Financial Applications

This guide was updated in May 2024.

Note on language: for ease we have used the term ‘former partner’ to refer to the other party to the marriage or civil partnership.

Introduction

As set out above, it is important when getting divorced, or when dissolving a civil partnership, to consider the financial issues that arise out of the separation such as:

• what will happen to any house, or investments, you and your former partner own,
• how should any pensions be divided between you, and
• what financial support will be provided going forward.

Most couples try to reach a financial settlement without having to ask the court to determine their financial claims. Where that is possible the couple will usually convert their agreement into a draft ‘consent order’, which the court is asked to approve as part of their divorce or dissolution. There are a variety of process options which case be used to reach a financial settlement, details of which can be found at: Your process options for divorce and dissolution | Resolution.

However, some couples are not able to come to an agreement in relation to their finances and need to make a financial application to the court. Where an application is made the couple will still be encouraged to try and come to a settlement themselves within those proceedings but ultimately a judge will impose an outcome on them if they cannot. If a court application is made and the case proceeds all the way to a final hearing (see below) then the whole process can take many months, and sometimes years.

This page sets out:

• The orders the court can make
• Where legal advice can be obtained.
• How to make a financial application.
• The court process.

The orders the court can make

Maintenance Pending Suit / Interim Maintenance

Simply, an order that one party pays the other maintenance until the financial proceedings are concluded.  It is called ‘pending suit’ up to pronouncement of final order / final dissolution of a civil partnership and ‘interim maintenance’ if paid after final order / final dissolution order but before the court makes a final financial order.

Periodical Payments

Often known as spousal maintenance (although equally can be paid in favour of a civil partner).  This is a regular (usually monthly) payment to help with costs of living.  Payments can, in some circumstances, be secured against the paying party’s assets.  Payments can be for a set period of time (ie five years, ten years etc), and that ‘term’ can be either extendable or non-extendable, or for the parties’ ‘joint lives’ (ie until the death of the first of the couple to die).

Lump Sum Order

An order that one party pays to the other a sum of money on a specific date, or dates.  It is possible for the court to order that a lump sum can be paid by instalments over time, or for the court to order a series of lump sums.

Property Adjustment Order

An order to change the way in which property is held.  This could be an order that a joint property is transferred into one party’s name or to alter the shares in the property from 50/50 to another proportion.  It could also include an order that the property in question is sold and the proceeds divided between the parties.

Although less common, the courts also have the power to vary trusts.  Variation of trusts on divorce is a very complicated area and if you think this may be relevant to your case you should seek specialist legal advice.

Pension Orders

There are two main types of orders the court can make in relation to pensions.  In summary these are:

• a pension attachment order, where the pension scheme is ordered to make payments to the pension scheme member’s former spouse or civil partner when the pension become payable; and
• a pension sharing order, where the pension scheme is ordered, at the time of the divorce or dissolution, to transfer a defined percentage of the scheme member’s pension into a new pension for their former spouse or former civil partner.

Where a pension has gone into the Pension Protection Fund similar orders can be made in relation to Pension Protection Fund compensation.

Financial Orders for children

Some of the above orders can also be made for the benefit of children although there is a significant overlap with the powers of the Child Maintenance Service.  Again, this is a complicated area and specialist legal advice should be sought.

Legal advice and representation

This is a complex area of law and specialist legal advice is recommended.

Resolution is a national network of family lawyers, committed to the amicable resolution of family law disputes. You can find a Resolution specialist here:

https://resolution.org.uk/find-a-law-professional/.

They will be able to advise you in relation to the financial application.

You may be entitled to free legal representation.  To check your eligibility for legal aid, please see https://www.gov.uk/legal-aid

How to make an application

• If you have remarried, seek immediate legal advice before making an application, as financial claims can be affected by remarriage.
• Before making an application you are required to attend a Mediation Information Assessment Meeting (MIAM) unless certain exceptions apply (ie you have been a victim of domestic abuse). You can find a Resolution accredited mediator on our Find a Law Professional search where you can refine by ‘service offering’ and choose mediation.
• If you cannot resolve the dispute in mediation, or using any other form of dispute resolution, you will need to download and complete the application form: : Form A. There is a page that will need to be signed by the mediator who conducted your MIAM.  You should make three copies of the form.
• You should send two copies of your application to the Family Court for your region (details of which can be found here. You can only do this if you or the other party have already started divorce or dissolution of civil partnership proceedings (for details of how to do this see our guide on what to expect from the divorce process).  You should keep the third copy for your records.
• The court fee to make the application is £275. You can pay this by cheque made payable to HMCTS or by card payment (you will need to call the court to do so).  You may be eligible for a partial or full reduction in the Court fee.  If you wish to apply for this please complete and return with your application form EX160 or complete the online application at https://www.gov.uk/get-help-with-court-fees

The court process

Having received and checked the documents, the court will process the paperwork and fix an initial hearing date know as a ‘First Appointment’ (sometimes referred to as a ‘First Directions Appointment’ (FDA)).

