Court Procedure on Finances
Questionnaires and how they are often abused are the topic of this blog post, where you can also find some practical tips.
Although there are boxes to tick at the bottom of a petition (application) for divorce or same-sex civil partnership dissolution to make claims for financial provision and although they are customarily almost always ticked, this does not actually start any financial proceedings.
To start financial proceedings after a divorce or civil partnership dissolution in England and Wales, the applicant needs to complete Form A, pay the court fee of £255 and send this to the court. When the court issues the form, it will start the process, which is managed by the court. Either party can start financial proceedings, either on the day the divorce or civil partnership dissolution is started or at any time afterwards, but not once that person has married or formed a civil partnership with someone else, unless they already made the claims on the divorce or dissolution petition, unless the claims have been made at the bottom of the divorce petition or in a respondent’s “answer”.
When the court issues the Form A application for financial provision, it will list a short court hearing, the first directions appointment, between 12 and 16 weeks later. It will also send a copy of the application and the notice of the first appointment giving the dates for the other directions to each party.
The other directions to prepare for the first appointment are:
- At least 35 days (5 weeks) before the first appointment both parties must have completed their financial disclosure by way of Form E, exchange it and send the original to the court. The Form E must have the required copy documents attached to it. This means as soon as you know about the date of the first appointment, you must start getting your financial disclosure together, if you have not started it before then.
- At least 14 days before the first appointment each party must send the following documents to the other one and to the court:
- a concise statement of the issues in dispute,
- a chronology,
- a questionnaire setting out what further information and documents they need from the other one to complete the disclosure to be able to negotiate a settlement and
- a notice stating whether they will be able to treat the first appointment as an FDR appointment (see below).
Unless you have permission from the court not to come to the first appointment (e.g. because you live abroad), you and your lawyer have to come to court for that hearing. The case is rarely allocated to one particular judge. The judge will then look at the documents and give directions about
- which questions from the other’s questionnaire need to be answered (often within 28 days),
- any other issues, such as valuations of properties, and
- give a date for a financial dispute resolution (“FDR”) appointment, often 3-4 months later.
FDR – Financial Dispute Resolution Hearing
Both of you and your lawyers have to come to court for the FDR appointment. The judge hearing the FDR is not allowed to hear the final hearing because they will see all the proposals either of you has made including any proposals made “without prejudice”, that is to say without the judge being able to see them at the final hearing. The aim is that both sides can talk freely at the FDR to encourage settlement. Neither party can refer to what is said during the hearing later on in open court.
The judge may often give an indication of what they think a judge at the final hearing would say. This would be based on the English court’s approach to financial issues as set out in the law. However, judges at the FDR, which is mostly only listed for half an hour, do not hear the evidence and anything they say is very much a rough-and-ready approach and may be wrong. Nevertheless, a lot of cases settle at this stage or shortly afterwards. A lot of judges will hear the lawyers and then send the parties out to negotiate outside the room and come back to report to the judge after they have dealt with some other cases. This means that both parties and their lawyers could be at court all day.
If there is no settlement, the judge will list a final hearing. This can be 6-12 months ahead or later, depending on the availability of judges.
All in all, financial proceedings after divorce or civil partnership dissolution can take a year, but can take 18 months to 2 years or longer from the date the Form A is issued.
At every court hearing both solicitors must provide a schedule of the legal fees that have been incurred so far. The idea is that the judge can have the costs in mind and keep the work to be done in proportion. Nevertheless, financial proceedings are very expensive because they are time-consuming. As well as time spent at court for hearings, preparing the Form E and enclosures and the replies to the questionnaire are expensive. Most courts ask the parties to all cases on a day to come to the court for 10 am even if the hearing is only some time later that morning or even in the afternoon; other courts are so full that they have cases which do not even have a judge allocated to them and everyone can be waiting all day until a judge becomes free with no guarantee of the hearing going ahead at all. Since lawyers’ charges are generally based on the time spent, this is an enormous waste of money. It is therefore always cheaper to settle a case.
If you litigate through the courts about finances, this is naturally going to cost money on lawyers (as well as lost wages for days in court and stress etc). You may therefore argue about a shirking pot to divide. Mediation is a good and inexpensive way to come to an overall settlement without going to court. Therefore, it is compulsory in most cases for anyone who wants to make an application to the court for a financial order to attend a Mediation Information and Assessment Meeting (MIAM) first.
If you do not start financial court proceedings and you get married or register a civil partnership after divorce decree absolute (or the final order of the civil partnership dissolution), you will not later on be able to make a financial claim against your former spouse or civil partner, unless you have made the claim by ticking the boxes at the bottom of the divorce petition or in a respondent’s “answer”. This can be a problem if there is still a jointly-owned property, for example, and you could then only ask the court to deal with it under property law.
For advice on your specific circumstances please contact a solicitor
24 May 2016 by Andrea Woelke