g. the content of a letter asking an accountant or pension expert to give advice.

What type of issues can be dealt with in Arbitration?

Financial consequences on divorce
Children’s maintenance
Property ownership issues
Disputes under the Inheritance (Provision for Family and Dependants) Act 1975 – e.g. where a claim is being made against the estate of a late spouse.
Financial claims after a foreign divorce.

Is it costly?

Arbitration is likely to be more expensive than mediation or collaboration because of the Arbitrator’s fees. It may well, however, be cheaper than the court process because a case being dealt with by way of arbitration should be dealt with quicker than the time it can take for a case being dealt with through the court process to get to a final hearing.

Written by Kirstie Law Solicitor, Collaborative Lawyer and Mediator at Thomson Snell & Passmore. www.ts-p.co.uk

PHOTO CREDIT: FREEPIK

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