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This is 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.
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 sum
A 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)
These proceedings are begun by filing a Form A with the Court
The Court will set the date for the First Appointment and that will be shown on the application when it is returned after it has been 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 spouse will be required 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. The 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, at least 3 payslips, your last P60, and the CEV of your pension. CEV is the cash equivalent value of your pension fund and represents the notional value of the fund.
At least 14 days before the First Appointment both you and your spouse will be required to exchange and file at Court the following:
i) A chronology setting out details of the important dates in the marriage and proceedings;
ii) A statement of the issues in dispute;
iii) A questionnaire setting out what further information and documents are required in relation to your spouse’s disclosure. This will assist in gathering all of the necessary information in relation to your spouse’s finances so that we can determine the extent of his/her assets; and
iv) A notice stating whether or not you will be in a position to treat the First Appointment as a Financial Dispute Resolution Appointment (FDR).
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 FDR. The FDR often occurs 2-3 months later.
The FDR as with the First Appointment has to be attended by you and your spouse 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 FDR 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 FDR is unsuccessful will the Judge give further directions (make further Orders about the way in which the case will move 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 Court will consider costs at each stage of the proceedings. The Court will only make an order for costs when it is justified due to the litigation conduct of one of the parties. When assessing the parties’ conduct, the court will consider any failure to comply with an order as well as the manner in which a party has raised or responded to an application, allegation or issue and whether it was reasonable for a party to raise or pursue a particular issue. The court will also consider any other aspect of a party’s conduct that it feels to be relevant as well as any open offers to settle that have been made.
The Court’s Approach - When looking at settlement of a case, the Court’s first consideration will be the welfare of the children and to ensure that the children’s needs can be met.
The principal objective of a fair outcome in proceedings for a financial order requires the court to consider three principles, namely, the parties’ relationship-generated needs (generously interpreted), compensation for relationship-generated disadvantage and sharing of the financial fruits of the relationship. The “equal sharing principle” or the “yard stick of equality” should be applied.
The judge will also take into account the statutory criteria which are set out in the Matrimonial Causes Act 1973. These factors include:
income, earning capacity, property and financial resources
needs obligations and responsibilities
the standard of living enjoyed during the marriage
the age of the parties and the duration of the marriage
any physical or mental disabilities
the contributions made by the parties
the conduct of each of the parties (if that conduct is such that it would be inequitable to disregard)
the value to each of the parties of the benefit which due to the dissolution of the marriage, that part will lose the chance of acquiring
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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