This information was last updated: 8 December 2015
It is much less stressful and costly to reach an agreement as to finances with your former partner than to litigate. However, in some circumstances litigation may be necessary. In which case, a very precisely defined procedure must be followed to obtain a financial remedy upon divorce or dissolution of a civil partnership. The courts aim to encourage the parties to agree settlements and minimise costs, so it is open to you to stop the procedure and reach an agreement at any stage. If a settlement is reached, the terms of the agreement can be incorporated into a formal court order which gives your agreement legal status.
These are the main stages in obtaining a financial remedy through the courts:
- The Application
- First Court Hearing (known as the First Directions Appointment, or FDA)
- Second Court Hearing (known as the Financial Dispute Resolution Hearing, or FDR)
- Third Court Hearing (known as the Final Hearing)
Subject to a few exceptions, you must now attend an information meeting about family mediation and other forms of alternative dispute resolution, this is known as a MIAM (a Mediation Information and Assessment Meeting), before you can begin proceedings. You may settle at this point and no litigation will be necessary.
If you have not reached an agreement, either party can make an application for a financial remedy order. To start proceedings you will need to complete an application form, known as a Form A. You will then be the applicant in proceedings. This is a simple tick-box form and it is best to apply for all available types of financial order. You do not need to put forward any evidence to justify your case at this stage. Although in later stages each party is under a duty of full and frank disclosure of their assets and income position. This includes initial disclosure, as well as the duty to disclose material changes both in the present and any anticipated future changes. All court forms can be accessed online or you can ask for a copy from your local County Court. Guidance notes are also available online to assist you in completing some of the court forms. You need to send the court:
- Your fully and accurately completed application Form A
- The court fee
- A Form FM1 to confirm your attendance at a MIAM (see pre-application protocol)
Once the court has received these documents they will:
- Fix a date for the first hearing (the FDA)
- Send you notice of the first hearing and set a timetable for the exchanging of documents and information
- Send you a copy of the issued application form
Then you should send the respondent (i.e. the person you are claiming financial remedy from):
- The issued application form
- The notice of hearing
You should also send any other interested party (e.g. mortgage lender or pension provider) a copy of the issued application form.
Prior to the First Hearing, the FDA:
At least 35 days before the FDA:
- Financial statements containing full disclosure should be completed. These are known as a Form E, these must be simultaneously exchanged with the other party and sent to court.
At least 14 days before the FDA: These documents must be prepared and exchanged with the other party:
- Statement of issues (this details the points of dispute which the court will adjudicate on)
- Questionnaire (to request further information and documentation)
- Chronology (to highlight the key dates in the marriage/civil partnership and in the case)
- Notice of Response to First Hearing (this is simply a statement of whether the parties are in a position to proceed straight to an FDR appointment if they feel they have all the disclosure they need, it can allow for ‘fast-tracking’).
At least 24 hours before the FDA:
- Costs schedules breaking down any costs incurred so far should be sent to the court and to the other party, known as a Form H.
The FDA itself:
Both parties and their legal representation attend before a district judge. The FDA is an opportunity for fact gathering and for the judge to decide how the case can progress most cost effectively. The court gives directions as to the next steps in the case, this includes: Which questions in the questionnaires should be answered and by when they should be answered
- What, if any, expert evidence or valuations are necessary and by when they should be completed
- Any documents or other evidence which should be produced
The court will also confirm the date of the next hearing.
Prior to the Second Hearing, the FDR:
You must comply with any directions given by the court. At least 7 days before the FDR:
- The applicant must send all offers to settle by each party and any responses to the court.
At least 2 days before the FDR:
- The applicant must prepare and send an indexed bundle of key documents to the court and send a copy of the index to the respondent.
At least 24 hours before the FDR:
- A second costs schedule should be sent to the court and the other party.
The FDR itself:
The hearing should be treated as a meeting held for the purposes of discussion and negotiation. The judge’s role is as a mediator, they will give an indication of what their decision would be if it was a final hearing. It is expected that the parties will then negotiate matters themselves in the light of the judge’s indication. If a settlement is reached, the judge can make an order to reflect that, known as a consent order. Although, if no settlement is agreed they cannot impose an order at this stage and the case will proceed to Final Hearing, this date will be set at the FDR. It should be noted that the judge who makes the final decision at the Final Hearing is not the same judge as for the FDR, nor will that judge be aware of the FDR judge’s indications.
Prior to the Final Hearing:
You must comply with any further steps ordered by the court. At least 14 days before the Final Hearing:
- The applicant sends a Statement of Open Proposals to the respondent and the court. This sets out the order you are inviting the court to make.
At least 7 days before the Final Hearing:
- The respondent also sends a Statement of Open Proposals, detailing the orders they are seeking.
At least 2 days before the Final Hearing:
- The applicant must prepare and send an updated indexed bundle of key documents to the court, as well as an updated index to the other party
- A final costs schedule must be sent to the court and the other party.
The Final Hearing itself:
The court should have all the evidence it needs to make a decision, although oral evidence from the parties may be necessary. Each party will usually be examined and cross-examined and any expert witnesses will be called to give their evidence. This is usually held before a district judge, in private. They will make a final decision on the case and deliver their judgement.
After the Final Hearing:
Copies of the Court Order will be sent to both parties. The case is now concluded although it may remain for the parties to implement all or parts of the order. It is also worth noting that often financial orders do not come into effect until the divorce or civil partnership has been formally dissolved upon decree absolute or final order.
Can we help?
We are able to offer competitive rates, and in some circumstances, fixed fees to assist you in this type of case. Legal aid will only be available in rare circumstances and this type of work is now generally out of scope.
If you would like to arrange a consultation please telephone 0208 885 7986
The information provided in this How To: is general advice and information and Wilsons Solicitors LLP accepts no liability for its applicability to the facts of your individual circumstances.
© Copyright - We have no objection to you replicating this material provided that you attribute and acknowledge Wilson Solicitors LLP as the source.