Applications for a financial remedy

Whenever possible we will attempt to negotiate a financial settlement between the parties. In you are unable to agree with your partner how the marital assets should be divided, then the Court has unlimited discretion to determine this. Issuing Court proceedings does not mean that negotiations have to stop, and throughout the process Kew Law will continue to try and negotiate a settlement.  The Court, however, will timetable your case which will mean that the matter will move forward and more often than not an agreement is reached at the Court hearing; however, in some circumstances this is not possible and the case progresses to a final hearing where a Judge will make an Order.

In divorce proceedings, each party can apply to the Court for ancillary relief and the following Orders:-

• Periodical Payment Orders including maintenance pending suit. The Court can order one spouse to pay the other spouse payment out of their income
• A Property Adjustment Order (for example to transfer property from the joint names into one party’s sole name)
• A Lump Sum Order (payment of a lump sun or lump sums by one party to the other)
• Pension Share and Attachment Orders – These are Orders made by the Court to provide a pension fund to transfer part of the fund to the other spouse or pay part of the pension income to the other spouse
• Orders for Sale (for example of the family home)

Child Maintenance orders are usually dealt with by agreement or by applying to the Child Support Agency.

The Procedure

When an application is made to the Court, the Court will timetable the case as follows:-

1. The Court issues a Notice of Application and lists a First Appointment which is the first hearing at Court and will usually be made within 12 to 14 weeks from the date of issuing  the application.
2. 35 days before the First Appointment, both parties will be required to complete a financial statement known as Form E and file this at Court with full supporting documentary evidence.  A copy of this document must also be sent to your spouse/spouse’s solicitors.
3. 14 days prior to the First Appointment, both parties will be required to set out what they believe to be the main issues in the case in a document known as a Statement of Issues, and provide a Questionnaire setting out whether there is any further information or documents that are required.
4. Finally, each party must prepare a Chronology detailing the significant events in the parties’ relationship.

If the parties have all the information they require, they can apply to the Court for the First Appointment to be treated as a Financial Dispute Resolution hearing.  If the parties do not have all the requisite information, the District Judge will then make a number of directions to prepare the case ready for the Financial Dispute Resolution hearing and set a date for that hearing.

The Financial Dispute Resolution hearing

The Financial Dispute Resolution hearing, known as the FDR, is an opportunity for the parties, through their legal representatives, to try and reach an agreement   with the assistance of the District Judge.  The District Judge cannot decide the case at the FDR but if the parties reach an agreement he can made an Order by Consent.  If no agreement is reached, the District Judge will then give directions for the final hearing.  The District Judge who presided at the Financial Dispute Resolution appointment will not be able to hear a Final Hearing and the case will be referred to a separate District Judge who will not usually have had any previous involvement with the case, or seen offers to settle.  The District Judge hearing the Financial Dispute Resolution appointment will listen to a summary of the legal issues from both parties’ solicitors and consider offers to settle made by both parties.  The District Judge will then give his opinion on how he believes the case should be dealt with.  The District Judge will often then give the parties the opportunity to see if an agreement can be reached.  If an agreement can be reached, the District Judge can make an Order by Consent.  If an agreement cannot be reached, the matter will be set down for a final hearing.

The Final Hearing

A District Judge who has had no previous involvement with the case or seen any offers to settle will listen to evidence from both parties and will then make an Order.  It is always open to the parties to agree settlement right up until the Final Hearing commences.

If you require any advice with regard to ancillary relief proceedings or representation within proceedings, then please do not hesitate to contact us here or telephone

The Duty of Full and Frank Disclosure

Whichever route you use to achieve agreement, there should be full and frank disclosure of the matrimonial assets.  This means that you and your partner are under a continuing duty to disclose to each other full and frank details of your financial position.  You should, therefore, give full details of your income, outgoings and capital to your spouse/partner and she should provide you with similar information.  This duty also includes likely future changes in your position and the duty of disclosure is ongoing so that if anything changes before a Final Order is made, you are obliged to disclose this as well.

How does the Court decide how to divide the matrimonial assets?

The Court will consider all the circumstances of the case including a checklist of factors set out in the Matrimonial Causes Act 1973 Section 25 which are as follows:-

• The income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future, including, in the case of earning capacity, any increase in that capacity which it would be, in the opinion of the Court, reasonable to expect a person to take steps to acquire
• The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future
• The standard of living enjoyed by the family before the breakdown of the marriage
• The ages of each spouse and the duration of the marriage
• Any physical or mental disability of each spouse
• The contributions which each spouse has made or is likely to make in the foreseeable future to the wealth of the family, including any contribution by looking after the home or caring for the family
• The conduct of each spouse if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard
• The value to each spouse of any benefit which one spouse, because of the divorce, will lose the chance of acquiring i.e. pension provision

The Court will also consider whether there has been any pre-nuptial or post-nuptial agreement entered into by the parties.

The District Judge has a very wide discretion as to the Order he/she can make.  This discretion can make it difficult to predict beforehand the precise outcome; however, solicitors with full information should be able to give you a good idea of how the Court will look at your case, and what would be a fair settlement.

Contact us or call our mobile friendly number 033 33 22 1000 or 0800 987 8156 to book an initial consultation with our Family Law Solicitor.

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