Why is it safe to arbitrate?

arbitration

Why is it safe to arbitrate?

The Family Court is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  Partner Liz Cowell explains.

 

18 months into the Covid-19 crisis and practitioners are finding that contested proceedings for financial settlement following a divorce are taking many months, if not years, to resolve.

This is partially because the Family Court is flooded with urgent Children Act cases and applications for protection from domestic violence.  These cases are understandably given precedents over financial matters and have increased during the pandemic.

Consent Order

The process itself to obtain financial relief from the court is a one-size-fits-all, the parties having to attend at least two court hearings before the case proceeds to trial, when they find themselves unable to agree a Consent Order.

Due to the overburdened family list, hearings are frequently “bumped” usually for the benefit of urgent Children Act proceedings.

Arbitration

It is the case that the Family Court itself is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  When an arbitration takes place, an award is made by the arbitrator which is then turned into a Consent Order which the court will ratify.

The advantages of using arbitration is that it provides complete privacy, there is consistency, it is a speedier process and although the arbitrator needs to be paid it is cost efficient as there needs to be far less attendance at court and the process can be fine tuned to each and every separate application.

The Family Court’s support for arbitration could not be more clearly set out than in a recent High Court decision of Mr Justice Mostyn A -v- A [2021] EWHC1889 (FAM).

In this case the husband, who had agreed to arbitrate then chose not to be bound by the arbitrator’s decision and tried to get the matter set aside, using an expensive route to appeal to the High Court.  He failed.  Mr Justice Mostyn set out clearly in his judgment the correct way to pursue a challenge to an award – and he also found for the wife.

Hopefully his decision will help to persuade the parties that the process of arbitration provides closure, and the common excuse of some practitioners – that there is no proper means of appeal – has been finally put to bed.

Mostyn J emphasised a previous High Court decision of Lady Justice King in Hayley -v- Hayley [2020] EWCACIV1369 which confirms that a “challenge to an arbitral award should be dealt with broadly the same way and subject to the same principles as a financial remedy appeal in the Family Court from a District Judge to a Circuit Judge” and that this was how he was going to proceed to deal with the husband’s various applications before him.  He helpfully added an Appendix to his judgment which gives clear guidance to practitioners as to how to challenge an Arbitral Award, thus giving practitioners protection before proceeding in this manner.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

I want a divorce: your step-by-step guide

divorce procedure heather

I want a divorce: your step-by-step guide

“I want a divorce.” But what is the process – what do you need to know? Heather Lucy, family law solicitor, is here to help you with a step-by-step guide covering the divorce procedure.

Special Procedure

Don’t be frightened by this term.  All it means is that when you apply for a divorce in England and Wales, the process, in the vast majority of undefended cases (that is, a case where one of you wants to divorce and the other does not oppose), is called Special Procedure.  All this means is that a judge will consider the divorce petition on paper and neither you nor your spouse will need to attend court to explain why your marriage has broken down.

Please bear in mind there is no such thing as a “quickie” divorce, no matter how many times you might read about this in the media. If you want more details on the length of time a divorce might take, please take a look here.

It’s also important to remember that the reason for the breakdown of your marriage rarely impacts on how the finances are divided.  It is a common misconception for example that adultery makes a difference – more details here. The court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself. You do not need to wait to resolve financial arrangements before divorcing, but you should not divorce without first getting advice how it may affect you – I really want to stress this point.

Before you apply for a divorce, you will need either your original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.

Applying for a divorce

The divorce procedure is started by sending to the court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent, and either party to the marriage can apply to the court for a divorce.

Where possible, we will try to agree with your spouse which party will initiate the process and the grounds for divorce.  This will then allow the divorce procedure to continue on an undefended basis.

Grounds for divorce

There is only one ground for divorce, namely that the marriage has “irretrievably broken down”. To evidence this, the petitioner (applicant) for the divorce will need to rely upon one of

The Five Facts

In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:

– Adultery

– Unreasonable behaviour

– Desertion (in practice, this is rare, and difficult to prove)

– two years’ separation with agreement by both that there should be a divorce

– five years’ separation (the consent of the Respondent is not needed)

The most common facts relied upon are adultery, or unreasonable behaviour.

The Decree Nisi

Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days (possibly longer if the Respondent doesn’t live in the UK) to complete return the Acknowledgement of Service to the court.

The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a supporting Statement.

When the papers are received by the court they will be considered by a judge who, if satisfied with the ground for divorce, will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later, at which the Decree Nisi will be pronounced. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.

Do bear in mind that the Decree Nisi is actually an interim stage in the divorce procedure – it isn’t the final divorce, it is a document that says that the court does not see any reason why you cannot divorce.  Once you have your Decree Nisi, you can apply for the

Decree Absolute

Usually, the Petitioner waits until the finances have been agreed and approved by the Court before applying for the final decree of divorce, known as the Decree Absolute.  If the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse’s pension).

International divorce procedure

Some people may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision.  If you think this might apply to your situation, please do get in touch without delay.

Respectful divorce

Finally, I’d like to stress that here at McAlister Family Law we believe very strongly in achieving what we call a respectful divorce, wherever possible.  Our managing partner, Amanda McAlister, has spoken about this extensively in the media and shares her advice here as to the best way forward for couples who are divorcing.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

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