S v S

Where parties agree to be bound by an arbitral award under the IFLA Scheme, their agreement is ordinarily the decisive factor in approving a financial remedy consent order. The court retains jurisdiction and must ensure that the proposed order gives effect to the award and is workable. It should investigate further only where something indicates that the arbitral process has been fundamentally vitiated. Approval will therefore be refused only in the rarest cases, absent a compelling countervailing factor. A party seeking to resile should ordinarily proceed by the abbreviated notice to show cause procedure. The hearing should focus on the limited grounds of challenge or appeal under the Arbitration Act 1996.

The parties, who had agreed to arbitrate their financial claims following divorce under the IFLA Scheme, applied for approval of a consent order reflecting the arbitrator’s final award. The application was transferred from the Guildford County Court and dealt with on paper. The parties had lodged the arbitration agreement, award, Form D81 and draft order.

The central issue was the proper approach of the court when asked to approve a consent order founded on an IFLA arbitral award, together with provisional guidance on the procedure where a party seeks to resile from such an award.

1. Consent order approved. The court approved the order because it reflected an arbitral award made under the IFLA Scheme, to which the parties had agreed to be bound.
2. Party autonomy and the parties’ decision to submit their dispute to arbitration constitute a single magnetic factor of determinative importance. In the absence of very compelling countervailing factors, the award should determine the order made by the court. The arbitral award is, in its nature, stronger than an ordinary agreement between the parties.
3. The judge is not a rubber stamp, but is a watchdog rather than a detective. The judge must check that the proposed order gives effect to the award and is workable. Further investigation is required only where something indicates that the arbitral process has gone so seriously wrong as fundamentally to vitiate the award. Such cases will be rare.
4. Where a party seeks to resile, the other party should use the abbreviated notice to show cause procedure. The parties will ordinarily lose any entitlement to more than a highly abbreviated hearing. The court should define the genuinely disputed issues and focus on whether a permitted ground of challenge or appeal under the Arbitration Act 1996 is established.
5. The IFLA Scheme requires the arbitrator to apply the law of England and Wales. Any resulting financial order must therefore pursue a fair outcome without discrimination between husband and wife. The judgment’s observations were confined to an arbitral process applying that legal system.
6. It was appropriate to extend the streamlined procedure used for collaborative-law consent orders to consent orders reflecting IFLA awards. Parties should lodge the arbitration agreement and award, and the order should contain suitable recitals identifying those documents.

First-instance application transferred from the Guildford County Court and determined by the High Court (Family Division) on paper. The consent order was approved.