Financial Disputes/Settlements

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These are dealt with as a separate part of the divorce procedure. It is important to remember that you should not remarry until you have made and preferably resolved any financial issue between yourself and your spouse.

The usual starting point in the division of the marital assets is one of equality

Depending upon the circumstances of each case, it is usual to include in the divorce petition financial claims for both the spouse and the children. Usually these are:Interim maintenance (called maintenance pending suit and designed to last until the court make an order for periodical payments)Periodical Payments (maintenance after the divorce)Secured Provision (payment secured upon an asset)Payment of a lump sumA property adjustment order (the transfer of property or changing the ownership of property)A pension sharing or pension attachment order. (sharing the pensions when they are payable)Lawyers usually refer to these applications and to the orders as "ancillary relief". These proceedings are begun by filing a Form A with the Court. The fee for the court application is currently £240.00. The Court will set the date for the First Appointment and that will be shown on the application when it is returned after it being issued. The first appointment is not less than 12 weeks and not more than 16 weeks after the application has been filed with the court.

At least 35 days before the First Appointment you and your partner have to exchange and file at the Court full details of your capital and income, assets and liabilities, and details of all the other matters in a set form called Form E. Form E is extremely detailed and requires some time to prepare properly. Amongst the information needed is 12 months bank statements for any account you have, least 3 payslips, your last P60, and the CETV of your pension. CETV is the cash equivalent transfer value of your pension fund and represents the notional value of the fund. You are likely to incur a lot of legal costs in the preparation of your form E. The more you do, the better your preparation, the less work and cost to you.

At least 14 days before the First Appointment both you and your partner have to exchange and file at Court the following:A statement of the issues in dispute;A questionnaire setting out what further information and documents should be relevant to the issues, stated to be in dispute in the statement of issues; andA notice stating whether or not you will be in a position to treat the First Appointment as an F.D.R. Appointment.
 
This means that at the First Appointment at which you and your partner and the respective legal advisors attend, the Court will hopefully be in possession of a substantial amount of information about the financial issues between you both, and the Judge will then set out an agenda for the case which could for example give a timescale within which the questions must be answered, a valuation for the home must be obtained, or other evidence filed. That timetable will then be made in a Court Order and will invariably include a date for the next court appointment, the F.D.R. The F.D.R. (Financial Dispute Resolution) Appointment often occurs 2-3 months later.

The F.D.R. as with the First Appointment has to be attended by you and your partner and the legal advisors. This hearing will be conducted by a Judge who will have no part to play in your case, if your case proceeds further. The Judge will have to have before him all offers of settlement (which should have been made at least 7 days beforehand), and all evidence which has come into being before and after the First Appointment. The Judge can be asked for his opinion on the likely outcome taking into account what is currently known about both parties' circumstances. The opinion is not binding but can be used as a means to conclude negotiations, to reach a compromise, or bridge the gap between the parties' respective proposals. It is for this reason that this Judge will take no further part in the proceedings. In short, the purpose of the F.D.R Appointment 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 an Order which once complied with, will mean that the case has been concluded. Only if the F.D.R is unsuccessful will the Judge give further directions (make further Orders about the way in which the case will go forward), and will fix a date for a Final Hearing, probably several months ahead.

Costs

At every stage of the appearances at Court, both sides' legal advisors have to provide, a schedule of the costs which you have incurred. The costs incurred by you in the Financial Court Proceedings are incurred in particular in relation to the preparation of your Form E and before and at each appearance at Court. The vast majority of cases are settled and never go to a Final Hearing. Our objective is for you to reach an agreement if possible with your partner, earlier rather than later and with a view to ensuring that the costs you incur are kept to the minimum

The Statutory Criteria

There are a number of different factors that the judge takes into account and which are set out in the Matrimonial Causes Act 1973. Again, first consideration goes to the welfare of the children, and they take priority over everything else. There then follows a number of other different factors that do not have any specific order. These factors include:income, earning capacity, property and financial resourcesneeds obligations and responsibilitiesthe standard of living enjoyed during the marriagethe age of the parties and the duration of the marriageany physical or mental disabilitiesthe contributions made by the parties

Generally, the starting point is one of equality with non financial contributions being treated in the same way as financial ones. Whether or not the matrimonial home will have to be sold is often a crucial question, which will depend upon all the facts of the case. If there are children, they have priority and will need to be housed. However, sometimes, a sale is the only course open e.g. where there is substantial equity in the property which if released would enable both parties to be re-housed in suitable alternative accommodation.

All cases are different and the timetable for each will vary according to the individual circumstances. This is intended to provide an overview of the procedure and because of this; it is general in nature rather than specific to your case.

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