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At Sousa Law we actively encourage divorcing or separating couples to agree financial matters sensibly and amicably whether directly, through some other form.
If you agree financial matters upon divorce a consent order can be drafted by us incorporating the terms of the agreement. There may be some financial issues which you have not considered if you have come to direct agreement such as pension assets or maintenance payments for example. You will be advised by us about any missing parts of the agreement for inclusion into the Consent Order to ensure that the Order is comprehensive and there is no possibility of the order being overturned or revisited in any way in future.
You will be asked to provide a schedule of the value of assets and liabilities (including equity in property and pension valuations) whether in joint or sole names. This information will be recorded in a form known as a Statement of Information and must be accurate. The Consent Order and Statement of Information are both sent to the Court for approval by the Judge with the Court fee of £50. The Consent Order cannot be filed with the Court until after decree nisi is pronounced and importantly the Court will not accept the Consent Order without the statement of information.
The District Judge will consider the Consent Order and Statement of Information and if satisfied that all is in order the Consent Order will be approved and sealed by the Court making it a final Order and legally binding. The Judge does have the power to refuse to make an Order, although this rarely happens. If on the face of the paperwork the agreement appears essentially unfair the Judge may ask questions or even request a hearing to justify the reasoning behind the agreement.
If financial matters are not capable of agreement then it may become necessary to issue court proceedings for financial orders to be made so that a Judge may decide on what should happen with regards to the couple’s finances. If the matter proceeds to a final hearing then the interval between filing the original application and the final hearing may be in the region of 10 – 12 months.
Under the court rules there are various stages where the control of the procedure is in the hands of the court. The principle stages in an application to decide financial orders upon divorce are set out below in a simplified form. It is important to remember that each stage can be avoided if prior agreement or settlement of claims is reached.
First Directions Appointment (FDA)
Both husband and wife and their legal advisors should attend this hearing unless excused from doing so by the court. The court will be in possession of a substantial amount of information about the financial issues between the couple and the Judge will set out an agenda for the case which would usually include a timescale within which the questionnaires must be answered and within which any valuations must be obtained for certain assets such as property, businesses or pensions. The Judge will also consider whether any other evidence should be filed to enable effective negotiations between the couple. This agenda will be set out in a court order and will include a date for a ‘Financial Dispute Resolution’ (‘FDR) Appointment often 3 – 4 months later.
Financial Dispute Resolution (FDR)
As with the FDA this hearing must be attended by both parties and their legal advisors who must all arrive at least one hour before the hearing is listed so that some negotiations can be attempted before if possible. The FDR will be conducted by a Judge who will have copies of all offers for settlement which have been made and all evidence which has been filed with the Court. There is a duty of on-going disclosure and therefore further updating statements and values may be required at this stage to ensure that an accurate schedule of assets and income can be produced. The purpose of the FDR is to see if it is possible to come to an overall financial settlement. Frequently but not always this objective is achieved and the Judge can then make a final order which once complied with means that the case has been concluded. At FDR a Judge will be invited to give an indication as to the likely outcome of the case if it were to proceed to Final Hearing. This can be an invaluable tool to assist settlement. If the FDR is unsuccessful and agreement is not reached the Judge will give further directions for any remaining documents or evidence to be produced and will fix a date for a Final Hearing.
At the final hearing the Judge will hear evidence from both husband and wife in a witness box and decide on the appropriate financial order. The Judge will ask specific questions about each party’s financial dealings. The final order may or may not be in line with what one spouse was seeking. This hearing usually lasts at least 1 day or more.
When making a financial order upon divorce the Court will take various matters into account. The Court considers all the circumstances of a case, and in particular the Court has regard to the following matters:
The aim of the Court is to achieve fairness. Following the landmark case of White v White  the Court must consider an equal division of assets built up during the marriage, unless the marriage was of short duration, or the assets are insufficient to satisfy capital needs.
At every stage of appearance at court both husband and wife must provide a schedule of costs to the court which has to be in a prescribed form – ‘Form H’. The vast majority of cases are settled and never go to a final hearing. There is a general costs rule that each party will bear their own legal costs unless there is strong evidence that one party has behaved inappropriately within the court proceedings such as hiding assets or not fully disclosing financial information.
We hope this is helpful as an overview – it is only an overview however and we will advise you along the way in relation to more detailed aspects of each stage and your particular case and circumstances as necessary.
For specialist advice in all areas of Family Law and Wills & Probate please contact us on 02380 713 060 for a free consultation.Book a call back