The court will send out a timetable to both parties setting out the steps that must be taken in the lead up to the First Appointment (those steps are detailed below).

It is important to diarise and note each ‘due by date’ together with the court hearing date.

If you have made an application for an order regarding property, trusts or pensions you will also need to send a copy of the application to:

1. any mortgage company who have a mortgage over the property,
2. any trustees of a trust that you are seeking a variation of ,and
3. any pension company responsible for any pension that you are seeking a share of.

The court will not do this for you.

Step 1: Form E

The first step under the court timetable is that you will both need to provide full and frank disclosure of your personal and financial circumstances by completing a document called a Form E.

Click here to download Form E and the notes for guidance.

Form E requires you to provide information and documentation relating to your current financial circumstances and also for you to consider your financial needs in the future.

Supporting documents need to be attached to the Form E, including:

• bank statements for the last 12 months,
• mortgage statements,
• payslips, and
• statements for any investments held by you, either in your sole name or jointly with another person.

The documents required are all highlighted in the form.

Form E is a very important document that must be as up to date and accurate as possible. It will provide the basis of your financial evidence and, if there is a final hearing, you may be cross examined on what you have put in the form so it is important that the contents are true and accurate to the best of your knowledge and belief.  The court can impose sanctions against you if your disclosure is not complete by the appropriate date, or if you fail to provide adequate disclosure.

You must also provide updating information as to any changes in your financial position after you have completed Form E and until all matters are resolved.

Once you have completed your Form E, you should contact your former partner, or their lawyer (if they have one), to arrange to ‘exchange’ your completed forms and supporting documentation (exchange means they are sent to each other at the same time so you should wait until your former partner or their lawyer confirm they are ready).  You should also send your completed form to the court.

The date for sending your Form E to the court and exchanging it with your former partner or their lawyer will be set out in the court order informing you of the First Appointment.

Step 2: First Appointment documents

After you have exchanged Forms E there are various documents that need to be produced before the First Appointment.  They are called the ‘First Appointment documents’ and are:

• A questionnaire setting out any questions you have arising out of the other party’s Form E.
• A statement of issues summarising the factual and legal issues the court will have to consider to deal with your case.
• A chronology setting down the key dates so that the judge has a snapshot of the relevant history.
• A standard form called Form G, used to tell the court whether you can use the First Appointment as a negotiating hearing instead (a ‘Financial Dispute Resolution hearing’ or ‘FDR’).

The court timetable will tell you the date by which your First Appointment documents are due and they should be sent to the court and your former partner or their lawyers by that date.

The questionnaire

When you receive your former partner’s Form E, you should carefully consider the contents and attached documents and, if required, prepare a list of questions setting out any outstanding information or documentation you need to see and raising questions on any further points that need clarifying.

You should be aware that the other party is likely to produce a similar questionnaire raising questions on your Form E too.

Court rules specifically state that the questions in the questionnaire should relate to the issues in dispute and should not be a general request for information that is not relevant. A questionnaire should not be more than four A4 pages long (using not smaller than 12-point font and 1.5 line spacing). The court is only likely to approve a longer questionnaire where the case is complex (for example, if it involves alleged failure to disclose assets).

The chronology

The chronology provides the judge with an overview of the key dates.  It is best to keep it simple and the dates should be relevant to the issues.

 The statement of issues

The statement of issues sets out and identifies the factual and legal issues in dispute between you.  You may wish to take legal advice on what issues are relevant in your case.

Form G

This is a procedural document which is required by the court.  The court should send you a blank form when they send you the court timetable.  You are required to tick a box to confirm whether, or not, the case is ready to proceed to a Financial Dispute Resolution hearing (FDR) (see below) and give your reasons why.

Step 3: Preparation for the First Appointment

The court will usually timetable the First Appointment on a date approximately 12–16 weeks after your application for financial remedy has been processed by the court.  The date of the hearing will be on the order sent out to you by the court.

The purpose of this hearing is for a judge to give ‘directions’ to progress the case, ie to set down a timetable for how matters are to proceed.  Typical directions include, for example, replying to the other party’s questionnaire by a set date, a structure and timetable for obtaining any valuations of properties or businesses and a structure and timetable for obtaining any further expert advice needed, such as on pensions and tax.  The directions will also include a date for the next hearing and the preparation needed for that hearing.

