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How Arbitration can Change the Landscape of Family Law.
Paper Published in Standard Newspaper 6th July 2012

It is not in doubt that arbitration has had an enormous influence that extends the traditional commercialprovince. Indeed the area of sport, shippingindustry, andconstruction disputes is a case in point where arbitration has been embraced with pronounced successin solving disputes. However, one area of law has been largely unattended- family law.
What then is a family? The Wikipedia defines a family as In human context, a family (from Latin: familia) is a group of people affiliated by consanguinity, affinity, or co-residence. In other words it is the basic unit that makes up a society.
Upon, two free consenting adults of the opposite sex exercising their Constitutional Right to contract a marriage as enshrined in Article 45(2). The marital bliss may fade away and the said union of marriage may ultimately end up in The Children’s Court- for inter aliahearing and determination of custody of the child or children, child or children support, and other statutoryprovisions as enshrined in The Children Act, No. 8 of 2001Laws of Kenya. Further, the same irreparably broken down marriagemay find itself in the course list at The High Courtthe Family Division for hearing and determinationof interalia, divorce, separation, alimony, and other statutory and common lawprovisions.
Family law takes cognizance of several modes of marriages; these are Statutory Marriage as recognized by The Marriage Act Cap150 Laws of Kenya and is conducted at The District Registrar of Marriages. Christian Marriage as celebrated between professing Christians. Muslim marriage as celebrated between professing Muslims. “Cohabitation”as envisaged in Sec 3(5) of The Law of Succession Act (emphasizes on matters of succession and dependency). Hindu Marriage as celebrated between professing Hindus and African Customary Marriages as celebrated between Africans.
It is not in doubt that it is one thing to annul a marriage and another to distribute Matrimonial Property. Presently, a court of competent jurisdiction determines how the same will be distributed taking into account monetary or and companionship contribution just to mention a few.
There is need to re-engineer our statutes to cater for arbitration in answering Matrimonial Property questions. It is imperative to note that currently there is neither nothing on the statute books or in common law that specifically prevents its use, nor there isn’t specific provision recognizing it.
To date only three countries – Australia- 2001, Canada-1991, and Scotland (a hybrid common law and civil law jurisdiction) have statutory based family arbitration. (Scotland is a recent addition to its Arbitration Act.)
While mediation has been largely successful, there is a growing dissatisfaction that it is not suitable for those ‘hard to settle’ cases which require a directive and binging approach but which would be preferable to keep out of court. This is particularly the case for financial disputes, according to the research committee of the Center for Child and Family Law Reform – London. In these instances, parties have to resort to the less- than – ideal option of court, which is costly and protracted and therefore stressful for the families and the children involved.
Family arbitration as an option to solving family disputes involving money and property claims will if embraced bring on board speed, choice of arbitrator, confidentiality, low-cost, parties being able to choose their own timetable, location, manner of procedure, and less formal way as opposed to the open court litigation.
Mediationhas had its pitfalls; this is whereby a neutral third party upon request by the parties tries to conciliate the disputants. His primary aim is to get the parties ‘talking’ he has no powers or jurisdiction to make a binding decision. This is opposed to arbitration whereby the arbitrator wears the cap of a judge and upon hearing and determining the dispute he writes an award that is binding, conclusive and enforceable to the parties.
The Chartered Institute of Arbitrators can be in good stead to offer experienced family law arbitrators in such events when called upon. This is indeed an extension of the Institutes Royal Charter which is to “promote and facilitate worldwide the determination of disputes by arbitration and alternative dispute resolution other than resolution by the court.”
Such a scheme can cover, financial disputes arising from divorce, claims on inheritance from a child, spouse and so on; claims made in Kenya after a divorce that has taken place abroad; claims for child maintenance between unmarred parents; disputes about ownership of a property between cohabiting couples, and civil partnership financial claims.
The scheme won’t cover disputes directly concerning: the liberty of individuals; the status of the individual of their relationship; the care of parenting of children or bankruptcy or insolvency.
What will happen if a party is unhappy with the arbitrators award can he appeal to the court? This is catered for in Matrimonial Causes Act 1973 Section 33 which provides that any agreements made between parties in arbitration, mediation or whatever, can be approved by the Family Division of The High Court. This can only be lifted if it is proved that there was improper provision of the children or therewas bias or bullying in the process.
To the consumers of family law this is going and has huge potential; it is really very important because it is so innovative. The Legislature should enact such a legislation in furtherance of Article 45 (3), 45 4(a), (b) and Article 68 (c) (iii) of our Kenya Constitution.

By Peter Njagi; MCIArb,
Submitted on 6th July 2012