Guide to Financial Settlements
If you have tried but failed to reach a financial settlement with your spouse and your solicitor has advised that the matter should be referred to court, an application has to be made to the court. This can be made by either you or your spouse by completing Form A and is the application to start the court procedure.
First Court Appointment (FDA)
The court then sets the date of the First Appointment (FDA) and the dates for the filing and exchange of Form E as well as the dates for the exchange of other documents. These procedures are known as Directions. The FDA is usually scheduled 12 weeks after your divorce application has been filed.
Both you and your spouse then have to exchange a form known as Form E at the same time. This is also presented to the court. This can be about twenty pages in length. Form E is very important and must be treated seriously; it is central to the whole case. You will have to fill in details relating to your financial circumstances, including details relating to your personal pensions, the value of the family home and any other properties, details of salary and bank statements. Also, you may have to have a professional valuation of a property done. The directions (court instructions) will normally contain a time limit for this form to be completed. A period of 28 days is generally allowed. There can be further directions meetings throughout the process. Other documentation required will include:
- Concise statement of issues;
- Dates of the issues;
- Form G: explores the possibility of using the First Appointment as a Financial Dispute Resolution (FDR);
- Form H – estimate of costs
If at this stage no agreement has been reached, there will be a First Hearing. The judge will look at the issues involved in your case and decide whether, in his opinion, you are likely to agree a settlement. Some cases are agreed at this stage.
Financial Dispute Resolution Appointment (FDR)
If there is no agreement at this stage, a date will be given for a Financial Dispute Resolution Appointment (FDR). This meeting is to discuss what type of settlement you are each looking for and, again, the aim is for you to reach a voluntary agreement. Before this meeting, questionnaires, proposals for settlement and cost estimates have to be completed and filed. At the meeting, the District Judge will provide guidance towards a settlement by exploring common ground, dispelling any unrealistic expectations and encourage both parties to reach a settlement. The majority of financial cases settle at this point.
The Final Hearing
Finally, if things still haven’t been resolved, there will be a Final Hearing. Even at this late stage, it is not uncommon for an agreement to be reached, even at the doors to the court. In advance of this hearing, there is the following preparation:
- Papers for the court prepared and filed;
- Barristers briefed and matters discussed in confidence with yourself;
- Open proposals filed and served;
- Detailed cost estimates filed ( Form H1)
Here the judge will hear evidence from both of you and then make his own decision about your finances. He will consider the issues bearing in mind, firstly, the needs of any children of the marriage and the reasonable needs of yourself and your spouse. After listening to the evidence, the judge will then grant orders. The final court order, will usually deal with capital, maintenance and pensions. An order about capital will generally be final, and unchangeable. An order about maintenance can sometimes be varied later if circumstances change. As part of the final order there may be provision for a property to be sold or transferred.
Types of Court Order
Maintenance for the husband or wife (or spousal maintenance)
One spouse is ordered to pay a sum of money to the other regularly. The length of time for which the maintenance is paid can vary; a fixed period or for the rest of your lives. The recipient will give up their right to the maintenance if they remarry. This sort of maintenance is ordered if the less well-off of the parties is unable to support themselves financially. The actual sum of money to be paid depends on factors such as the needs and earning ability of the recipient.
Similarly to spousal maintenance, money can be ordered to be paid from one spouse to the other in one payment, i.e. a lump sum. The advantage of this is that it gives the couple a ‘clean break’, allowing them to become financially independent and enabling them to draw a line under their time together.
Maintenance for the children
Child maintenance can be arranged privately between the divorced couple, or the Child Support Agency can be enlisted to formulate an arrangement.
Transfer of property order
All types of property can be ordered to be sold or transferred by the court. This most commonly applies to the family home. The court also has the authority to decree how the proceeds should be divided after a sale of property.
Courts also have the power to divide pension policies between the two parties. Alternatively, the wife may be given a larger share of the marital assets or a lump sum to compensate or ‘offset’ her loss of interest in her husband’s pension.