Before the First Appointment there are further key tasks that will need to be completed:

1. 14 days before the First Appointment:
   • The parties will need to send to the court a jointly obtained estimate from an estate agent of the value of any property used as a family home (unless it is rented). If impossible to obtain this jointly, each party should send to the court and the other party an estimate they have obtained themselves and be prepared to explain why it was impossible to do it jointly.
   • Each party should use their best endeavours to send the other party examples of properties that they say are suitable to house themselves and the other party (no more than three of each).
   • The parties should use their best endeavours to send jointly obtained evidence of their borrowing capacities (ie the maximum amount each could borrow by way of a mortgage to rehouse). If impossible to obtain this jointly, each party should send to the court and the other party an estimate they have obtained themselves and be prepared to explain why it was impossible to do it jointly.
2. At least seven days before the first hearing in the case (which will usually be the First Appointment) both parties should send to the court a form, called FM5, setting out their views on utilising “non-court dispute resolution” (ie mediation, collaborative law or another process aimed at settling matters outside of court).  Further details about those non-court dispute resolution processes can be found at: Your process options for divorce and dissolution | Resolution.
3. A folder of the key documents should be prepared for the judge (called a ‘bundle’). If your former partner has a lawyer they will prepare this but they should talk to you about what they intend to put in the bundle and send you a copy. The bundle should not exceed 350 pages unless the court has given permission for a larger bundle. Only documents relevant to the hearing should be included in the bundle; correspondence, bank or credit card statements and other financial records must not be included unless a specific prior direction has been given by the court.
4. At least one day before the First Appointment both parties are required to send to the court and to the other party an estimate of their legal costs that have been incurred up to that hearing and their estimated future costs to the next hearing. A standard court form known as Form H is used to provide that estimate.  Form H can be downloaded here.
5. The day before the First Appointment the parties must send to the court:

1. • a composite case summary using a standard form template known as ‘ES1’; and
   • a composite schedule of assets, liabilities and income using a standard form template known as ‘ES2’.

Both forms are available to download here together with useful guidance (please see the link at the bottom of the page).

The ES1 is a short case summary with room for both parties to set out their positions on the main issues. It also sets out the details of the hearing, including who the lawyers are (if any) and the key dates. The ES1 does not need to be agreed in that neither party has to agree to the way that the other has completed their part of the form. For example, the applicant may say that the parties separated on a particular date that the respondent does not agree; each can put their own date. This enables the court to see what is agreed and what is disputed.

The same applies for the ES2. This enables both parties to say what they believe something to be worth. This should, wherever possible, be based on the most up to date disclosure provided. The parties may not agree what an asset is worth. For example, in the ‘Husband’ column, the applicant may say that a car is worth £20,000 but the respondent disagrees and says it is worth £30,000. Both parties can enter their figures without the other party having to agree it. Any figures more than £50 apart should be highlighted in yellow, and it might assist the court for there to be an agreed (neutral) comment inserted to explain why the figure is disputed.

The court expects both parties to collaborate in preparing these documents.

For guidance on completing the ES2 with an example, please click here.

Step 4: The First Appointment Hearing

The procedure at the First Appointment is relatively straightforward.  Before you go in to see the judge you will have the opportunity to talk to the other party, or their lawyer if they have representation, about what ‘directions’ are required to progress the case.  These may be for valuations to be obtained of properties or businesses, or for a Pensions on Divorce Expert (a “PODE”) to prepare a report about your pensions. You may also be in a position to discuss, and agree, an overall settlement.

You will then go in to see the judge.  The judge will consider any directions you have been able to agree and will also make a binding decision about any directions that you disagree about.  They will provide a full timetable to take the case to the next hearing.  It is important that timetable is complied with going forward.

As part of the First Appointment the judge also has to approve the questionnaires.  The judge has the power to strike out any questions that are unreasonable or irrelevant so it is important that the questionnaire is drafted carefully to avoid this happening.  The judge will set down a deadline by which you and your spouse or civil partner have to reply to those questionnaires.  Your obligations to answer the questionnaire are the same as your obligations to provide financial disclosure.  Your replies must be as full as possible and any relevant documentation must be obtained and attached.

You may wish to consider instructing a solicitor to represent you at court or to instruct a barrister to represent you under the Direct Access Scheme.  The Direct Access Scheme enables members of the public to engage a barrister direct rather than have to go through a solicitors’ firm (which has historically been the only route).

Click here for details, and a searchable list of Direct Access barristers.

In cases where there has been adequate financial disclosure, and there is no need for any expert reports (ie valuations, pension reports),  by the time of the First Appointment it may be possible, with joint agreement, to ask the court to treat the First Appointment as a financial dispute resolution (‘FDR’) hearing.

If you and the other party agree to use the First Appointment as the FDR it is particularly important that the information at paragraph 1 above (under step 3)  is provided to the court at least 14 days before the First Appointment and to ask the court if it can be used as the FDR by completing form G and sending that to the court.

