Lauren Preedy – Senior Solicitor – Head of Divorce Team
Whilst the divorce itself is normally reasonably straightforward, sorting out the future financial arrangements following a divorce or civil partnership dissolution normally the matter which requires most attention.
When a couple enter into a marriage or civil partnership each will acquire rights to be financially supported/provided for by the other. If/when the couple have children – then there are further obligations to provide for their children (or children that have been treated as children of the marriage/civil partnership).
When the marriage or civil partnership comes to an end, each is entitled to a fair financial settlement. What fairness means will be very individual to the circumstances of the couple and their family.
Ideally the couple will agree how their assets will be divided between them and what provision there will be (if any) for spousal maintenance and for child maintenance. Sometimes there will be a clean break between the couple – but this is not automatic.
Before any financial agreement between the couple is binding, it needs to be approved by a court. The court will not rubber-stamp what a couple agree. Instead the judge will need to be satisfied that the reasonable needs of each of the couple and their minor children have been met. There is more about the factors that the judge by law has to consider below.
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Ideally, the financial arrangements will be agreed through negotiation.
This could be with the assistance of mediation or collaborative family law. Sometimes the couple will ask a private judge to make a legally binding determination through the process of arbitration. But, if no agreement can be reached, then either of the couple may make an application to the court. There then follows a court process which will end with the financial order being made. There is a bit more about the procedure below.
But, sensibly negotiated and fair solutions should be just as fair as what may have been ordered by a court after an expensive and divisive court process. They will be achieved quicker and at less cost. Where a couple have children – the achievement of having reached a negotiated solution together will hopefully assist the couple working together
Finalising financial arrangements is normally a two-stage process. Firstly there is financial disclosure. Then after financial disclosure has taken place there is negotiation.
Both of the couple are under a duty to provide full financial disclosure. This can extend to having properties valued and obtaining valuations of pensions and other assets. Negotiation means making informed decisions – and this is not possible without full information.
Our specialist team
We have built a very strong specialist team of divorce lawyers – supported by our in-house accountant.
The Head of our divorce team – Lauren Preedy is the chair of the Somerset region of Resolution. Our team also includes other very experienced divorce lawyers. In our view our team is a strong as anyone else in the South-West.
Good legal practice is about finding fair solutions.
Couple separate because they are not getting on. The process of working out what will be a fair financial settlement can be stressful and it is very easy for this to contribute to relations between the couple getting even worse.
Whilst sometimes it is necessary to make an application to the court – a court application is not automatically the best way forward. The best way of achieving a solution will vary from case to case. A key factor will be the willingness of both of the couple to provide all relevant financial information and the willingness of both of the couple to enter into meaningful negotiations.
When either of a couple choose a solicitor – they want their solicitor to guide them through what could be a very challenging time, as nicely as possible – but with the confidence that the solicitor is on their side and is working for them to achieve a fair financial arrangement.
If sensible negotiations can be undertaken – then it may be that the only interaction with the court will be asking the court to approve what will have been agreed as being a fair settlement/final court order.
The negotiations could take place through principled negotiation through solicitors, collaborative family law, mediation (with legal advice in support of the mediation or the lawyers attending some of the mediation meetings) or through using arbitration (a private judge).
Some FAQs about divorce finance court cases
Who can apply to court for a divorce financial order?
Either spouse or civil partner can make an application to court to resolve financial disputes arising from divorce or civil partnership dissolution. The person making the application is the applicant and the other person is the respondent.
What happens when the application for a divorce finance order is received by the court?
When either of the couple makes the application to court, the court automatically generates certain standard procedural timetable (directions) through which the case will proceed. These will include:
the date and time for the first court hearing (sometimes referred to as a first directions appointment or first appointment)
that five weeks before the first court hearing each of the couple must each send a completed a completed financial disclosure form (Form E) to the court and to the other of the couple and/or their solicitor. The Form E is to gives full details of each of the couples financial circumstances together with supporting documentation.
then two weeks before first hearing each must each send to the court and exchange with the other party:
a short statement about what the disputed financial issues between them
a chronology of the important events in the marriage or civil partnership
a questionnaire if they have any queries on the other person’s financial disclosure, and
a form saying whether they will be using the first court hearing for further timetabling/procedural orders (e.g. seeking further financial information) or if will be able to negotiate to see if you can reach an agreement.
What happens at the first court appointment?
Unless the couple have both said they are in a position where they can negotiate, the first appointment is usually a procedural hearing. This is also known as a First Directions Appointment or FDA.
The judge will decide what additional steps need to be taken (usually related to financial information) to get the case ready so that meaningful negotiation can take place. Often this will mean the obtaining of report from a pension’s expert. Sometimes other experts are needed – for example to fix the value of property or other assets (for example a business).
Normally there is only one expert for each item where expert evidence is needed. This will be a single joint expert. If the lawyers cannot agree who the expert will be, then the judge will decide.
The court hearing will result in a timetable by which the various information required needs to be available and the court will fix a date for the next court hearing. In complicated cases there may need to be a further procedural hearing, but in most cases the judge will fix a date for what is called the Financial Dispute Resolution Hearing (FDR) – more about this below.
Before every court hearing, each party must file at court and exchange a statement of their legal costs.
What happens at the Financial Dispute Resolution Hearing (FDR)?
The FDR (financial dispute resolution) hearing is usually the second court appointment. It can sometimes take place at the first appointment, provided that both of the couple and their legal teams have all the information they need early on. Providing full information early will therefore save time and cost.
Essentially, the judge will try and assist negotiations. The judge is able to give an indication of what they would order if they were asked to decide the case on that day (without having her detailed evidence). This can assist negotiations – as it can give a reality check if one party is being completely unrealistic.
If an agreement is reached then the judge can approve the final order.
If no agreement is reached then the case then the judge will make further procedural orders so that the case is ready for final hearing. If possible the judge will set a date for the final hearing.
What happens at the final hearing?
The judge will hear evidence from each of the couple and any experts. Witnesses may be cross-examined.
At the end of the hearing each legal team will make submissions the judge saying what the judge should order and why.
The judge will then make a decision/order. The judge is entitled not to make a decision on the day – but to allow themselves to have time to have a think. That is unusual. In most cases a decision is made on the day or the judge says what his decision will be – but his full reasons will follow.
The judge is required to set out fully the reasons for his decision.
There is limited scope to have your costs paid by the other person in financial proceedings. The general rule is that each person pays their own legal fees.
What happens after the final hearing?
Unfortunately there is still work to be done after the final financial order.
Often obtaining the final divorce decree is the first task. If there are pensions involved then it is normal not to apply for the decree absolute until after there is agreement or the court has made a final financial order. This is because of the possible effect on pension rights/death benefits if the divorce was completed earlier.
The financial order will take effect after decree absolute.
The order will need to be implemented. This could include pension transfers in respect of pension sharing orders and the sale or transfer of properties.
If someone doesn’t comply with the order – there will also be the question of enforcement – making them do what they are supposed to.
In addition, if it comes to light that one of the party has lied about their financial position – then it may be possible to reopen the order. This wouldn’t mean quite going back to square one – but nearly. If that situation arose then there could also be big implications about costs.
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