Family Arbitration Scheme – is another type of “court” the right way forwards for family dispute resolution?

The Family Arbitration Scheme has now launched to “provide another means of resolving family law disputes relating to finance or property, outside of a formal court process”. It is important to note that this does not  include non-financial children issues (ie. residence/contact/shared parenting).

Whilst a method of dispute resolution away from the official court process may have a positive impact, by enabling couples to avoid the inevitable problem of delays following cuts in court services and the limited availability of the judiciary to resolve contested cases, I consider that arbitration rather misses the point of trying to encouraging a non-positional approach via the other non-court based dispute resolution options including mediation and the collaborative family law process whenever possible.

It is stated that the arbitration process “should enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room”. However, I fear that arbitration will merely be another type of “court” for which a couple and lawyers will still adopt a hostile litigious approach. Whilst I accept that “court” is the only way for some couples to resolve their differences, I believe that easy access to arbitration is not what is really needed in the majority of family disputes and will more probably lead to greater animosity and bad feeling rather than benefit.

At least the court process for financial matters on divorce includes the Financial Dispute Resolution (FDR) appointment to encourage compromise, and the judge has the final say with case management powers. However, won’t a couple who want an answer quickly and cheaply, just ask for this answer from the arbiter without wishing for the arbiter to consider how a compromise might first be achieved? Won’t the arbiter’s hands be tied by what they are being paid by the couple to achieve? What say will the arbiter have in dictating to the couple how their case should be dealt with, rather than how the couple want their case dealt with?

As more information is released, then more answers should become available. For the time being, I for one remain sceptical about the whole process and wait to hear from a family arbiter to change my mind.

Source:

Family Arbitration website: http://ifla.org.uk/

Press release: http://ifla.org.uk/cms/wp-content/uploads/2012/02/Press-release-Family-Arbitration-DRAFT-Final.pdf

Gay marriage = Gay divorce – is it time to review divorce law as a whole?

A recent article about the prospect of gay marriage, has as caused me think about the inevitability of some gay marriages ending in divorce.

Currently, a civil partnership is the closest we have in England to gay marriage. However, whereas a “straight” marriage can end in divorce due to adultery, the dissolution of a civil partnership does not allow this option. I presume that the prospect of gay adultery (ie. a gay relationship outside of  the same sex civil partnership)  was to much for Parliament to consider.

This current law is in line with the fact that “adultery” for the purpose of a straight divorce does not include the husband going off with another man, nor the wife going off with another woman. These are both circumstance which I have come across in practice, and both cases have resulted in divorce for “unreasonable behaviour” by the unfaithful spouse, rather than for the “adultery” which is what has actually happened.

Therefore, when we see new legislation to allow gay marriage (which I think is inevitable in our society), then why shouldn’t there also be gay adultery being recognised in law? This would require new law for both gay and straight divorce and should finally do away with the current legal imbalance between straight and gay couples.

An alternative approach, would be to reform divorce law entirely, doing away with the “fault” based divorce options of adultery and unreasonable behaviour altogether. This doesn’t have to mean that divorce is any easier nor that marriage is any less important, but for the majority of couples I deal with would help both people (and their kids) move on more smoothly without the need to apportion blame when the marriage has irrevocably broken down. Time to re-exam the proposed legislation in the Family Law Act 1996?

Sources:

Telegraph: Don’t legalise gay marriage http://www.telegraph.co.uk/news/religion/9045796/Dont-legalise-gay-marriage-Archbishop-of-York-Dr-John-Sentamu-warns-David-Cameron.html