Abstract

For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.

Highlights

  • The Family Law Council of Australia has subsequently been asked to look at changes to court processes or other changes that could be made to promote voluntary arbitration in family law property proceedings

  • One last important aspect of family law arbitration in the United States is to be found in section 124A of the Model Act, which declares that a court or an arbitrator may modify alimony, post-separation support, child support or child custody awards under the same conditions stated in a jurisdiction's law for such modifications

  • If we are to go by the example set by the Institute of Family Law Arbitrators (IFLA) Scheme in England, the Family Law Act in Australia, the Model Act in the United States of America and the recent legislation in the province of Ontario in Canada,305 arbitrators should be obliged to resolve family matters strictly in accordance with South African law, and awards based on any other law should have no legal effect and be unenforceable

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Summary

Introduction

In 2001 the Law Commission recommended that the Act should be amended to permit arbitration in matrimonial property disputes which do not affect the rights of the spouses' children.. Who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters

The nature of arbitration
The need for family law arbitration
The advantages of family law arbitration
England
Australia
United States
Canada
Which matters should be arbitrated?
Choice of law or strict adherence to substantive law?
Who should act as arbitrators?
Should arbitration be compulsory or consensual?
What should the role of the court be in family law arbitration?
Should family arbitration be regulated in a separate Act?
Conclusion
Findings
Literature
Full Text
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