Step 5: The Financial Dispute Resolution hearing (FDR)

The FDR is a hearing that allows the parties the opportunity to try and negotiate a settlement with assistance from a judge. Any discussions had at the hearing, whether before the judge or outside of court, are ‘without prejudice’ which means that they cannot subsequently be relayed to a future judge dealing with the case.  The reason for this is that it allows everyone to focus on exploring potential solutions.

Unless the parties have used the First Appointment as an FDR, the court will almost always timetable an FDR hearing at the First Appointment.  The FDR typically takes place 6-8 weeks after the FDA, although this timescale is dependent on (a) the availability of court dates and (b) what directions were made at the First Appointment and the timetable for dealing with those directions.

Preparation for the FDR

Before the FDR, the parties will have to prepare a bundle and a costs estimate (as with the First Appointment) and to update the ES1 case summary and ES2 asset schedule. The updated ES1 and ES2 must be sent to the court at least seven days before the FDR.

Before the FDR, both parties should send to each other their proposals for how they say the case should be settled.  Those proposals are usually labelled ‘without prejudice’.  It is also helpful for the judge if you can prepare a short summary note setting out your proposals and the rationale for those proposals.

The FDR hearing

You will usually be asked to attend court around one hour before your hearing time.  You are expected to use that hour to try and negotiate a settlement with the other party.  If you cannot reach a settlement, you will both be given the opportunity to put your case to the judge and the judge can then give a non-binding indication as to what might be a ‘fair outcome’ in the circumstances.  You will then be given the opportunity, after hearing that indication, to negotiate further and see if a settlement can then be reached.

At the FDR the judge does not hear any evidence and will take an overview of the assets you have and the issues between you.  They will not conduct a detailed analysis of the case.  The views expressed by the judge at an FDR hearing are not binding upon you but they can be useful in providing an indication of what a judge at a final hearing may order and can help direct discussions towards settlement.

The judge will encourage both of you to try to reach an agreement and compromise wherever appropriate and possible.  The negotiations both before and after the hearing before the judge may go on for some time and it would be wise to make travel and childcare arrangements on the basis that you may be at court for the remainder of the day.

The judge cannot make a final ruling at an FDR, other than to approve any agreement you reach.  If you are unable to reach an agreement, the judge will give further directions to timetable the case to a Final Hearing (see below).  Again, you must ensure you comply with the deadlines for any further documents or evidence you are ordered to produce (this may include a witness statement and / or further financial information).

The judge who dealt with the FDR is not allowed to have any further involvement in the case and will not be your judge at the Final Hearing.  As mentioned above, all discussions and offers made at the FDR are ‘without prejudice’ and cannot be referred to after the FDR or at the Final Hearing.

If an agreement can be reached, and that agreement is approved by the judge, a consent order will be drafted by legal advisers (if instructed) or by the judge.

As with the First Appointment, you may wish to instruct a solicitor or barrister to represent you at the FDR.  If you do wish to be represented, please ensure that you seek advice as quickly as possible to give your solicitor or barrister time to prepare your case for hearing.

Step 6: The Final Hearing

If you cannot reach a settlement at or after the FDR then your case will proceed to a Final Hearing for a judge to, ultimately, make a binding decision about your financial claims.  However, every effort should be made to try and negotiate a settlement to try and avoid that Final Hearing.

The Final Hearing could take a full day, or more, of court time, depending on the issues.  It will be timetabled for a day (or days) some months after the FDR, again depending on court availability and what further procedural steps need to be taken between the FDR and Final Hearing.

Before that Final Hearing a bundle will, again, need to be produced and you will have to produce a full summary of the legal costs you have incurred 14 days before the hearing (using a form called Form H1)

You will also have to tell the court what orders you are asking it to make in advance of the hearing (and the directions made at the FDR will tell you when this needs to be done by).

The parties will also have to update the ES1 case summary and ES2 asset schedule. The updated ES1 and ES2 must be sent to the court at least seven days before the Final Hearing.

Though there is generally time for some negotiation on the day, the purpose of a Final Hearing is for the judge to listen to the evidence and arguments and to make binding financial orders following that.  Both you and your former partner will give oral evidence on oath relating to your financial position and other relevant circumstances.  You will be cross-examined by the other party or their legal representative and the judge may ask questions of you.  At the end of the hearing, having heard submissions (legal arguments) from both sides, read the documents and listened to the evidence, the judge will make a ruling and a final order as to how your assets are to be divided.  The judge may want to consider the case and give judgment at a later date.

The order is final and cannot be challenged, unless there are grounds for appeal.  You should take specialist legal advice from a Resolution member if you feel that you have grounds for appeal.