Family Arbitration

What Family Arbitration Is and Who Can Use It

Family arbitration is a private form of non-court dispute resolution in which you and your former partner appoint a suitably qualified family arbitrator to decide a dispute about finances or children, and agree to be bound by their reasoned written decision. In England and Wales it runs under two schemes operated by the Institute of Family Law Arbitrators (IFLA): the Financial Scheme and the Children Arbitration Scheme. The decision is called an award in a financial case and a determination in a children case.

The Family Procedure Rules name arbitration as a form of non-court dispute resolution, alongside mediation, neutral evaluation such as a private FDR and collaborative law. In family mediation you reach your own agreement; in arbitration someone independent decides for you, which is why the Family Mediation Council calls it the only process where the participants do not agree a negotiated outcome. Our mediation and out of court options hub compares the routes.

The Financial Scheme covers financial and property disputes arising from marriage, civil partnership, cohabitation and parenting, and provision from an estate, including claims under the Matrimonial Causes Act 1973, Schedule 1 to the Children Act 1989 and the Trusts of Land and Appointment of Trustees Act 1996; it does not cover the liberty of individuals, the status of a relationship, children's arrangements other than financial ones, bankruptcy, welfare benefits or jurisdiction and stay cases. The Children Scheme covers where a child lives, the time spent with each parent, schooling, routine medical treatment and other issues about parental responsibility and the child's welfare; it excludes a child's return from abroad, removal of a child from England and Wales except to a 1980 or 1996 Hague Convention country, life changing or life threatening medical treatment, and any case where a party lacks capacity or a person with parental responsibility is under 18 or is not a party. Removal is a point on which IFLA's published rules and its public FAQ read differently, so check the scope with IFLA before you sign.

What Binds You and How the Court Treats the Award

Both schemes run under the Arbitration Act 1996, which the Arbitration Act 2025 amended with effect from 1 August 2025, and the arbitrator decides the dispute only in accordance with the law of England and Wales. Section 58 of the 1996 Act provides that, unless the parties agree otherwise, an award is final and binding on them, subject to the right to challenge it under the Act.

Under English family law, though, the parties cannot exclude the court's own power to make orders. Where an award needs a court order to take effect (a pension sharing order or a clean break, for example) the scheme rules oblige both of you to apply to an appropriate court for an order in the same or similar terms, and the court keeps a discretion as to whether and in what terms to make it. For an agreed consent order, the President of the Family Division's 2015 Practice Guidance allows the award and the signed arbitration agreement to be lodged with the draft order and dealt with on paper.

If one of you objects, the Court of Appeal in Haley v Haley [2020] EWCA Civ 1369 held that the enforceable order following family arbitration derives its authority from the court, not from the arbitration agreement, so the court applies the ordinary family appeal test rather than the narrow challenge grounds in the 1996 Act. Haley was a financial remedy case on divorce, where the court's duty under section 25 of the Matrimonial Causes Act 1973 cannot be contracted out of. Whether the same approach reaches an award on a trusts of land, inheritance or Schedule 1 claim is not settled, so take advice on your own type of claim. The reluctant party must first show cause on paper, and the court only substitutes its own order if the judge decides the award was wrong: not seriously or obviously wrong, but just wrong.

In a children case the arbitrator must treat the child's welfare as the paramount consideration and apply the welfare checklist in section 1(3) of the Children Act 1989, mirroring the duty section 1(1) places on a court. The determination binds you both, subject to any change the Family Court considers ought to be made under the Children Act; our child arrangements orders page explains what one can contain.

Evidence, Safeguarding and Common Problems

In a financial arbitration the arbitrator decides, where you cannot agree, whether the case is decided on paper or at a hearing, and whether to appoint an expert or assessor, and can make temporary orders, including maintenance for a spouse. Family proceedings always carry a duty of full and frank disclosure, and the arbitrator can direct the disclosure and production of documents between you.

