The treatment of Personal Injury damages in divorce proceedings; the risks, and the measures that every practitioner should consider
In February 2010, The Honourable Mr Justice Baker was presented with a draft order from the legal teams of a divorcing orthodox Jewish couple in the case of AI v MT. The couple disagreed about the division of finances, issues regarding their two young children and the Get (the religious recognition of the divorce which the husband gives to the wife). After many months of litigation and negotiations they agreed to refer their disputes for determination by the New York Beth Din (the Jewish religious Court) and they invited the approval of Mr Justice Baker in doing so.
The couple agreed “to enter into binding arbitration before Rabbi Geldzehler" and specifically asserted that they would “abide by any determination of the family issues through binding arbitration before the New York Beth Din".
At this date, there was no precedent of referring a matrimonial case for binding arbitration and Mr Justice Baker expressed his initial concerns. However, he indicated that the court “would in principle be willing to endorse a process of non-binding arbitration” but insisted that the parties produce further information regarding the approach of the rabbinical authorities to resolving disputes, in particular as to the care of the children.
In April 2012, Mr Justice Baker approved a consent order between the couple which had been achieved after careful albeit lengthy rabbinical arbitration. This marks one of the first instances that a court has considered and agreed to a request to refer issues surrounding divorce, children and finances to arbitration and most particularly to an arbitration scheme run by a religious court.
In 2012, the Institute of Family Law Arbitrators (IFLA) launched a scheme to enable financial remedy disputes in family cases to be resolved by arbitration. Divorcing couples now have the option of appointing a qualified arbitrator to resolve their dispute and make an award by applying the laws of England and Wales, in the same way as the Family Courts do.
Arbitration is attractive to couples who would prefer to have their disputes adjudicated in a quicker, cheaper, more private setting than a court room. An added benefit is that the couple can choose their arbitrator rather than having to accept whichever judge is allocated their case.
We are in the relatively early stages of family arbitration. Like many new schemes, it has been approached with some caution but the advantages of using arbitration to obtain a binding decision in financial disputes are clear.
As pressure upon the family court services continues to increase, family practitioners and Judges shall surely encourage arbitration in the right cases. What the case of AL v MT illustrates is that not only can arbitration be extended to disputes outside of financial remedy proceedings but it can, where appropriate, embrace the wish of religious couples to have their dispute resolved by their religious authorities, so long as the principles of English Law are strictly applied.
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