Opening the door to arbitration in family finances cases

The delays in hearing family finances cases arising from the current Covid-19 pandemic will continue for many months if not years. 

The impact of delay on separated couples is significant and prevents many from moving on in their lives. Until now arbitration has been a risky option. 

Choosing to arbitrate offers parties a faster resolution and the benefit of choosing who makes the decision in their case. The downside has been the loss of any real prospect of appeal if that decision maker gets it wrong. 

Attempts to challenge arbitration decisions in family cases have generally failed with the Higher courts determining such disputes by reference to the civil arbitration process. This removes any prospect of appeal save exceptional circumstances.

The recent Court of Appeal decision, Haley v Haley [2020] EWCA Civ 1369 by King LJ, Moylan LJ, Poppelwell LJ, effectively ensures that arbitrated decisions can be appealed in circumstances akin to appeals against orders made at first instance by the family court. 

The procedure is by way of Notice to Show Cause to specialist Circuit Judges ticketed to hear Financial Appeals or the High Court, depending upon the case. The court will then filter cases by application of principles in line with those applied to determine if permission to appeal should be granted. 

The downside is the loss of the certainty that an arbitrated decision will be converted into an order, save in highly unusual cases. The upside is that family practitioners can now advise clients to commit to  arbitration knowing that unjust outcomes can be challenged in the same way as they would be in court proceedings. 

Before clients commit to arbitration care should be taken to ensure that the agreement they sign is in line with this authority.