Orders for financial provision can be made following divorce, including the payment of maintenance, lump sums, orders for property transfer and the sharing of pensions.
At the beginning of the divorce process, guidelines outlined by the UK government provide for mutual disclosure of financial information to enable negotiation in the hope that a settlement can be achieved amicably. Ideally this will be provided voluntarily, possibly between solicitors/direct access barristers, between the parties directly or through mediation. If voluntary disclosure is not forthcoming, then an application to the court should be made.
To initiate an application for financial provision, one party will file a Form A at court with the court fee, currently £255. The person that does so is the applicant. That form states the claims that are being made (for example Maintenance, Lump Sum, Property Adjustment or Pension Sharing Orders).
Making a financial application
Since 2014 it has been mandatory for parties to consider mediation before an application can be made to the court. The applicant (and the respondent) will need to attend a Mediation Information and Assessment Meeting (MIAM) to establish whether it might be possible to resolve any disputes through mediation, rather than through the court process. There are reasons why a case may not be suitable for mediation, e.g. domestic violence and if the assessor determines the case is not suitable, the Form A confirms this to the court. A MIAM may also not be needed if the parties have tried mediation before or either person lives abroad.
When the Form A is issued, the court will issue a Notice of first appointment setting a date for the first court hearing (called the first appointment). This will usually be 12-16 weeks after the Form A has been filed. The court will serve a copy on the other party, who becomes the respondent to the application.
The court will also produce a timeline setting out the documents both parties must provide in advance. At least 35 days before the first appointment, both parties must exchange and file at court their Form E. This document is signed by each party and sets out full details of their financial position. Certain documents are required by the court to support the Form E which include:
- Any property valuation obtained in the previous six months
- The most recent mortgage statement(s)
- 12 months statements for all bank, building society and other bank accounts
- Surrender value/quotations for all life insurance policies
- The latest P60 and the last three payslips
- The last two years accounts of any company which a party has an interest in and any valuation of the company relied upon
- The last two years accounts for self-employed businesses or partnerships
- The latest cash equivalent value for any pension scheme or letter of request asking for that valuation
Once the parties have exchanged their financial information it may be possible to start negotiations. However, disclosure is not always complete or clear. Consequently at least 14 days before a first appointment, both parties must file at court and serve on each other the following documents:
- A questionnaire setting out any further information or documents requested from the other party. The questions asked must be relevant to the issues before the court.
- A brief Statement of Issues between the parties setting out the main points of dispute.
- A chronology setting out the history of the marriage and/or relationship.
- A Form G stating whether or not the party will be in a position to negotiate at the First Appointment or whether further information is required before that is a possibility.
Both parties must be present at all hearings unless the court has excused their attendance. At each hearing, legal representatives for each party must submit an estimate of their total costs to date. This is to ensure that both parties know what their costs are, what their spouse’s costs are and what effect these will have on any overall settlement.
Divorce – the first appointment
The first appointment is the first court hearing before a judge, or magistrates. The purpose of the first appointment is for the court to give directions (instructions) for anything that might need to be done by way of the provision of further information, and to timetable these directions so that the parties are enabled to negotiate at or before the second hearing.
If there is a disagreement about what further information is required, the court will decide which questions should be answered and what further documentation is required.
The court may also direct the parties to obtain a formal valuation of any properties or to instruct an accountant to prepare a report to value a family business or calculate tax that may be payable. Such instructions are usually on a joint basis so as to save costs for the parties.
Lastly the court will direct that the case be listed for a financial dispute resolution appointment (an FDR). This hearing will usually be a few months after the first appointment.
The financial dispute resolution appointment
The FDR is usually heard by a District Judge, the purpose of which is to assist both parties in reaching a settlement. The FDR hearing is without prejudice (confidential) and the District Judge who presides at the FDR will not be able to take any further part in the proceedings.
Seven days before the FDR the Applicant must submit to the court details of any offers made between the parties, including those that are “without prejudice”, so that the District Judge has full knowledge of the proposals made by each party. The District Judge will also have details of the financial situation of the parties and the issues in dispute between them. The “without prejudice” offer letters will not be kept on the court file after the FDR hearing.
Parties and their advisors are directed to attend court at least one hour before the FDR hearing for the purposes of negotiation. It is important that the parties make every effort to agree on the issues between them. The District Judge will hear from both parties’ lawyers and will usually express a view on the possible outcome of the case. In addition the District Judge is likely to warn both parties of the litigation risk and the considerable expense of continuing litigation. If the District Judge cannot help the parties find common ground, further directions will be given to prepare the case for a final hearing.
The final divorce hearing
If a case does not settle at the FDR or in the following months, it will proceed to a final hearing. The length of the hearing will be determined by its complexity, witnesses required and the extent of relevant documentation. Generally the longer the hearing needed, the longer it will be before the final hearing is listed. Final hearings listed for one day will be heard more quickly than final hearings listed for five days.
At a final hearing, the court will hear evidence and see all relevant documents. The parties will both be represented by a barrister. At the conclusion, judgment will be given imposing a final decision about the division of assets on both parties by way of an order. Having done so, the question of costs will need to be determined. The usual order will be that each party will bear their own costs, although the court does have the power to order a party to pay some or all of the other party’s costs. This will usually only occur where one party has behaved poorly in their conduct within the proceedings.
Generally, it will take around 9-12 months from issuing a financial application to resolution. However, this timescale can be longer if a final hearing is required.
If you have any questions call 07354710349 during office hours or email s.shepherd@mydivorcebarristers.co.uk