The Divorce Court Process for Financial Relief
The procedure is in Part 9 of the Family Procedure Rules 2010.
An application to the court cannot be made unless divorce proceedings have already been started.
Before any application can be made, you may be asked to attend a Mediation Information and Assessment Meeting ( known as a MIAM) unless there is one of the set reasons in your case to exempt you from this requirement.
The application to the Court for a financial order is in Form A and must be accompanied by a Family Mediation Information and Assessment Form and the Court fee.
The party who files the Form A is called the Applicant and the other the Respondent.
Once issued, the Court will set a timetable and will set the first Court hearing known as the First Directions Appointment (FDA). The FDA must take place between 12 and 16 weeks after the Form A is issued.
Financial Disclosure must be provided by both parties by completing a full disclosure statement known as Form E.
The form is about thirty pages long and requires disclosure of all of your assets and liabilities (including trust and pension assets) and the provision of up-to-date documentation supporting the figures given.
The Form E also asks you to describe your financial needs going forward.
Forms E must be exchanged not less than 35 days before the FDA.
You will then each have the opportunity to consider the others Form E and ask questions if things need clarified.
Exchange of First Directions Appointment documents
Not less than 14 days before the FDA the parties must serve on one another and file at Court:
- a request for information or documents to complete or clarify the evidence given in Form E;
- a chronology of the principal events in family life;
- a summary of the financial issues the Court is being asked to consider and resolve;
- a statement of the legal costs incurred to the FDA; and
- a document stating whether or not you will be in a position to use the FDA as a Financial Dispute Resolution Hearing.
The First Direction Appointment
Both parties and their lawyers must attend the FDA unless the Court has given permission otherwise.
The purpose of the FDA is to enable the Court:
- to identify the issues in the case;
- to identify what additional information, evidence and documents will be needed in light of those issues; and
- to identify what Court resources need to be allocated so that the issues can be resolved.
Common directions include:
- which requests for additional information and documents must be answered, and by when;
- the commissioning of valuations or experts’ reports in relation to, for example, the value of any properties the value of which is disputed; and
- the date on which the Financial Dispute Resolution Hearing will take place.
The Financial Dispute Resolution Appointment
This hearing usually takes place at least three months after the FDA.
The hope is to encourage the parties to agree an overall settlement or narrow the issues.
The Judge will be provided with a summary of the assets, details of the remaining disputed financial issues, and copies of any settlement proposals.
Each party is under an obligation to make a settlement proposal before the FDR.
Both parties are required to attend Court at least one hour before the FDR to enable negotiations to take place.
At the FDR, the Judge will hear about the issues in the case.
The Judge will usually provide an indication of what he thinks would be a fair financial settlement.
This Judge cannot impose a financial settlement but only indicate what he thinks it should be.
If a financial settlement is agreed at the FDR, the Judge can approve the settlement terms.
If a settlement is not agreed, the Judge will give directions to manage the case to the Final Hearing including:
- updating financial disclosure;
- preparation of narrative witness statements in relation to any facts that remain in significant dispute; and
- the date and length of the Final Hearing.
The Final Hearing will be 4 months after the FDR.
The Judge hearing the FDR is not allowed to have any further involvement with the case other than to conduct a further FDR, to approve settlement terms or to make case management directions.
Anything said at the FDR is usually inadmissible in any subsequent proceedings.
Preparation for the Final Hearing
At least 14 days before the Final Hearing, the Applicant must file with the Court and serve on the Respondent a statement setting out in detail the orders they will be asking the Court to make.
At least 7 days before the Final Hearing, the Respondent must do likewise. In this way the Court is aware from the outset of the areas of disagreement between the partners, and the distance between them on the suggested outcome.
The Final Hearing Itself
This is a formal hearing which both partners are required to attend.
They will usually be required to give oral evidence.
The Applicant will give evidence, on oath, first and then be asked questions by way of cross-examination on behalf of the Respondent.
The Judge also asks questions.
Then the Respondents will give evidence and be cross-examined.
Other witnesses might also give evidence if the Court has directed this is necessary eg an expert will give evidence, but more often experts’ evidence stands in the form of their written reports.
Once the evidence has been heard, first the Respondent’s then the Applicant’s legal representatives will conclude by summarising the evidence and the legal principles they say the Court ought to take into account when reaching its decision.
After hearing all the evidence and arguments about the law, the Judge will make his decision – usually immediately after hearing the evidence and legal arguments.
The Judge decides any relevant disputed facts and sets out the legal principles that apply.
The general rule in divorce cases is that the Court will not make an order requiring one party to pay the costs of the other.
But if one party has behaved in a way during the proceedings to justify a costs order eg ignoring court orders, running the case in an unreasonable or disproportionate way, or by destroying or dissipating assets, these are not common.