If all attempts at resolving the financial aspect of a Divorce or Dissolution have been exhausted, the most usual course of action is to make an application through the Court for a Financial Order or ‘Ancillary Relief’ as it is sometimes known.
Form A and onwards
An application for a Financial Order can only be made after the divorce or civil partnership dissolution proceedings have commenced. Either the Petitioner or the Respondent in the divorce or dissolution can commence proceedings. Whilst this application runs parallel with the divorce, it should be looked at separately and regardless of whether the parties are Petitioner or Respondent in the Divorce, the person who makes the application is called the ‘Applicant’ and the person who responds to the application is called the Respondent.
The application is made on a Form A and filed with the Court, together with a fee. The Court will then forward the Form A to Respondent and provide a directions timetable setting out the dates for the first stages of the application which includes the date by which the parties are to file and serve their financial disclosure and when the first hearing is going to be (the First Appointment).
Financial Disclosure must be in the form of a Court Pro-forma document called a Form E which is a questionnaire setting out in great detail the financial circumstances of each party to the application listing the documentary evidence that is required in support of the Form E and which is normally attached.
After Forms E have been filed with the Court and exchanged between the parties the following documents must be filed and served:
•A Statement of Issues which should set out what is disputed between the parties;
•A Chronology setting out all of the important dates in the marriage;
•A Questionnaire setting out the further information that is sought from the other party.
•Confirmation on a document called a Form G on whether or not the First Appointment can be used to negotiate a settlement (i.e. used as a Financial Dispute Resolution hearing (FDR) – see below) or whether it is not ready to proceed as such.
First Directions Appointment
The First Appointment will take place at Court in front of a District Judge or Deputy District Judge not less than 12 weeks and not more than 16 weeks after the Form A was filed. Both parties must be in attendance.
The reason for the First Appointment is to define the issues between the parties with a view to saving costs. The Judge will determine the extent to which both parties should answer the Questionnaires and produce the documents requested by the other. Directions will be given on valuation evidence, obtaining and exchanging expert evidence, and any further evidence which needs to be produced by either party. Consideration will be given to dealing with the matter as a Financial Dispute Resolution Hearing (FDR – see below) which will usually only be the case if no further evidence is required. If an FDR hearing is not appropriate at this stage then the Judge at the will list the matter for an FDR hearing on a different date.
The Financial Dispute Resolution hearing or FDR hearing as it is more commonly called is a hearing designed to aid negotiations and settlement. This is done by the parties putting their respective positions to the judge and the judge more often than not giving an indication as to how the judge at a final contested hearing would decide the case.
The hearing is ‘without prejudice’ which means that if the parties fail to reach an agreement and the matter proceeds to a final hearing the judge at the final hearing will be different to the one at the FDR who will not be aware of any indications made. The reason for this is to encourage to parties to reach an agreement without the fear that the discussions will be relied upon at a Final Hearing. Furthermore, 7 days prior to the hearing, the applicant must file with the Court details of all offers put and any responses to them. These offers include any ‘without prejudice’ offers which will be removed from the Court file prior to the Final Hearing. If an agreement is reached at the FDR, this will be drawn up into a Consent Order which can then be sealed by the Court. If an agreement is not reached, the case will be listed for a Final Hearing. If an agreement has been reached the judge will implement this agreement into a Consent Order.
Final Hearings are rare but do happen if it has not been possible for the parties to reach an agreement. Both parties will attend a Final Hearing where they will each give evidence to the Court and after all evidence has been put, the Judge will make a determination on how to divide the finances.