Questionnaires in Financial Proceedings in Divorce or Civil Partnership Dissolution

July 19, 2016

I recently got asked about schedules of deficiencies and supplemental questionnaires by someone acting in person who had a long questionnaire to answer and was worried he had not asked enough questions himself.

I often see solicitors and barristers in financial cases drafting very extensive questionnaires including questions which are not necessary to decide the case. My view is that this is motivated by lawyers being over-cautious to protect themselves.

The questions should all be relevant to the issues, so it is best to look at and/or draft the Statement of Issues first. Questions could arise out of

  1. the Form E itself (when information is missing, such as a pension valuation) or
  2. arise later from a response to a question or from a reply to a question in the Form E, for example when a response to how much last year’s bonus was is that it came to (unexpectedly high) £50,000 and then the question arises what happened to the money.

The questions I come across can, perhaps, be put in 3 categories:

  1. Issues which the other person must know for their case, for example if the Form E simply says that someone has private pension, but no valuation is provided.
  2. Issues which the other person does not need to know but would like to know as it may help them to present the case, such as the income of the new partner when there is no suggestion that the new partner will pay maintenance or that the other person’s own income is insufficient to meet their own outgoings, or if the case is clearly not a maintenance case because both spouses have similar income. In this category are also questions which are there simply to retaliate, so it may be necessary to look at one party’s credit card statements to see how they have spent large amounts each month, while the other party’s spending is not in issue, but the question will find itself onto the other questionnaire, often as an addition on the day of the first directions appointment. These should not be allowed, but often unfortunately are.
  3. Issues which the questioner would rather remain obscured, such as if in the Form E someone says they owe £5,000 to their brother. In that case the other person may ask for proof to give the person alleging the debt the opportunity to provide that and if they do not, then they can ask the court to disregard the debt as at best a soft loan. They ask the question so that they can make the argument later on. This is legitimate.

Sometimes people ask questions which are:

  1. Issues for directions, such as the valuation of a property, for which the court usually directs that the parties either agree the value after getting estate agents appraisals or if they cannot agree, instruct an independent valuer.
  2. Issues for cross-examination, for example: “Why have you still not found a job when you had a year to find one?”

The court should disallow such questions, but often allows them. Nobody will get points at the final hearing for having asked more questions and the judge probably will not read the questions and answers, which are often then irrelevant or are at best difficult to follow. The judge would normally only look at a question and answer if an issue was not agreed.

If after the first appointment you think there are issues which you forgot to ask and could have asked, first check whether the court will need to know the answer to decide any of the issues, which the parties have identified in their statement of issues at the first appointment. If so, you should then consider if the answer is already there or if you can provide it in another way. For example, if a party claims that they cannot possibility find a suitable property in an area which is convenient for the children’s school for £100,000 less than the family home is now worth, you could do your own research and provide particulars of properties for the court. If you view them and see why they are suitable (and include perhaps a couple which are not), that shows you have researched this thoroughly. Rather than ambushing the other party at the final hearing, however, you should then send the particulars to them or their solicitor and ask them to agree that these properties are suitable and, if not, state why not and provide particulars of properties which are suitable.

If the issue is in category 3 above, that could also be addressed in correspondence with a clear warning that the letter will be referred to at the final hearing and that you will submit that the court should disregard the debt to the brother (or as the case may be) unless proof is provided of the terms etc.

You should only make an application to the court for permission to adduce further questions if you are confident that you can explain that they are absolutely vital. If that is the case, you should write to the other party’s solicitors first setting out the question or questions and why they are vital and ask for the question to be answered voluntarily. Set a deadline for them to confirm it will be answered (say 7 days) and for an answer (day 21 days) and state that you will be making an urgent application to the court if there is no positive response. You could then ask the court to consider the issue in writing and attach the correspondence.

Unfortunately each case is very different, so I cannot say what applies in any particular case without considering the documents and taking full instructions.

If you want to make an appointment, get in touch.