Finances on Divorce -
The Court Process
What if we can’t agree a financial settlement?
If you cannot reach a financial settlement between you, at mediation or via solicitors it will probably become necessary for one of you to issue financial remedy proceedings.
It is open to either party to issue financial remedy proceedings. The application is made to the court on a short form accompanied by a court fee of £255.
The court process is the same in every case regardless of the value of your assets although additional steps, such a joint valuations of property, businesses and/or pensions may be necessary in some more complex cases if the value of those assets cannot be agreed.
Issuing court proceedings will inevitably increase legal costs on both sides. Every effort should therefore be made to agree a financial settlement without the need for court proceedings.
The majority of cases settle without having to resort to the Court process. At Linnitts we specialise in financial settlements on divorce. We pride ourselves in dealing with financial matters at an early stage in the divorce proceedings so that your divorce is not delayed by a financial dispute.
If court proceedings are issued in your case we will prepare all the necessary documentation and you will be fully advised at every stage. In the unlikely event that your case reaches a final hearing you should budget around £3,000 to £5,000 to cover the costs involved. Unless a settlement is agreed beforehand you and the other party will have to attend court on two or three occasions. You should appoint a solicitor and possibly a barrister to handle the case for you.
How long does the financial remedy court process take?
Generally speaking there are 6 main steps in financial remedy proceedings:
- Exchange of Financial Statements (known as Form E);
- Exchange Questionnaires, Chronologies and Statement of Issues;
- First Directions Appointment (FDA) – a hearing when the Judge orders the filing of further documents, e.g. joint valuation reports if appropriate;
- Exchange of Replies to Questionnaires;
Financial Dispute Resolution (FDR) - a without prejudice hearing when the parties and their legal representatives discuss possible settlements in the presence of a Judge (this Judge cannot then be involved in the final hearing);
The Final Hearing - when the Judge makes a final Financial Order.
It is not unusual for this process to take 12-18 months and attempts should be made at every stage in the proceedings to reach a settlement to avoid the Judge making a final decision neither of you may be happy with.
Stage 1 – Filing documents at Court
When the Court receives an application form from either party to issue financial remedy proceedings a timetable set by the Court will be sent to both parties. This Notice of Proceedings will specify when court documents must be filed and exchanged. It will also specify a date for the First Directions Appointment.
The first and most important document to be prepared is the Financial Statement (Form E). This is a lengthy statement detailing income, assets, liabilities and pensions.
Each party has the opportunity to raise queries concerning the other party’s Financial Statement in a Questionnaire, for example, if they consider the other party has failed to disclose income or assets. If there is a dispute about whether these questions should be answered the Judge can make a direction on this issue at the First Directions Appointment.
Stage 2 - The First Directions Appointment (first court hearing)
The Judge cannot impose a financial settlement at this stage. The purpose of this hearing is to establish whether any further documents should be filed, for example, Replies to Questionnaires and/or joint valuation reports.
Unless you have chosen to represent yourself you will not be required to say anything in Court at this stage. The hearing is short – usually just 10 minutes. The Judge will then issue Directions, which tells the parties what they must do next and by what dates.
It is often possible to agree directions with the other party in advance of the First Directions Appointment. In these circumstances, subject to the Court’s approval, this hearing may be dealt with in the absence of the parties and their respective legal representatives. This can save significant legal costs..
The FDR Hearing
The FDR hearing takes place approximately 8 weeks after the FDA. The purpose of this hearing is to encourage settlement without the need for a final hearing. Without prejudice negotiations take place in the presence of the Judge. The hearing is informal although both parties must attend. The hearing will last for approximately 1 hour and the Court is likely to direct that both parties attend court 1 hour before the hearing for negotiation purposes. It is likely that both parties will instruct a Barrister to represent them at this hearing.
Again, you will not be required to give evidence at this hearing. The judge will hear legal submissions from both party’s legal representatives. Where possible, the judge will then give an indication of the type of order the court is likely to make if the matter proceeds to a final hearing. The parties and their legal representatives will then be sent out of the courtroom to try and negotiate a settlement.
If a settlement can be agreed the legal representatives will inform the Judge. Provided the Judge approves the settlement terms the Court will then make a Consent Order. This is a legally binding and enforceable Court Order.
If no agreement can be reached at the FDR hearing, the judge will order that the case must be listed for a full final hearing. As the Judge will have heard without prejudice negotiations he or she will not be able to hear the Final Hearing.
The Final Hearing
The Final Hearing is effectively a trial where detailed evidence is heard from both parties. Legal representations are made on both sides and a final decision is made by the Judge. It is not unusual for a Final Hearing to last a whole day – possibly more in complex cases.
As the costs involved can be substantial and the risk of the Judge making an Order neither party will be happy with is high the vast majority of cases settle before the Final Hearing.
To book an appointment call us on 01626 33 33 80 or complete our Request a Call Back form and we will call you back, at a time to suit you, free of charge.