What is arbitration in divorce?

Originally published on 20th October 2023 at 2:50 PM
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Divorce can be emotionally and financially difficult, especially if an adversarial legal route is chosen, impacting a couple's mental health and financial situation. Endless legal fees, uncertain timelines, and the emotional strain of lengthy court proceedings can make things much worse than they need to be.

In such an emotionally challenging time, exploring alternative dispute resolution methods (amicable, mediation, arbitration, etc.) can provide a more flexible and efficient way to resolve any issues around children or the division of money and property without needing a ‘legal battle’.

What is arbitration?

Arbitration is another way of resolving legal issues. It's a consensual process where both people agree to resolve their disputes outside of court, guided by an impartial arbitrator.

It is often compared to using a private judge to decide what happens to anything you can’t agree on around dividing money and property, or child arrangements.

The decisions made in arbitration can be legally binding, resulting in an arbitration award that outlines the agreements.

Can you use arbitration for divorce in England and Wales?

Yes, arbitration can be used as part of ongoing divorce proceedings to decide on any unresolved disputes over dividing money and property or child arrangements.

If a couple can’t agree on how to divide their money property or a specific issue, like splitting a pension, then an arbitrator can decide this for them.

It’s different going to court because the arbitrator can make a judgement without needing lengthy court proceedings, giving the couple more control and certainty.

Why choose arbitration?

Suppose a couple is at an impasse over how to divide their money and property, have tried a process such as amicable or mediation, and wants to avoid lengthy and expensive court proceedings. In that case, arbitration can be a good solution.

Someone may choose to go to an arbitrator instead of going through the traditional court route for many reasons, such as:

  • A judge has little time before a hearing to understand a family's unique set-up. Any decision made lacks this specific context. On the other hand, an arbitrator can learn more about the individuals they are helping, which will influence their judgement for that specific family's needs.
  • Couples can resolve disputes at a pace that’s comfortable for them both, with the freedom to choose arbitrators, location, rules, and the issues to be resolved
  • Couples can get more specialised knowledge in different areas of law for a more informed and specialised decision-making process. This could be tax experts, property specialists, etc.
  • It is often cheaper. Despite some costs, arbitration often proves more cost-effective than lengthy court proceedings, allowing couples more control over how much it will cost.
  • Proceedings are private, as opposed to public court proceedings.

The main purpose of arbitration is cooperation. It is usually less emotionally draining and stressful than lengthy court proceedings and encourages a more amicable post-divorce relationship. Once the award is given (if you aim to make the agreement legally binding), you can move forward with your lives, knowing the resolution is final.

Listen to this episode of The Divorce Podcast, where Kate Daly is joined by the highly skilled and experienced family solicitor and arbitrator Nadia Beckett:

What does the arbitration process look like?

  1. The process starts with a valid arbitration agreement to confirm a couple’s agreement to use an arbitrator
  2. Both people have the responsibility of selecting an impartial arbitrator or panel, emphasising the importance of a neutral decision-maker
  3. The arbitration process involves stages and procedures aimed at ensuring a fair and thorough resolution
  4. The arbitrator will decide based on their information, the needs of both people and ultimately, what is fair. This decision is formalised in a legal document called an award which can then be turned into a consent order to become legally binding.

For a precise and in-depth look at the arbitration process, we recommend looking at the Institute of Family Law Arbitrators website and downloading their guide.

amicable can prepare your award into a consent order at a fixed cost, which includes VAT.

To be turned into a consent order to become legally binding and enforceable, an arbitration agreement must meet the following conditions:

  • The agreement of both people to use arbitration
  • A mutually agreed written plan outlining the issues to be resolved
  • Selection of an independent and impartial arbitrator(s) with mutual agreement
  • Compliance with the laws and regulations of (E.g.,) England and Wales
  • Arbitrator approval to finalise the award, ensuring fairness and legality

If using the amicable negotiation process isn’t possible or safe, going down the arbitration route instead of the courts is more efficient and affordable. Arbitration offers a smoother path to resolving financial and children issues during a divorce by promoting cooperation and fairness.

Speak to amicable if you’re not sure

amicable provides negotiation services that can help people make arrangements cost-effectively and efficiently. We have a 95% amicable negotiation success rate and help couples separate in a kinder and better way.

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