The backlog in the family court system – exacerbated by the 2020 pandemic – puts divorcing couples in a frustrating position. Our family lawyers can see first-hand how the inability to get a hearing date at a reasonable time forces families having to put future plans on hold and to live with unresolved financial and child arrangement issues for long periods of time. Is arbitration the answer?

At Brookman we have always encouraged couples to try to agree to settle their differences away from court. And at a time when there’s increased delay in the family court service, alternative dispute resolution seems a more sensible approach than ever. We’ve discussed mediation and other forms of dispute resolution before. Here we look specifically at arbitration and whether it’s a reliable way to reach a financial settlement when you divorce.

Using Arbitration For A Divorce Settlement

Mediation may be a more familiar and commonly used dispute resolution mechanism. But the use of arbitration (traditionally only used in commercial disputes) has been greatly extended to family cases as a way of reaching a legally binding decision in private. Its suitability for settling sensitive family law disputes is well-recognised and promoted by The Institute of Family Law Arbitrators.

In a commercial context one of the most attractive aspects of arbitration is that the decision by the arbitration panel (called an ‘award’) is binding. It can only be challenged in very limited circumstances.

Challenging An Arbitration Decision

This finality is not always welcomed in family cases. If an arbitrator makes a decision that’s plainly wrong the aggrieved spouse may be unable to challenge the decision in court. That’s what happened in BC v BG (2019). The wife failed in her bid to get the court to overturn an arbitration decision she was unhappy with. The judge likened a decision to go to arbitration to the decision to sign a prenuptial agreement – that is, one with which the courts should only interfere with extreme reluctance.

This high barrier to challenging an arbitrator’s decision – the risk of being stuck with a decision you can’t challenge in court – is perhaps one reason why arbitration has not been used as much as it could be.

Hayley v Hayley: Making Challenges To Arbitration Easier?

If the 2020 case of Hayley v Hayley is anything to go by it seems that – to a degree – the courts position on challenging arbitration awards has shifted.

As in BC v BG the husband and wife in Hayley v Hayley were frustrated by delays in the court system. Unable to get a court date they opted instead for arbitration.  Mr Hayley was unhappy with the arbitrator’s decision and sought to challenge it. This was despite his agreeing before arbitration that the decision would generally be regarded as final.

The Court of Appeal decided that the arbitration decision could be revisited. It did not have to be ‘seriously or obviously wrong’ (the high test that applied in cases like BC v BG). Instead if the arbitrator’s award were ‘just wrong’ the family court was entitled to make its own order over and above that of the arbitrator.

The Court of Appeal decision acknowledged the benefit of finality in arbitration schemes. Crucially however, in an environment where parties should be encouraged to use alternatives to the courts to settle their differences, the court also emphasised that couples shouldn’t be put off from using arbitration for the sole reason that they wouldn’t be able to challenge the decision.

Hayley v Hayley has been interpreted as a decision that will usher in a new era where arbitration becomes a more common choice for divorcing couples – even those of modest means.


The decision in Hayley gives people unhappy with an arbitration award greater room for manoeuvre when it comes to challenging the decision. But it does not mean arbitration awards can be challenged easily. There is still a relatively high threshold to cross before the finality of an arbitration decision can be undone. Overall we agree with many commentators and think the Hayley judgment will lead to a greater take-up in arbitration as a means to settle family cases – without removing the sense of finality that an arbitrator’s award is associated with.

Got a question? Ask us now…

Kindly complete the form below to send an enquiry. Your message will be sent to one of our solicitors. Discretion is guaranteed.

Your Information

  • Consider including information such as: the name of your spouse (if relevant), the country you live in, the background to your problem.

  • This field is for validation purposes and should be left unchanged.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Over 2000 FREE
consultations and counting…

Our free consultation can help you more clearly understand the legal issues relating your case and what your options are to move forward.

Request your free consultation

Or send us an enquiry

Talitha offers sound advice, asks the right questions and advises you with what you need to know not just what you want to hear. I have no hesitation in recommending her services.

Sep 2021   Anu Vidyarthi

Henry took the time to go through all the details of my separation thoroughly. He was very clear on what my options were and what I needed to do to have a seamless agreement with my ex. Thank you for all your help!

Aug 2021   Sandeep Cina

Talitha provided a free consultation and could not have been more helpful. Her guidance was pragmatic and she managed my expectations both on costs and the process. Talitha offered practical advice to find a solution that could avoid going to court.

Aug 2021   Richard Doyle

I had an initial chat with Kevin, the senior associate. Extra ordinary talent to convince parties, very intelligent and I was wonderstuck at his brilliant knowledge of family law.

Aug 2021   Mrs. M. Merchant

I have nothing but positive feedback about this firm... Lorraine Imms from Brookman was absolutely brilliant... Her knowledge is exceptional and she has kept me informed through every step... I'd give ten stars if I could!

Jun 2021   Martin Byrne

Myself and my mother had a free video consultation with Mr. Brookman regarding my mother's divorce and were both impressed with his knowledge on divorce matters, professionalism and understanding. Henry then followed up with us with a clear plan of what he suggests we do...

Mar 2021   Bruna Cordeiro Pezzano

I had a consultation with Mr. Brookman and was impressed with his honesty, knowledge and understanding of my situation. He seemed to take a genuine interest in my case, which immediately put me at ease.

Mar 2021   Chichi

Very swift response and concise information. I had a very engaging free consultation with Mr Brookman initially which was informative and professional.

Feb 2021   Garry Ralph

I would like to say my experience with Mr Brookman was an extremely positive experience. His knowledge, advice and compassion put me very much at ease and made a very difficult situation much more bearable.

Feb 2021   Jenny Brock

Very helpful, and honest about my situation even though it wasn’t business for them at this time. Would recommend.

Jan 2021   Natalie Roche

Google Reviews
Ask A Question

Contact Us

If you have questions, contact us now, we can help you.

Enquire Now

Or call us on +44 (0)20 7430 8470