SEPARATION FINANCES - THROUGH THE COURTS (Disputed property division)
This page briefly considers the Court’s approach to resolving the outstanding financial issues following divorce and what you can expect from the process.
The first thing to be aware of is that from the start (issuing proceedings) to finish (getting a Court Order) the entire process can be very expensive. The second thing to be aware of is that the process can be broken down into relatively simple stages. The third thing to be aware of is that properly GUIDED throughout the process you could save yourself many THOUSANDS of pounds by doing an awful lot of it yourself. Read on to find out more.
Talking doesn’t work, letters are ignored, texts are misinterpreted, offers are rejected. If this is familiar to you, be assured you are not alone.
Needing the Court to decide how the property and financial assets should be divided is not uncommon. Many people are unable to reach agreement during the emotionally charged period following the breakdown of a marriage; sometimes its about the children, sometimes its about the finances, sometimes its about both.
The thought of embarking on an application for a Financial Order can be daunting. The forms themselves can sometimes be intimidating. However, after a deep breath and slowing down enough to read them, you’ll soon discover that they are often written in simple language and ask for information that is easy to obtain.
THE COURT PROCESS:
This is a guide. The process options that the Court has are varied, but generally they adopt the following path: The process starts because your marriage or civil partnership has unfortunately run its course. To formally end that relationship a divorce (marriage) or dissolution (civil partnership) is needed. Once the divorce petition (form) has been completed and sent to the Court an application for a Financial Order stating who should get what can be made.
The application is made on a Form A. These can be obtained from the Court or alternatively Google them. This form is completed and sent to the Court with the appropriate fee. Your circumstances may make you eligible for a waiver of the Court fee.
Once the Court receives this form it will give you both notice of the date of the First Appointment. It will also give you both some homework to do. The homework is usually to complete a Form E. This is a big form (about 30 pages). You may find however that most of it will not be relevant. The Form E is going to be treated by the Court as a statement made by you as to your financial circumstances. The Form asks for documents to support the information within it (e.g. 12 months bank statements for each account held, current pension valuation). This may all sound like a lot but it is nothing that you cannot do yourself AND FOR FREE.
The Court will then require a statement of issues, a chronology, a questionnaire and a notice stating whether you’ll be able to treat the first hearing as the second hearing (the second one is where you try one last time to reach agreement without the need for a trial).
The First Hearing will then usually take place in private. At this hearing the Court will usually try and identify what outstanding information stands in the way of a settlement. Invariably there is disagreement about the value of assets and the Court will therefore make an order stating that the property should be valued (make Directions). The Court will also consider the questions contained in both sides questionnaires and decide which questions should and which should not be answered. It will then usually decide a date when the matter will come back before the Court, when its got all this additional information, for an FDR (Financial Dispute Resolution) hearing.
The FDR is a very useful hearing if used properly. It should be used for the purpose of discussion and negotiation. The way the hearing works is different to most hearing. It is usually advisable to have expert representation at this hearing. The Court expects both sides to show their cards face up on the table and to make and respond to offers.
If an agreement is reached an Order is usually drafted there and then, the Court approves it and that is usually a final end to the matter.
If following negotiations an agreement cannot be reached the Judge will invite the parties into their Chambers so that they can advise the parties of the likely outcome if the matter proceeded to trial. This is a private hearing. The Judge will usually clarify for the parties what the issues in case are likely to be. The Judge may also advise the parties about what are good arguments and bad arguments in each others case. It is a wonderful hearing for dispelling unreasonable expectations and narrowing issues. Following this guidance the parties are usually then afforded the opportunity to engage in further negotiations with a view to trying to reach a settlement.
Just because a Judge says that something is what they may do, does not mean that another Judge will do the same thing. However, both sides are usually reassured by the fact that the Judges are so experienced they will rarely be far off the mark. With this in mind, together with the advice given by the Judge and the implications for both costs and delay in pursuing a final hearing being weighty considerations, parties invariably settle at this stage.
In the even that an agreement still cannot be reached the Judge will list the matter for a FINAL HEARING.
The Final Hearing is also heard in private. At a Final Hearing the parties will give their evidence to the Judge and will be cross examined on it. Following this the Court will make a decision about how the property, financial assets and income should be apportioned. This decision when stated will be the Financial Order.
In arriving at its decision the Court will consider firstly the welfare of any child of the family. The court will then consider what are referred to as the s.25 criteria. These include such matters as income, earning capacity, property, resources, expenditure, financial needs, obligations and responsibilities, standard of living, conduct, age of the parties, contributions and the effect of divorce on the value of any benefit but for the divorce a party would have a chance of acquiring.
The Court will want the Final Order determining who has what to be fair and reasonable and be referable to what is referred to as ‘the yardstick of equality’.
DIRECT ACCESS:
Instructing me directly is about saving you costs.
It would be foolish to suggest that there are not subtleties in procedure or pitfalls to be wary of along the way but that is how my approach assists with saving you money. By cherry picking which hearings you require me to attend and only paying for services and resources strictly as and when you need them, you remain in control of the costs and your case. No unchecked, unknown spiraling legal fees ready to surprise you.
I advise you when and how you can save money. I explain the Court’s procedure and discuss the forms with you so that you have the confidence completing them yourself . I also explore with you when and in what circumstances the time might come when instructing me for specific tasks would best advance your case.
If this is an approach you like and one that suits the way you work, then please call me on 0845 245 5866 or alternatively call my clerk Lisa on 0113 227 0708 to arrange a meeting.