LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
On 14 January 2014 the President handed down a judgment which provides the strongest support for the use of arbitration in family and other relationship breakdown disputes.
He had before him an application for financial remedy orders, lodged with the consent of divorcing spouses who had agreed between themselves to be bound (in accordance with the IFLA Scheme and the terms of the arbitration agreement which they had signed) by the arbitrator's award. He approved the order without comment, but took the opportunity to deliver a number of statements of principle in relation to such arbitrations and the appropriate court response to them.
Of particular note is the President's endorsement of the IFLA Scheme as, effectively, well fit for purpose. Also of general interest are the ringing terms in which he has stressed how arbitral awards enjoy, as one species of agreement whereby the parties consent to bind themselves, a special status having regard to the conjoined concepts of party autonomy and their 'magnetic factor' status.
Hitherto family practitioners (and potential arbitrees) may reasonably have harboured doubts how readily family court judges might cooperate in reflecting arbitral awards in court orders - whether in reaction to an application for consent orders cooperatively sought by both parties, or when one party calls on the other (resiling) party to show cause why such a reflective order should not be made. The President has made clear his view, which is that forensic ferrets should stay firmly caged and would-be bloodhounds on their leash. So S v S should resolve these anxieties, and significantly accelerate take-up of this versatile, swift, confidential and usually less costly mode of financial issue resolution for disputants for whom any form of negotiated settlement seems out of their reach.
The full judgment contains many other important points, of which what might be considered the most salient have been gathered on a comment sheet, downloadable here.
This commentary was first published on the FamilyArbitrator website.
Sir Peter Singer is a Family Dispute Resolution Facilitator and Arbitrator, 1 Hare Court Winner of the Family Law Most Innovative Family Lawyer of the Year Award 2012.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
Formerly entitled the Ancillary Relief Handbook this is the first resort for thousands of...