Which issues can you arbitrate in finance matters?

Financial and property disputes arising from:

• Marriage/civil partnership and its breakdown (including financial provision on divorce or after an overseas divorce, judicial separation or nullity)
• Cohabitation and its termination
• Schedule 1 to the Children Act 1989
• Provision for dependents from a deceased’s estate under the Inheritance (Provision for Family and Dependents) Act 1975.

Any interim issues (e.g. legal fees funding or interim maintenance) arising in connection with the above disputes can also be addressed within arbitration.

How can arbitration help to resolve financial disputes?

Privacy

Arbitration is an entirely private process, unlike court proceedings.

In recent years, there has been a push for increased transparency in the family courts. Parties to financial remedy proceedings no longer have an automatic right to anonymity. The media is often granted access to certain documents in the case and permitted to report on the case, sometimes including reporting detailed financial information. In many cases, only the children’s names and the parties’ address(es) are anonymised.

In addition, the Transparency Reporting Pilot scheme was introduced in three family courts in January 2024 and extended to the High Court in November 2024. The scheme permits accredited journalists and legal bloggers to attend and report on financial remedy court hearings.

Engaging in arbitration to resolve financial disputes ensures confidentiality and allows matters to be dealt with discreetly and privately.

Speed

In complex cases, the in-court process for resolving a financial dispute can take as long as 18-24 months from start to finish, due largely to the delay in listing court hearings. Arbitration can be significantly quicker, as the arbitrator will have more availability and flexibility.

Arbitration helps reduce the emotional and financial cost of litigating financial disputes by avoiding the congested court list and lengthy delays between hearings.

Mimic court process

To benefit from the privacy, speed and judicial continuity offered by arbitration, while maintaining the rigour of the in-court process, our clients often agree to use arbitration as a private court process. This means the arbitration can be structured to reflect the usual stages of in-court proceedings:

• Phase 1:
  • Disclosure in court-prescribed forms
  • Opportunity to raise questions and request further information in respect of the other’s disclosure
  • First Appointment (the mandatory case management hearing)
• Phase 2:
  • Providing further disclosure as ordered at the First Appointment
  • Obtaining expert evidence as to property and/or company valuations
  • Private Financial Dispute Resolution hearing (FDR) (the mandatory settlement hearing held without prejudice)
• Phase 3:
  • Witness evidence
  • Further directions hearings as required
  • Final hearing at which a final, binding decision of the arbitrator will be made

In most of our financial cases that use arbitration, a court application will have been issued and the court will have agreed to put its process on hold while arbitration proceeds.

Tailored approach

Many of our clients agree a tailored approach, committing to arbitrate phases 1 and 2 above (with court proceedings having been issued and paused). This approach means they do not need to commit at the outset to arbitrate the whole process. However, they can still benefit from all the advantages of arbitration up to the private FDR (speed, privacy, cost-effective), while ensuring full disclosure and any necessary expert evidence is obtained.

Alternatively, arbitration can be used in ongoing court proceedings to resolve specific issues that might need urgent resolution, such as interim maintenance or requests for further disclosure.

Appointed arbitrator

Whether the parties choose to arbitrate the whole matter or a specific issue, they benefit from the continuity of having an allocated arbitrator and access to the arbitrator if an urgent issue arises.

Expert evidence

The arbitrator has the power to order the same expert evidence from a qualified professional as an in-court judge, for example, property and company valuation evidence, pension reports, and mortgage capacity reports.

Compatible with other forms of non-court dispute resolution (NCDR)

As with the in-court process, arbitration can take place in parallel with other forms of NCDR, such as mediation and private FDRs. This affords parties the opportunity to reach an agreement as to the settlement of their respective financial claims rather than to have the decision imposed upon them by an arbitrator.