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  • Tracey O' Dwyer

What happens in the financial remedies courts?

I'd like to be clear: of all the ways to try to come to a financial settlement, court is likely to be the most unattractive, costly and stressful of all the options, and the one to avoid where at all possible. I would always suggest being wary of any family lawyer who is encouraging you to go to court without good reason.

Better options include mediation, a voluntary process through solicitors, arbitration, and various other options of "non court-based dispute resolution" ("NCDR"). HOWEVER, sometimes, you are left with no option but to make a court application for the court to help with, or ultimately decide, your financial settlement from your divorce.

Reasons why a court application might be needed, include: the other party has refused all suggestions of NCDR; the other party is not engaging with moving matters forward in any reasonable way; the other party is refusing to give disclosure of their financial circumstances; you have been left with insufficient money to meet your needs; or the other party's expectations of settlement are completely unreasonable. These are not exhaustive.

So what happens next, when you have reached the decision that a court application is necessary? This blog is a quick guide to the main steps in the court process.

  • The first step, unless you are exempt, is to attend a Mediation Information & Assessment Meeting ("a MIAM"). This is a meeting so that a mediator can tell you how mediation works and how it might be able to help you. You can either try to progress mediation if suitable, or the mediator will give you a signed page to show you attended this so that you can apply to court.

  • You or your solicitor can then complete a Form A, application for financial remedies and submit this to court.

  • The court will list a date, which in theory should be 12-16 weeks ahead (but could be longer), for a First Directions Appointment. Leading up that date, will be a list of standard directions, which include the following:

    • Exchange of Forms E. This is a detailed financial statement that requires various supporting documentation to be provided. You can find a Form E here.:

    • Questionnaires. After Form E you are each entitled to raise questionnaires about the other's Form E and documents.

    • If possible, jointly obtained market valuations of property, but if not sole ones.

    • Indications of mortgage borrowing capacity.

    • Completion of various court required forms, such as ES1 (a case summary), ES2 (a schedule of assets), Form H (schedule of legal costs) and preparation of court bundles (a PDF bundle of all documents the court will need for the hearing).

  • The day of the First Appointment. Essentially this is a housekeeping type of appointment, where a Judge assists with ordering directions to move the case forward to the next stage. Sometimes it is possible to agree what these directions will be with the other party, and avoid attending. The sort of directions that might be ordered include: that you both reply to each other's questionnaires; pension expert reports; formal property valuations; tax calculations; business valuations; and so on.

  • After the hearing an order will be sent out listing what needs to be done, and also giving a date for the next stage which is a Financial Dispute Resolution ("FDR") hearing. In advance of the FDR you will need to comply with all the directions ordered, as well as provide updating evidence of your financial disclosure, as this FDR hearing will likely be several months after the First Appointment. In advance of the FDR hearing, you should make proposals to settle, often on what is called a "without prejudice"" basis which means they cannot be referred to in court except at the FDR. Again, court bundles, ES1 and ES2 need to be completed.

  • The Financial Dispute Resolution hearing. By the time you reach this hearing, in theory enough information should be known, so that the case might settle. Hopefully both parties have made proposals as above, and you will know how far apart you are. You both get the opportunity to put your case to the Judge in a hearing usually listed for one hour, who will then give an "indication" of what his or her view is on the appropriate settlement. There is a wide discretion given to judges in financial remedies, so what this Judge says, will not necessarily be the same as the outcome. It is intended to try to focus minds, and encourage negotiations.

  • That same judge cannot, after the FDR, have any further involvement in your case, and cannot be the Judge at the final hearing because they have already given their view. It is important to note that sometimes the eventual outcome can be quite different to what the FDR judge has indicated - the FDR judge only get a snapshot of your case from short submissions, whereas the final outcome will be determined after a fuller consideration of all the evidence and the case.

  • If the case does not settle at the FDR, you will be given directions for final hearing. Those will include for updating documentation of your financial circumstances, and also for section 25 statements which are statements to fully set out your case, paying specific attention to what is called the section 25 criteria as laid out in the Matrimonial Causes Act 1973 which you can find here. These are the criteria that the court takes into account to determine a fair outcome, with criteria in different cases carrying varying degrees of weight. In advance of a final hearing, you must put forward what are called "open" proposals, so not "without prejudice". This is so that everyone can openly see your position on settlement. As before, there is various documentation needed by the court, including a bundle, schedule of assets and costs forms.

  • The final hearing. Depending on the issues in the case, this might be one day, or it might be two, three, four, five or even more days if matters are complex. This is your day (or more) in court. There will be opening submissions, the giving of evidence, often cross-examination, and closing submissions. After this the Judge will give their judgment. they might do this the same day, or another day afterwards. You will then have your final order.

The vast majority of cases will settle at some stage along the way, before you get to the final hearing. Some cases settle before the first hearing is even reached. It can help to shift an unreasonable party's focus when faced with the unattractive and costly option of court, but of course this is not guaranteed. One certainty is that at the end, you will have a final decision. Options of non court-based dispute resolution are always more attractive but it does take two to properly agree to and engage in those, so court is there if not.

If you are represented by a solicitor or other lawyer, you will most likely have a barrister to represent you at the various stages. Sometimes cases do not follow the standard path, and there might be more or less hearings. The above is a very simplified brief account of some main steps.

If you require further information, please get in touch here.


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