April 27, 2018
Divorce: Basic steps to getting financial orders
Divorce cases can be extremely complex and emotionally draining. It can be possible to come to an early agreement through mediation or negotiation, but even the most amicable divorce can lead to disputes around finances.
If on divorce the parties cannot agree to share the assets and property from the marriage than one of them will have to apply to the court for financial orders.
The orders that can be applied for are:
- an order for maintenance pending the outcome of proceedings
- a lump sum order
- a secured provision order
- a property adjustment order
- a periodical payments order
- a pension sharing order
- a pension attachment order
- a pension compensation sharing order
- a pension compensation attachment order
The application for financial orders is submitted on a Form A which is available to download or from your local family court office. A fee for submitting the Form A is charged which is currently £255.
Once the application has been processed the court will issue directions for a First Directions Appointment. This sets out the preliminary steps to be taken and a fixed court appointment before a Judge.
This process and the further steps set out below are similar in all cases regardless of the nature and extent of issues, or the value of your assets.
The main procedural steps are:
Full and frank financial disclosure
This is carried out by a series of detailed statements made on a standard form called a Form E, which can also be downloaded or otherwise obtained from the court office. Each party completes one of these forms and exchanges it with the other party. It covers property, bank accounts, pensions, income etc, all supported by documentary proof. Once each party has exchanged their Form E the other party can request further information in the form of a Questionnaire. The judge will consider the questionnaires at the first appointment and direct which questions need to be answered to ensure that the issues are relevant and proportionate to the costs.
First Directions Appointment (FDA).
This is an evidence gathering hearing. If the parties cannot agree the value of assets then the court will consider whether the parties need to instruct an expert to value property, such as a chartered surveyor. If there is a family business or tax issues then an accountant may have to be instructed. The court will also consider whether more information is required on pension assets, if they are available. As stated above the court will also consider the Questionnaires. The purpose of all this is to ensure, as far as possible, that the court and parties have all the evidence for the Financial Dispute Resolution hearing so that agreement can be reached.
The financial dispute resolution (FDR) hearing.
The purpose of the FDR is to encourage settlement without the need for a final hearing in which the judge will decide the issues on contested evidence. The advantage is that settlement will cost the parties less. The FDR is an opportunity for the parties and their lawyers to negotiate at court and to benefit from the input of the judge. The judge will have seen all the papers, including offers and counter offers exchanged. The hearing will last for approximately one hour. Parties will need to attend court an hour beforehand to facilitate discussions and negotiations. They don’t need to give evidence at this hearing. The judge will listen to legal submissions from both parties. The judge will then give guidance on any matters in dispute and will assist the parties by giving an indication as to the likely order the judge would make if determining the case. Importantly, the judge at the FDR will not be able to conduct the final hearing. This is to encourage open negotiations at the FDR and for the judge to give a view.
The final hearing
The final hearing is the last resort and can be very costly for parties. Both parties will most likely have a barrister to represent them at final hearing, which involves preparation of a trial bundle submitted to court in advance and preparation of legal skeleton arguments. Both parties will be required to give evidence under oath and face questions from the other party’s legal representative. The final decision will be made by the judge with reasons given in a judgment.
How do I instruct a divorce barrister?
Our Public Access Barristers have a wide range of experience of divorce law. They can advise you on all aspects of your case and represent you in Court if necessary.
To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the family barrister best able to accommodate your needs.
By Nigel Taylor | Divorce and Finance
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