Are you separated? Have you tried everything to end your property matters with your ex? No matter how hard you negotiate or mediate – you just can’t reach agreement? You fear the next step may be going to court, but this is the last thing you want. Going to court comes with financial cost and impacts your emotional and psychological health.
So, what can you do if you and your ex can’t agree?
The recent trend (although one that has been always available) in dealing with divorce property matters is choosing the option of Family Law Arbitration.
What is Family Law Arbitration?
Below are 7 things you should know about Family Law Arbitration to help you decide whether this is the right option for your matter:
- You only arbitrate if all other dispute resolutions have not worked. For example, if you and your ex have hired divorce lawyers and you’ve mediated with them and even without them and you’ve tried to negotiate by yourselves and through the divorce lawyers and still no result – then instead of going to court, consider Family Law Arbitration.
- You can only Arbitrate property matters – parenting matters are excluded.
- You and your ex must be willing and agreeable to enter Arbitration- it’s a voluntary process.
- You and your ex continue to use your divorce lawyers and choose an Arbitrator who controls and manages the process.
- The Arbitrator will try and help you to resolve your issues but unlike a mediator, who doesn’t make decisions, an arbitrator will make a decision about your money and property matters.
- Family law arbitration is quicker and cheaper than going to court and you will have a decision within a month (unlike going to court where you could wait up to a year for a final decision).
- You get an Arbitral Award – which is registered with the Court and becomes legally binding.
What if you don’t like the Arbitrator’s decision?
If you don’t like the Arbitrators decision, you can challenge the decision but only on errors of law or procedural fairness or bias. Simply not agreeing or liking a decision is not enough to set aside the arbitral award.
What does the Family Law legislation say about Family Law Arbitration?
The most recent case in Australia is Braddon and Braddon [2018]where His Honour Judge Harman determined whether an Arbitral Award ought to be set aside.
Facts of Braddon and Braddon:
- Mr and Mrs Braddon, aged 74 and 77 respectively, were married for 26 years and separated for 25 years (they had not divorced);
- In 2015 Mr Braddon filed at Court for property matters;
- On 27 November and 18 December 2017, Mr and Mrs Braddon agreed to have their property matters arbitrated;
- An Arbitral Award was made on 22 January 2018;
- The Arbitral Award was registered on 1 March 2018;
- Mr Braddon sought to set aside the Arbitral Award he did not show any reasons as to errors of law or fact or bias.
What the Court said:
- You can’t oppose the registration of an Arbitral Award unless an error on law or the Arbitrator showed bias or did not follow procedural fairness (giving each party the right of reply or to put forward their case) has been made by the Arbitrator;
- If a party wishes to oppose the Arbitral Award, they must do so within 28 days and although not compulsory it is best to file an affidavit explaining the reasons;
- The Court does not have to re-hear the entire case again when it conducts a review of whether to set aside the Arbitral Award or not;
- The Arbitral Award was reasonable and fair for both the parties.
The Court decided in Braddon and Braddon not to set aside the Arbitral Award.
What this means for you if you’re stuck in disagreement with your ex about property or financial matters?
Simply, it means that you have another option – you and your ex-partner can choose to be proactive and find non-court-based ways of solving your impasse. You can now have peace of mind and finality by opting into Family Law Arbitration.
It’s something to seriously consider – and if it’s right for your situation – then go for it!
Disclaimer
The article is written for information purposes only. It is not intended to replace specific legal advice for your situation. Should you require any further information contact us on 02 8999 1800 or email info@cominoslawyers.com.au