As a party to divorce proceedings, whether petitioner or respondent, you have the right to bring a claim for financial remedy against your spouse if you cannot agree matters between you. The claims that you can bring are as follows:

  • Spousal Periodical Payments, i.e. an Order that your spouse pay you a monthly amount. This would normally be for a fixed period of time and will commonly be increased from year to year.
  • Maintenance Pending Suit – this is an application for spousal maintenance pending the final resolution of your case which can be brought in the event you simply cannot pay your essential living costs (for example, the cost of food, services to the home, rent or mortgage payments, but not non-essential expenses such as gym membership or eating out) and your spouse has not paid a reasonable sum of money to you in the interim.
  • Child maintenance ‘top up’ order – the Child Maintenance Service deals with claims for child maintenance but in certain circumstances you may apply for a ‘top up’ of child maintenance.
  • Lump Sum Order – this would be an Order that your spouse pays you a certain sum of money by a set date.
  • Transfer of Property Order – the court may order the sale or transfer of your family home or any other properties or assets (such as shares or a car) which you or your spouse may own.
  • Pension Sharing Order – the courts may order that your spouse should receive a percentage of the Transfer Value of your pension.

Before issuing a financial remedy claim you are required to try and resolve matters with your spouse through mediation. Mediation is not for everybody and there are some exemptions to this requirement to attend, but without one of these exemptions applying, at the very least you have to attend a mediation information assessment meeting (known as a MIAM) to discuss the mediation process with an expert mediator. Your spouse does not attend this first meeting with you. If you wish or the mediator requires mediation to proceed, then your spouse will be invited to attend a MIAM and thereafter joined mediation sessions can take place if you both wish them to.

Other options to try and avoid court proceedings are to try and negotiate either directly or through solicitors.

If you do not resolve matters an application for financial remedy needs to be issued at Court.

Once financial remedy proceedings have been issued, you will be sent a date for your first hearing which is a ‘directions’ appointment, referred to as the FDA or Financial Directions Appointment. The court will give you a timetable of tasks to complete before the hearing, specifically completion and exchange of financial disclosure in Form E, filing of a Chronology, Schedule of Issues and a Questionnaire setting out any questions you wish to put to your spouse having read their Form E.

The Form E is the title given to the document you are required to complete setting out your financial position and to which you attach relevant financial documents. Typically speaking, the documents you are required to produce should go back at least one year. You must endeavour to complete the form fully, including details of all of your bank accounts, other assets including but not limited to property, ISA’s or other investment/saving funds, shares, endowment policies, income or premium bonds, pensions, personal possessions worth over £500, such as jewellery, a watch or a car.

You must also set out your debts, if any, and your income with documents support it. You are able to include some narrative information in the Form such as any known future changes to your financial position, comments you wish to make about contributions to the family assets and generally other matters which you wish the court to consider.

It is important to be as thorough as you can when completing your Form E as this will undoubtedly save costs and limit the number of questions you may be asked by your spouse moving forward.

It is possible you will need to instruct an expert witness to provide a valuation of one or more assets. You might require a surveyor to value your family home or other properties which you or your spouse may own, or an accountant might be asked to advise of the potential tax liabilities on the disposal of assets, or a valuation of a business may be needed. An Actuary is often required to value one or more of more of the pensions. 

This is not an exhaustive list and it may be necessary to instruct experts in other fields, depending on your personal situation. Typically, expert witnesses are instructed by the parties jointly and the expert’s duty is to the court, as opposed to one of the parties. Broadly speaking, once an expert report has been received, both parties are bound by it. There are limited exceptions where the court might grant permission to one party to obtain another report, but this is very much the exception not the norm and there would need to be a very good reason for a second report to be commissioned. You are not entitled to seek another report just because you do not like the report provided. This is known as ‘expert shopping’.

The purpose of the FDA is to set a timetable to advance your case. The court may need to hear arguments as to whether certain documents requested should be produced or on the suitability of questions that either you or your spouse have made if there is an objection to one or more of the questions.

The court will also determine any application made for permission to instruct an expert witness.

The court will set the matter down for a second hearing which is the Financial Dispute Resolution Appointment, commonly known as the ‘FDR’, which will usually be six – nine months later.

The court will have set out a timetable of steps that you and your spouse have to take, at the First Directions Appointment. It is important to timetable these tasks so that you can ensure they are attended to in good time for the hearing. You will almost certainly be required to exchange without prejudice offers at least 7 days before the FDR so you should start considering:

  1. What financial settlement you would be looking for in the event the matter does not settle and proceeds to trial.
  2. How far you will be willing to move from that position to try and settle without needing a trial.

