President of Family Courts of England and Wales endorses arbitration in family law financial cases
Under pressure family law courts told to open their doors to external decisions
Family law courts were today ordered to fast track the approval of financial decisions made by external adjudicators.
Sir James Munby, President of the Family Division approved an application for an award made through family law arbitration to be accepted and recorded in the same format as a court order. In doing so he set down guidelines that other courts will have to follow when presented with similar situations.
The parties had used a process called arbitration where a private individual, usually an experienced lawyer or even a Judge, can be hired by the couple involved. The arbitrator is then able to determine how the dispute will be heard, what evidence is required and what processes will be followed to enable him or her to reach their decision.
Couples have long been able to reach an agreement between themselves and ask a court to approve and incorporate their own agreement into a court order. This new development shows that even where the couple grant their decision making power to another private individual to decide on an outcome, in place of a judge in court, that this deferred decision will also be binding.
The judgment warns other courts against interfering too much when asked to approve decisions, stating that they should only do so when `something leaps off the page to indicate that something has gone seriously wrong’ in the arbitration process.
The court’s stance may well open the doors of the court to allow external judgments to be approved by them in greater numbers. If that is the case then it might help to alleviate the current workload. The family courts are currently struggling to cope with unprecedented numbers of divorcing and separating couples who choose to act for themselves either as a result of personal circumstances or the government’s dramatic cuts to legal aid funding. The impact on the courts has been more work and longer waiting times for people involved in cases to get court appointments and judgments.
`Arbitration provides a way for separating couples to avoid the cost and time involved in lengthy court proceedings’ explains James Pirrie, family law expert with award winning Family Law in Partnership in London. `It took only eight weeks between committing to the arbitration process and getting the final arbitration decision. If this case had gone through the full court process it could have taken between nine and fifteen months – or even longer.’
Avoiding the full court process has other advantages for separating families;
`By not having to suffer the stress and considerable inconvenience of contested court hearings, the couple have been able to preserve their relationship better than would have otherwise been the case. The costs are also greatly reduced. I would estimate that this reasonably complex case was resolved for about a quarter of what it would have cost using the normal court processes.’
The judgment does not go so far as to suggest that any external decision will be binding upon a court. The arbitration process needs to be rigorous and carried out in adherence with full consideration of the law of England and Wales. In this case that was assured through compliance with the Institute of Family Law Arbitrators scheme which the President endorsed. Early concerns that this development might lead to the dilution of the authority of law in courts and England and Wales, such as an emergence of sharia law, for example, are likely to be unfounded. The decision also relates only to financial matters that arise between separating couples and not matters relating to child care or parenting.
Sources
Judgment of Sir James Munby, President of the Family Division in matter of S v S [2014] EWHC 7 (Fam)
About James Pirrie and Family Law in Partnership
James Pirrie is one of the founding partners of Family Law in Partnership, the award winning family law firm based in Covent Garden, London.
James regularly works with media for television, radio and print and can be contacted on
020 7420 5007
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