Arbitration and property settlements

When you can go to arbitration

If you and your ex-partner can agree, you can go to arbitration for a property settlement, instead of making an agreement or applying for court orders.

You can attend:

• a private arbitration, or
• court ordered arbitration - the court can only make an order referring the proceedings for arbitration if you and your ex-partner give consent.

You and your ex-partner must make a joint application for court ordered arbitration. 

Financial disclosure

You and your ex-partner must comply with your duty of disclosure before you go to arbitration, whether private or court ordered. You have a duty to your ex-partner and the arbitrator to provide full and frank disclosure of all information relevant to your case in a timely manner.

Before the first preliminary conference for your arbitration, you and your ex-partner must serve on each other:

• a financial statement, or an equivalent document setting out your complete financial circumstances, and
• all documents that show your complete financial circumstances, such as your most recent tax returns.

The family law rules covering disclosure will apply in your case, unless you and your ex-partner agree otherwise.

All documents used in arbitration are confidential. They can only be used for arbitration and can’t be shared with anyone not involved in the case, except with the court’s permission.

For more information, see Financial disclosure in property cases.

Pre-action procedures

You must follow the pre-action procedures if you are going to a court ordered arbitration for a property settlement, unless you are exempt. If you don’t, the court may stay (stop) your application for court ordered mediation until you comply.

If you are attending a private arbitration, you should take genuine steps to resolve your dispute by complying with the pre-action procedures.

For more information, see Pre-action procedures in property cases.

Agreement

Before you can attend arbitration, you must make an arbitration agreement.

An arbitration agreement must be in writing, and signed by you and your ex-partner. It must include the following information:

• your name, address and contact details
• the arbitrator’s name
• the date, time, place, and estimated duration of the arbitration
• the issues that will be dealt with at arbitration
• details about the arbitration process, such as exchanging documents and witness statements
• the circumstances in which the arbitration may be suspended or terminated
• the estimated of the cost of arbitration and details about how you and your ex-partner are going to pay for arbitration
• a statement by you and your ex-partner that you received legal advice before signing the agreement – the lawyer who advised you must also sign the agreement.

You should sign your arbitration agreement before you apply for court ordered arbitration.

Cost of arbitration

You and your ex-partner should try to reach an agreement between yourselves about how you are going to pay for arbitration. If you can’t reach an agreement, you must split the cost of arbitration equally.

Your arbitration agreement must cover how you are going to pay for arbitration, including:

• what share of the costs you are each responsible for
• when you will pay your share of the costs – within 28 days, or another time agreed by you, your ex-partner and the arbitrator, after an award has been made. 

Applying for court ordered arbitration

You and your ex-partner must make a joint application for court ordered arbitration.

To do this, you must complete and file:

• a Form 6 – Application for Arbitration
• a financial statement – one for each of you (unless you have both previously filed one and your financial circumstances haven’t changed)
• an Affidavit – Family law and child support, if your financial statement doesn’t fully disclose your financial circumstances.

You can get a copy of these forms from the Family law forms page on the Federal Circuit and Family Court of Australia website.

Before your application is heard, you must provide the court:

• the name of your proposed arbitrator, or the process you will use to decide who your arbitrator will be
• the date that arbitration must be concluded – no longer than six months from the date of referral to arbitration
• the anticipated date of your first preliminary conference with your arbitrator, and
• a copy of your signed arbitration agreement.

You can find an arbitrator on the Australian Institute of Family Law Arbitrators and Mediators website.

Urgent application

If you want your application for court ordered arbitration to be heard urgently, you must file:

• a completed Application in an Arbitration
• an Affidavit – Family law and child support – stating the reasons why your matter should be heard urgently
• a cover letter, explaining why your application should be heard urgently, and referring to the relevant paragraphs in your affidavit that discuss the urgency of your situation.

Arbitrator’s duties

The arbitrator must:

• decides the issues in your case according to the law
• ensure procedural fairness in the arbitration
• inform you and your ex-partner in writing if, during the arbitration, they become aware of anything that could result in direct or indirect bias in favour of, or against, you or your ex-partner.

Confidentiality

The arbitrator must give an oath or affirmation that they won’t disclose to anyone any communication or admission made to them, unless it is reasonably necessary to:

• protect a child
• prevent or lessen a serious and imminent threat to the life or health of a person, or their property
• report or prevent an offence involving or threatening violence, or intentional property damage
• carry out their functions as the arbitrator
• to assist a person to represent a child under an order under section 68L of the Family Law Act.

However, any communication you have with the arbitrator isn’t confidential and may be used in court.

Suspending or terminating an arbitration

The arbitrator can suspend arbitration if you or your ex-partner don’t comply with a procedural direction.

The arbitrator must terminate arbitration if you or your ex-partner don’t have the ability to take part in the arbitration because:

• you don’t understand the nature and possible consequences of arbitration
• you can’t give adequate instructions to your lawyer
• you can’t satisfactorily appear in person during arbitration.

The arbitrator must notify the court if they suspend or terminate arbitration.

Binding decision

Once the arbitrator has heard all the evidence in your case, they will decide how the assets will be divided between you and your ex-partner. The arbitrator’s decision is binding on you and your ex-partner.

The arbitrator will put their decision into an award. The award must be typed and a single document. It must include:

• the reasons for the award, and
• the arbitrators’ findings and the evidence on which it is based.

The award should be signed and dated by the arbitrator, and the arbitrator’s name should be printed below their signature.

The arbitrator must give you and your ex-partner a copy of the arbitration award.

If you attended court ordered arbitration, the arbitrator must notify the court within seven days after they make an award. 

Registering your award

You can apply to register your arbitration award with the court so that it can be enforced like property orders. You can apply yourself (sole application), or by joint application with your ex-partner.

It is not mandatory to register your arbitration award. You don’t have to register your arbitration award if you and your ex-partner will comply with the award. However, registration is necessary if you want to enforce your award.

For more information, see Registering your property settlement arbitration award.

Appeal your award

In limited circumstances, you may be able to appeal your arbitration award.

There are limited grounds to appeal an arbitration award. These grounds include:

• a mistake or law or fact
• arbitrator misconduct
• a lack of procedural fairness
• lack of jurisdiction - the arbitrator making decisions that exceeded the scope of the arbitration agreement or their jurisdiction
• fraud, for example, if your ex-partner didn’t provide full financial disclosure.

You can’t appeal just because you don’t agree with the decision of the arbitrator.

Before you file your appeal, you should get legal advice.