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An increasing number of divorcing couples are turning to private hearings to sidestep delays in the family courts.
Arbitration, where retired judges and seasoned lawyers act in disputes over children and money, has been allowed in family cases since 2012, but until recently take-up was relatively slow.
However, ongoing delays in the family court, compounded by lockdowns, has changed that. Indeed, more than a third of all arbitrations that have occurred since the scheme began nine years ago have taken place since January 2020.
The Institute of Family Law Arbitrators reports that there were 301 family law arbitrations in eight years up to January 2020, with that number rising to 428 by June this year.
Government figures meanwhile state that, on average, it takes around nine months for a family law case that does not involve the care system to go through the courts. This figure is 10 weeks higher than at the start of 2020. And, because cases involving the safety of children get priority in the family court, those involving financial disputes may be pushed back with little warning.
Sara Giannuzzi (55) who has two children and lives in Sittingbourne, Kent, told The Times that she switched to using an arbitrator in December 2018 after a final hearing in her financial dispute with her former husband was cancelled with one day’s notice.
She added that she had already paid thousands of pounds for a barrister. “I was devastated as we had been trying to reach a settlement since November 2017 and the costs were already so huge both financially and emotionally,” she said.
Within hours of their case being cancelled, Giannuzzi and her former husband hired a QC to arbitrate the case. The hearing took place within a few days and cost around £5,000.
“In hindsight, I wished we had gone straight to arbitration rather than the first court hearing,” Giannuzzi added. “It would have saved almost seven months of emotional hell and legal costs which, for me, would have been over £20,000.”
Unlike mediation, which brings separating couples to an agreement, arbitration focuses on those who cannot agree. The arbitrator’s decision is legally binding and it is shared with the family court to be turned into an order.