At the FDR the judge will be presented with a summary of each parties position on issues in dispute and will be able to give guidance on what he or she considers to be a sensible and fair resolution to these issues, to assist in negotiating. Your solicitor or barrister will speak directly to try and negotiate a settlement, subject of course to your agreement.

If you do not settle your case with your spouse at the FDR, the Judge will set a further list of tasks that you and your spouse will need to undertake to prepare for the Final Hearing. Typically this will be to update your financial disclosure, file Witness Statements, if appropriate obtain updated Experts reports, and there will be some standard directions dealing with the run up to trial, such as preparation of court bundles and a requirement upon each party to set out their ‘open’ proposals.

The Judge who heard your case at FDR cannot be your trial Judge as she or he would have read the without prejudice offers you would have exchanged before the hearing and would have heard details of further without prejudice offers that were made as part of the negotiation process on the day.

The run up and preparation of a Final Hearing is regrettably quite expensive, and you can expect to double your legal fees from the date of the FDR to the date of the Final Hearing as a broad guide.

Your Witness Statement should set out a short chronology of your relationship, a summary of your financial position, and what you are asking the court to do and why, referring to Section 25 of the Matrimonial Causes Act 1973, which is a list of matters which the court needs to consider when determining your case. They are not listed in any order, but the financial needs of minor children, if any, do come first:

  1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.
  2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
  3. The standard of living enjoyed by the family before the breakdown of the marriage.
  4. The age of each party to the marriage and the duration of the marriage.
  5. Any physical or mental disability of either of the parties to the marriage.
  6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
  7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
  8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit.

Your Witness Statement must be very thoroughly prepared as it is your evidence to the court, and you will almost certainly be cross examined on it by your spouse’s legal representative at Final Hearing. You may also be asked questions by the Judge.

Remember that it is your statement even though it would be drafted by your solicitor.

If you do not resolve matters prior to your Final Hearing, the court will have given you a time estimate and you will, after having discussed matters with your solicitor come up with a timetable for the Final Hearing. 

Technically, the Judge will take the first 1-2 hours of the time listed for the hearing to read all of the relevant documentation and it is common for the trial itself to commence between 11 am and 12 pm on the first day. 

The Applicant will give evidence first, followed by the Respondent. As your evidence is in the form of a Witness Statement, you would typically be asked maybe a couple of questions by your own solicitor or barrister, and you would then be cross examined by your spouse’s barrister. You may also be asked questions by the Judge. 

In certain cases, there may be third parties who are required to give evidence. Your respective barristers would then set out your position to the Judge by way of summary, commonly called ‘closing arguments’. The Judge will then decide and issue you with his or her Judgment. Typically, the Judge will adjourn the hearing for an hour or more to consider his or her Judgment.

In some cases, the Judge will reserve Judgment, that is to say he or she will set a further hearing within the next 28 days for Judgment to be given. Your barristers will then, between them, draft the Order that the Judge has made.

Firstly, it is always open to the parties to negotiate a settlement. The court is always happy to hear the parties have settled matters without the need for a Final Hearing, whether it is early in the process or even the day before the Final Hearing is due to commence.

If you are close to settling but haven’t been able to bridge the gap between you, it might be of assistance to engage in a ’round table meeting’ with your spouse and his or her legal team to try and conclude a settlement.

You could agree private mediation with your spouse. This would take a different path to your initial mediation. You would agree to hire a mediator for a day. A private mediation would typically take place at one of the solicitor’s offices with your solicitor and possibly your barrister. The mediator would work with both parties to try and resolve matters, in which case a Consent Order could be drafted and signed on the day.

The final option would be to both agree to binding arbitration. Effectively this is akin to having a private Final Hearing. You and your spouse would jointly agree to hire and equally meet the costs of a private Judge who would effectively conduct a trial and then issue a Judgment. This could then be used to prepare a Final Order which would be submitted to the court for approval.

The general rule is that each party is responsible for their owns costs. However, often one party will fund the other’s costs. However, if this cannot be agreed there are specialist litigation funders we can approach.

If this does not succeed you could apply to the Court for a Legal Services Order. This is an interim Order where an application is made to the Court seeking that your spouse / ex- partner pay your legal costs or settle any unpaid legal fees. However, in applying you should consider in the first instance whether or not you have assets which can be used to pay your fees, whether or not you would be eligible for a litigation loan and finally whether or not your chosen solicitors can enter into a fee arrangement with you such as a sears tooth agreement. It is important that you seek legal advice before considering making this application.

The costs will vary and will depend on the arbitrator. Most often they charge at an hourly rate and some arbitrators can charge a fixed fee.

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For help and advice, talk to a member of our team. They can advise on the best options in your matter.

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