Charlotte Hurst, solicitor in Harrison Drury’s family law team, outlines the various stages in order to achieve a financial settlement in divorce.
It is a common misconception that finances are resolved automatically as part of divorce proceedings. The reality is the divorce proceedings are the more straightforward part. The financial remedy proceedings, which run parallel to the divorce, have in contrast, the potential to become more difficult to resolve.
If both spouses can agree a financial settlement out of court it will save a lot of time, money and not to mention, stress. If they are not able to resolve financial matters out of court, then one spouse will need to initiate financial remedy proceedings.
Issuing a Decree Nisi
Before the court will consider an application for financial remedy, the decree nisi must have been pronounced. This occurs once the divorce petition has been issued, the respondent has acknowledged service of the petition, and the courts have informed you that you are entitled to a divorce.
Mediation Information Assessment Meeting (MIAM)
When applying to the courts for financial remedy, the courts will want to see evidence that the applicant has attended a MIAM to determine whether mediation is a more appropriate route.
If mediation is unsuitable then the relevant forms can be submitted to the courts.
Submitting Form A and receiving Notice of First Appointment
To initiate court proceedings, one spouse will need to complete a Form A and submit this to the courts together with a court fee. Each party will then receive a Notice of First Appointment that contains certain actions and deadlines for serving documents on the other party.
Preparing and exchanging Form E
One of the abovementioned actions will be to complete a Form E. This is a financial statement that must be completed by both parties detailing property, savings, liabilities, earnings and any other assets. It will need to include various documents as evidence of each party’s financial position such as bank statements, property valuations and wage slips.
These are then ‘exchanged’ with both parties swapping information simultaneously.
Each party can then raise questions of the other party’s financial disclosure by way of a questionnaire and must lodge these documents by the dates directed by the Notice of First Appointment.
Attending the First Direction Appointment (FDA)
This is the first of three court hearings. This hearing may likely be somewhat underwhelming as the main aim is for the parties to agree which questions contained in the disclosure questionnaire will be answered and agree a deadline. It will also determine if any further documentation is required such as actuarial pension reports, share valuations and medical reports.
If the parties are satisfied that disclosure is complete, then this first appointment can also be used as the Financial Dispute Resolution (FDR) hearing, which will save time and money.
If the parties are unable to agree, and further information is required, the judge will set further directions and list the matter for an additional hearing known as the official FDR.
Financial Dispute Resolution (FDR) – the final chance to reach an agreement
Prior to the FDR, each party needs to make an open offer so the judge can ascertain their positions. The FDR is the second of three hearings and where most cases through mutual agreement, reach a settlement.
This is due to the judge taking more of an active role in the case and providing an indication as to how matters may conclude should they be decided at a final hearing. The judge will also remind parties of the associated costs for taking the matter to the final hearing.
This usually encourages parties to participate in productive negotiations in a bid to reach a fair settlement and maintain a certain level of autonomy. If the parties are unable to reach an agreement, a new judge will be allocated to the case for the purpose of a final hearing.
Final Hearing – the judge makes the final decision
This is the last stage of the financial remedy proceeding. A date for a final hearing will be received and the ‘day in court’ has arrived – but what does this actually involve?
The final stage is essentially a trial. The judge will listen to all the evidence and take the decision out of the parties’ hands. Each party will be required to give evidence and the other party’s legal representative will have the opportunity to cross-examine by asking questions.
At the final hearing the judge has the power to force a transfer or sale of a property, order the payment of a lump sum and/or spousal maintenance and even the sharing of pensions.
By progressing to final hearing, both parties run the risk of receiving an unfavourable result.