In a children arbitration safeguarding comes first. Both parents must give accurate information about safety and protection from harm in Form ARB1CS and a Safeguarding Questionnaire, and the arbitrator may not accept the appointment until that material, with basic criminal record disclosures and any Cafcass reports, has been considered. If IFLA or the arbitrator considers the dispute unsuitable the reference is treated as withdrawn, and the arbitrator can end the arbitration on welfare grounds at any stage.

Problems we see include:

• One of you is unwilling to sign: arbitration needs both signatures on Form ARB1FS or ARB1CS and nobody can be forced into it, although refusing non-court dispute resolution without good reason can count against you on costs in financial remedy proceedings.
• Second thoughts after signing: the agreement is binding, and if financial remedy proceedings are issued the other party can apply for a stay, which section 9(4) of the 1996 Act says the court shall grant unless the agreement is null and void, inoperative or incapable of being performed. In a children case the Family Court keeps its own welfare jurisdiction, so a stay is a matter for the court.
• Safety concerns or domestic abuse, where the arbitrator may be under a duty to contact external agencies and arbitration may not be suitable. Call 999 in immediate danger, or the National Domestic Abuse Helpline on 0808 2000 247.

How the Family Arbitration Process Works

1. We advise whether your dispute falls within a scheme and whether arbitration suits it.
2. You both choose an arbitrator from the IFLA panel, agree a shortlist for IFLA to pick from, or ask IFLA to nominate one, and agree the arbitrator's terms and fees.
3. You both sign Form ARB1FS or ARB1CS, which records the agreement to arbitrate, the issues to be decided and your acceptance of the scheme rules, and submit it to IFLA with, in a children case, the Safeguarding Questionnaires.
4. The arbitrator accepts the appointment and the arbitration formally begins. Where court proceedings are already on foot, you apply for or consent to a stay until the award is delivered. The arbitrator gives directions on disclosure, evidence and whether the case is decided on paper, by video or at a hearing.
5. Each side exchanges disclosure and statements and makes submissions.
6. The arbitrator delivers a written, dated and signed award or determination with reasons, once the fees have been paid.
7. Where a court order is needed, we draft it to reflect the decision and apply to the appropriate court with the award, the signed arbitration agreement and Forms A and D81. Where proceedings were stayed, the court ordinarily lists a directions appointment or mention hearing, which can be vacated if a consent order is approved.

Costs, Fees and Who Pays

The arbitrator's fees are agreed at the outset on an hourly, daily or fixed fee basis and are usually paid in equal shares with IFLA's fees and any venue costs. Each of you normally pays your own legal costs, subject in both cases to the arbitrator's discretion to order one party to pay more because of that party's conduct in the arbitration.

An application to the court for an order reflecting the award carries a court fee, and help with fees may be available on a low income: the amounts are on the GOV.UK court and tribunal fees page. Our own charges are on our family law fees page; we do not offer legal aid.

When Legal Advice Is Especially Important

IFLA strongly recommends that every prospective participant takes legal advice before signing the arbitration agreement. Advice matters most where:

• you are choosing between arbitration, a private FDR, collaborative family law and solicitor-led negotiation, since only arbitration ends in a decision that binds you both unless a court is persuaded to make a different order
• assets, a pension or a party are abroad, since the arbitrator applies only the law of England and Wales and jurisdiction disputes sit outside the Financial Scheme
• there are safeguarding concerns in a children case, or a parent is considering a move abroad, which our relocation with children page covers
• you want to challenge an award, the other side is resisting an order in its terms, or court proceedings have already started

How RakLAW Solicitors Can Help

RakLAW Solicitors, founded by solicitor Rakesh Prajapati, advises on family arbitration from 42 Shad Thames in Southwark, a short walk from Tower Bridge. We say honestly when another route would serve you better.

We draft the order, lodge it with the award, and deal with any show cause application, stay or clean break point that arises. Your first 15-minute consultation is free: call 0203 345 2000 or book an appointment.