S v S

S v. S

Smart Summary (Beta)

Factual and Procedural Background

An application was transferred from the Guildford County Court for approval of a consent order intended to give effect to an arbitral award made by an arbitrator under the IFLA Scheme. The parties, married in 1986 and separated in 2012, had agreed to arbitration for their ancillary relief claims in June 2013 by signing the required form under the IFLA Rules. The arbitrator issued a final award in November 2013, and the parties sought court approval of a consent order reflecting that award in December 2013. The matrimonial assets were valued between £1.5 million and £2 million. The court was asked to approve the consent order based on the arbitral award.

Legal Issues Presented

What is the proper approach for the court when considering applications for approval of consent orders based on arbitral awards under the IFLA Scheme?
How should the court respond if a party seeks to resile from an arbitral award made under the IFLA Scheme?
What procedural adaptations are appropriate to facilitate the court's handling of such arbitration-related applications?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
X v X (Y and Z Intervening) [2002] 1 FLR 508	Recognition of policy favouring court enforcement of parties' financial agreements post-divorce	Established that courts uphold agreements unless contrary to public policy or vitiating factors exist
Dean v Dean [1978] Fam 161	Use of abbreviated 'notice to show cause' procedure when parties seek to resile from agreements	Sanctioned abbreviated procedures for disputes over agreements in ancillary relief
Edgar v Edgar [1980] 1 WLR 1410	Standard for upholding formal agreements unless injustice would result	Adopted as preferred test for upholding parties' agreements
Camm v Camm (1983) 4 FLR 577	Part of line of authorities supporting enforcement of parties' agreements	Supports policy favouring finality of agreements
Xydhias v Xydhias [1999] 1 FLR 683	Discretion in abbreviated procedures and robust case management when parties resile	Described court's discretion to limit issues and focus on core disputes
White v White [1999] Fam 304 (affirmed [2001] 1 AC 596)	Concept of 'magnetic factor' influencing outcome and principle of fairness without discrimination	Referenced to support approach to arbitral awards as determinative magnetic factors
Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467	Magnetic factor concept; respect for party autonomy in financial arrangements	Used to analogize arbitral awards as autonomous party decisions deserving respect
Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534	Respect for nuptial agreements freely entered into unless unfair in prevailing circumstances	Key authority endorsing party autonomy and giving effect to agreements/arbitral awards
Al Khatib v Masry [2004] EWCA Civ 1353, [2005] 1 FLR 381	Encouragement of mediation and alternative dispute resolution	Contextual background for the acceptance of arbitration in family law
S v P (Settlement by Collaborative Law Process) [2008] 2 FLR 2040	Streamlined court process for approving consent orders from collaborative law	Endorsed as a model for streamlined approval of consent orders from arbitral awards
S v S (Ancillary Relief) [2008] EWHC 2038, [2009] 1 FLR 254	Robust case management and abbreviated hearings when disputes arise	Supports court's approach to challenges to arbitral awards
MacLeod v MacLeod [2008] UKPC 64, [2010] 1 AC 298	Emphasis on individual autonomy in financial agreements	Supports principle of respecting parties' decisions as in arbitral awards
V v V (Prenuptial Agreement) [2011] EWHC 3230, [2012] 1 FLR 1315	Recognition of autonomy altering what constitutes a fair financial outcome	Reinforces weight given to party autonomy in financial arrangements
L v L [2006] EWHC 956 (Fam), [2008] 1 FLR 26	Judge’s role in consent orders; limits on investigation and rubber stamping	Guides judicial approach to approval of consent orders based on arbitration

Court's Reasoning and Analysis

The court began by recognising the strong policy favouring enforcement of parties' agreements in family financial matters, particularly those arrived at with legal advice and fairness. The IFLA Scheme arbitration award, to which both parties had agreed to be bound, was treated as a determinative 'magnetic factor' akin to a nuptial agreement, commanding respect and deference from the court. The court emphasised that its role in approving a consent order based on such an award is not to re-examine the merits but to ensure the award is lawful, fair, and workable, intervening only if the arbitral process was fundamentally flawed.

The court noted the streamlined process for approval of consent orders arising from such arbitration, analogous to that used in collaborative law settlements, and endorsed its use going forward. Procedurally, the court requires parties to lodge the arbitration agreement and award with the court and include appropriate recitals in the consent order.

Where a party seeks to resile from the award, the court will apply a robust approach, generally limiting hearings to abbreviated procedures focused on whether the grounds for challenge under the Arbitration Act 1996 are met. The court stressed that such challenges will rarely be permitted beyond a short, focused hearing.

Finally, the court acknowledged the need for procedural adaptations in family law to accommodate arbitration-related applications efficiently, including stays of proceedings and enforcement of arbitral orders, recommending urgent consideration by the Family Procedure Rules Committee.

Holding and Implications

The court approved the consent order reflecting the arbitral award under the IFLA Scheme.

The decision confirms that where parties have agreed to be bound by an arbitral award under a recognized scheme conducted in accordance with English law, the court will generally approve consent orders giving effect to that award, absent compelling reasons to the contrary. The ruling underscores the primacy of party autonomy in family financial disputes resolved through arbitration and supports streamlined court procedures to facilitate such approvals. No new legal precedent was established; rather, the decision applies and reinforces existing principles and procedural practices.

Click here to read the full judgment

Contains public sector information licensed under the Open Justice Licence v1.0.