Arbitration is a relatively new approach that separating couples can use to resolve matrimonial, property and financial disputes.
With arbitration, participants appoint an arbitrator to hear and make a final decision about their case based on the arbitrator’s experience and knowledge of the law. The primary advantage of arbitration over court litigation is that participants can chose their arbitrator and can reach a resolution much sooner and less expensively than if the case went to court.
Arbitration can be effective, but a few rules apply:
- Both participants must agree on arbitration. A court can suggest that arbitration is appropriate, but cannot order the separating couple to arbitrate.
- The participants can only arbitrate on disputes about property, spousal maintenance or other financial issues. Disputes about children cannot be arbitrated.
- Disputes over property with third parties (eg. creditors or relatives claiming a share of the matrimonial property) cannot be arbitrated.
Some participants use the arbitration process to settle the whole of their property and financial dispute. Often, however, some participants will choose to arbitrate on one aspect of a conflict (for example whether certain property is matrimonial or relationship property) and then use the arbitrator’s decision as the basis for negotiating a settlement for other aspects of conflict (such as timing of distribution and apportionment of debts).
During the decision, an arbitrator can refer a question of law arising from the arbitration to the Family Court or to the Federal Circuit Court and await the Court’s decision.
If you choose arbitration, the arbitrator’s decision is final. There are only a few circumstances where the arbitrator’s decision can be reviewed by the Family Court or the Federal Circuit Court.
Once the arbitrator makes a decision, an Arbitral Award is registered in the Family Court. This has the same effect as an Order of the Family Court.
All Jones Mitchell family lawyers are experienced in working with clients through the arbitration process. Jones Mitchell senior partner Warwick (Rick) Jones is one of few qualified arbitrators in Australia. He has completed specialist arbitration training and is an approved practitioner acknowledged by the Law Council of Australia.