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. 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.
This page sets out (a) the orders the Court can make (b) where legal advice can be obtained (c) how to make a financial application and (d) the court process.
The orders the court can make
The types of orders the court can make are:
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 Decree Absolute and Interim Maintenance if paid after Decree Absolute but before the Court makes a final financial order.
Often known as spousal maintenance. 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 (i.e. five years, ten years etc), and that ‘term’ can be either extendable or non-extendable, or for the parties’ ‘joint lives’ (i.e. 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.
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 are 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 are 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 (i.e. you have been a victim of domestic abuse). You can find a Resolution accredited mediator here: https://resolution.org.uk/find-a-law-professional/http://www.resolution.org.uk/membersearch.asp?page_id=44
- If you cannot resolve the dispute in mediation, you will need to download and complete the application form (Form A) which can be found here https://www.gov.uk/government/publications/form-a-notice-of-intention-to-proceed-with-an-application-for-a-financial-order. There is a page that will need to be signed by the Mediator who conducted your MIAM. You should make 3 copies of the form.
- You should send three copies of your application to the Court dealing with the divorce or civil partnership proceedings. If that is not your local court, the proceedings will be transferred to your local family court once the application is issued.
- The court fee to make the application is £255. You can pay this by cheque made payable to HMCTS or by card payment (you will need to call the divorce 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, if appropriate send them to your local family court. You should receive notice of this. The Court will then process the paperwork and fix an initial hearing date know as a ‘First Directions Appointment’ and send out a court timetable to both parties setting out the steps that must be taken in the lead up to the First Directions 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 (a) any mortgage company who have a mortgage over the property (b) any trustees of a trust that you are seeking a variation of and (c) 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. You can download the form and notes for guidance from here: https://www.gov.uk/government/publications/form-e-financial-statement-for-a-financial-order-matrimonial-causes-act-1973-civil-partnership-act-2004-for-financial-relief-after-an-overseas.
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 must be as up to date and accurate as possible. It is a very important document. 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 it 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 spouse or civil 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 spouse, civil 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 spouse, civil partner or their lawyer will be set out in the Court order informing you of the First Directions Appointment.
Step 2: First Appointment Documents
After you have exchanged Forms E there are various documents that need to be produced before the First Directions Appointment. They are called the ‘First Appointment Documents’ and are:-
- A questionnaire, setting out any and all 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 snap shot of the relevant history
- A standard form called Form G, used to tell the court whether you can use the First Directions 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 spouse, civil partner or their lawyers by that date.
When you receive your spouse or civil 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.
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.
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 an FDR (see below) and give your reasons why.
Step 3: The First Directions Appointment (“FDA”)
The Court will usually timetable the FDA on a date approximately 12 to 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 the FDA is to give ‘directions’ to progress the case, i.e. 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 FDA there are two further tasks that will need to be completed:
- A folder of the key documents should be prepared for the Judge (called a ‘Bundle’). If your spouse or civil 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.
- At least one day before the FDA 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: https://www.gov.uk/government/publications/form-h-estimate-of-costs-financial-remedy.
The procedure at the FDA is relatively straightforward. Before you go in to see the Judge you will have the opportunity to talk to the other party, or their lawyers if they have representation, about what ‘directions’ are required to progress the case. 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 FDA, 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). Details, and a searchable list of Direct Access barristers, can be found here: https://www.barcouncil.org.uk/bar-council-services/for-the-public/direct-access-portal.html
In cases where there has been adequate financial disclosure by the time of the FDA, it may be possible, with joint agreement, to ask the court to treat the FDA as a financial dispute resolution (FDR) hearing.
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.
Unless the parties have used the FDA as an FDR, the Court will almost always timetable an FDR hearing at the FDA. The FDR typically takes place 6 to 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 FDA and the timetable for dealing with those directions. Before the FDR, the parties will have to prepare a Bundle and a costs estimate (as with the FDA).
You will usually be asked to attend Court around 1 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 child care 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. 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 advisors (if instructed) or by the Judge.
As with the FDA, 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.
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.
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) several weeks (or even 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 which can be found here: https://www.gov.uk/government/publications/give-a-statement-of-costs-for-a-financial-remedy-divorce-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).
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 spouse or civil 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.