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Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

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1 March 2012

A new way to bypass the Court system on divorce


Mahie Abey

Two pieces of family law news in the last seven days worth noting – the launch of the family law arbitration scheme and the announcement of QCs for this year.

What is family law arbitration? It is basically agreeing to use a family arbitrator as a judge and to be bound by that person's decision in your case but, and crucially, outside of the Court system.

I think it’s a fantastic idea.

Those arbitrators who have trained so far are experienced family lawyers (including some retired High Court Judges) and therefore the pool is a strong one.  

Under the scheme those who can afford it can basically create their own Court system, with its own rules and procedures, bypassing the existing clunky Court systems and the delays involved.

The obvious riposte is isn’t that creating a two tier system: one for the rich and one for the not so? Yes, is the short answer as you will have to pay for these private judges. The longer answer is it’s not any worse than the existing alternative options of jumping the queue by paying for private health care or increasing your child’s life chances by sending them to a private school. If both of those things are acceptable then surely so is arbitration. (Of course, as for health and education, the best answer would be to reform the existing system so nobody feels the need to bypass it ....)

Technically a decision by an arbitrator is not binding and still has to be ratified by a Court, but I think that will simply be a formality. Given the stature of those involved in the scheme and its creation I consider that there is little chance arbitrated decisions will be overturned by the Courts - save for in the same way as appeals currently are, and as those in practice will tell you successful appeals are few and far between.

For those that can’t afford to arbitrate and pay the thousands it will cost to have a private judge there is Intelligent Divorce – the principle behind our site is that the barrister’s opinion (although non-binding) gives you something akin to an arbitrator’s decision, which you can then use to guide you as you come to your own agreement.

Now the new family silks – seven have been appointed and all are fine lawyers. I know two of them and the appointment in their case is thoroughly deserved, as I am sure it is in each case. 

What does taking silk mean? It is in essence a promotion to the most senior rank of the bar. It is more prestigious than becoming a hospital consultant as this is almost automatic after a certain point. Taking silk is far from automatic and by no means all that apply achieve the accolade. Also it means that the type of work you do becomes more weighty and serious in nature. However at the family bar that in itself is a problem because there is only so much of that work about. Therefore if you are a busy non-silk (known as a ‘junior’) then taking silk does carry with it risks, as you will be in competition with the other silks for a finite pool of work. It is not unknown for life in silk to be more challenging than life as a junior. But the rewards for those who are successful are rich indeed.