ARBITRATION TYPES SERIES – 8 / FAMILY ARBITRATION

Family has an important place in the Turkish Legal System and all other legal systems. However, the concept of family is as important as the disputes arising in family law can be that exhausting.

Although voluntary conciliation methods are widely preferred for the resolution of disputes arising in family law, especially in world practices, the rules regarding special regulations such as alimony, which is a branch of family law, are not suitable for the conciliation method in some countries.

“Family arbitration” (arbitration in family law) is an alternative dispute resolution method that allows disputes within the scope of family law to be resolved without going to court, through one or more arbitrators (arbitration boards) determined by the parties themselves or appointed by an institution.

However, since family law disputes are generally considered to be related to public order in Turkey, they are not suitable for arbitration. Therefore, in the Turkish legal system, family arbitration can currently be brought to the agenda in limited areas or in some special cases, but it is mandatory to apply to the court for issues such as marriage, divorce, custody, alimony.

For example, since family law disputes in Turkey are generally considered to be related to public order, they are not suitable for arbitration. Therefore, in the Turkish legal system, family arbitration can currently be brought to the agenda in limited areas or in some special cases, but it is mandatory to apply to the court for issues such as marriage, divorce, custody, alimony.

However, the discussions on this issue are increasing and it is thought that it will be one of the areas that can be implemented in the future.

However; allowing the choice of law in family law relations has become a more accepted approach in most European Union regulations in the modern world we live in. In European Union Law, the parties are given the right to choose the law to be applied in inheritance and divorce cases as well as alimony.

When we look at world examples regarding family arbitration, which is developing and becoming preferred day by day;

England

• The family arbitration system is quite developed.
• Issues such as property sharing after divorce, alimony, education and care of children can be resolved through arbitration.
• The UK Family Arbitration Association (IFLA) regulates the arbitration process.
• The parties accept the arbitrator’s decision as binding as a court; the decisions gain legal validity.
• The process is confidential and less tiring.

Canada

• Family arbitration is especially common in states such as Ontario.
• Parties can apply to arbitration with a written agreement.
• The arbitrator’s decision can often be enforced like a court decision.
• Although arbitration can be conducted for child-related issues, the court can intervene if the decision is against the child’s best interests.

USA

• It varies by state, but family arbitration can be implemented in many states.
• There is a developed infrastructure, especially in states such as New York, California and Florida.
• If an arbitration agreement is made, the parties can find solutions to issues such as property sharing and alimony after divorce without going to court.
• However, issues such as child custody are usually under court supervision.

Australia

• Family Dispute Resolution (FDR) is common in family law.
• State-sponsored mediation systems also exist.
• If agreement is still not reached after the mandatory FDR process, the courts intervene.
• Arbitration is generally applied to issues other than children.

Germany and France

• Arbitration is applied more limitedly in continental Europe.
• Direct arbitration is not very common because family law is considered to be a matter of public order.
• However, issues such as property division and contracts between spouses can be resolved by private arbitrators

Egypt

• Application: Family arbitration is used under both state and Islamic law.
• Scope: Property division, pre-divorce disputes, alimony.
• Structure: Family Dispute Resolution Offices provide arbitration and mediation services. 

Malaysia

• Application: Sharia and civil law are applied together.
• Scope: Religious arbitration is possible for Muslim couples. Courts can approve these decisions.
• Feature: The judge/arbitrator system (ḥakamayn) can be used.

The reasons why family arbitration is preferred include being faster and less costly than court processes, more confidential and private for the parties, more suitable for cultural/religious sensitivities, and more solution-oriented results with expert and experienced arbitrators.

Practices in all countries of the world show that family arbitration is developing and will take its place as a preferable type of arbitration in the future.

Sources

FAQs | IFLA

Family Arbitrator | Family arbitration services and resources : FamilyArbitrator

Family arbitration among Syrians in Türkiye

Family Arbitration; what is it and why should divorcing couples know about it?

Arbitrating Family Law Disputes | Family Dispute Resolution: Process and Practice | Oxford Academic

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