Splitting Up in Lockdown

Is family arbitration the best option to reach a financial agreement?

If you are going through a separation or divorce during the latest COVID-19 lockdown you will undoubtedly be worried about how you will reach a financial agreement with your ex-husband, ex-wife or former partner.  You may also be concerned about rising infection rates and your safety in physically attending a financial court hearing. Alternatively, you may be worried about delays in achieving a court date because of the impact of COVID-19 on the family court system. In this blog we look at whether family arbitration is the best option to reach a financial agreement if you are splitting up in lockdown.

What is family arbitration?

Many couples who are in the process of splitting up have not heard about family arbitration. That’s because couples tend to reach a financial agreement through solicitor negotiations, financial court proceedings or family mediation or a combination of the three options.

In family arbitration you and your partner jointly appoint a family arbitrator. The job of the arbitrator is to make a financial settlement decision. That decision will be final and binding on both of you.

A family arbitrator is therefore like a private judge of the family court as both have the authority to decide on what is a fair financial settlement and make a binding decision.

What decisions can a family arbitrator make?

A family arbitrator can be asked to decide a financial settlement or a property disputes or some children issues arising from either a married or an un-married family relationship.

What are the advantages of family arbitration during the COVID-19 lockdown?

The advantages of family arbitration apply generally, whether the UK is in lockdown or not. However, the global pandemic emphasises some of the real benefits of family arbitration such as:

• You can arrange an arbitration hearing in a place that is convenient to both of you and even online if you prefer. You may feel more comfortable in attending the venue for an arbitration meeting instead of going to a family court for a financial settlement hearing
• When choosing a family arbitrator, you can check their availability and timescale to hold a family arbitration hearing. If you start financial settlement court proceedings, you don’t get that luxury as you just have to accept court and judge availability and that can be impacted by COVID-19
• The use of family arbitration can be more discreet and confidential than traditional court proceedings
• One family arbitrator will make all decisions, so you won’t experience having as series of court hearings with different family judges
• You and your partner can adapt the family arbitration process to suit your circumstances so, for example, you could agree that you don’t need a directions hearing or that you want the family arbitrator to have a specific type of family bundle of papers and documents to help make their decision, whereas family court rules on paperwork in financial settlement proceedings are far more prescriptive.

Is family arbitration suitable for everyone splitting up in lockdown?

In some situations, family arbitration isn’t suitable. For example, if you need an injunction order to stop your husband or wife from selling off or transferring assets to try and defeat and thwart your financial settlement claims.

Alternatively, family arbitration may not be suitable if you need third party disclosure, for example, from a trust fund or a relative, and they won’t provide disclosure or cooperate in the family arbitration process.

Will a financial settlement be different if family arbitration is used rather than financial court proceedings?

Whether you use financial court proceedings or family arbitration to reach a financial settlement the family court judge or family arbitrator will exercise their discretion when determining what financial court order or arbitration award to make.

When a family law judge or family arbitrator exercises their discretion, they do so using the factors set out in the Matrimonial Causes Act 1973. This means that the financial court order or family arbitration award should be within the same range or band of reasonable orders whether court proceedings or family arbitration is used by you to reach a financial resolution.

What is the arbitration process?

If you decide that you want to use family arbitration to reach a financial settlement it is important that both you and your spouse or partner understand the arbitration process.

The arbitration process is as follows:

• An application form is completed. The form is referred to as an ARB-1
• The family arbitrator’s fees are agreed. Whilst you will need to pay a family arbitrator the family arbitration process may nonetheless be cheaper than traditional court proceedings because you may be able to conclude the arbitration process more efficiently and without the need for as many hearings
• There is a family arbitration directions hearing. This type of hearing looks at preliminary matters. If a husband and wife agree that this type of hearing is not necessary, then this can be avoided. Alternatively, the preliminary issues could be dealt with by solicitors and the family arbitrator by email. Family arbitration gives more flexibility than a financial court order application over the financial settlement process
• There is an arbitration hearing. The hearing could take place online because of concerns about rising infection rates and COVID-19 or could be facilitated at a solicitor’s office or at a neutral venue, such as the offices of the family arbitrator. In some cases, a husband and wife may agree that the family arbitrator should make their decision solely based upon reading the paperwork supplied. After either reading the documentation or listening to the husband, wife or partner the family arbitrator will make a decision, called an award. This is a binding decision
• The court will be asked to make a financial court order in accordance with the terms of the family arbitration award. A formal order is normally needed in a financial family arbitration to implement the family arbitration award. There is a fast track court procedure available to quickly convert an award into a court order.

If you want more information about family arbitration and how it may help you and your partner reach a financial settlement during the COVID-19 imposed lockdown then it’s best to speak to specialist divorce and financial settlement solicitors about arbitration and your options.

Our Manchester and Cheshire divorce solicitors

The friendly team of specialist divorce solicitors at Evolve Family Law can provide legal help with your separation and divorce proceedings, as well as your financial settlement. For all your family and private client law needs call Evolve Family Law or complete our online enquiry form.

The Evolve Family Law offices are located in Whitefield, North Manchester and Holmes Chapel, Cheshire but we also offer remote meetings by appointment by video call or telephone.