Finalising financial settlements using the court process

If one of the parties is not willing to provide voluntary disclosure or negotiate, or progress is not being made, or where it is clear that court proceedings will provide a structure and time table which is needed, then provided a divorce petition has been issued, either party is entitled to apply to the court for a financial settlement.

The court however requires that before issuing an application that each party, except in certain specified circumstances, gives full consideration as to whether mediation or other forms of alternative dispute resolution may be suitable for them and attends an assessment meeting with a mediator, either on their own, or with their spouse or partner to find out more about the mediation process. The court has issued a “Pre-Application Protocol” setting out what is required. For more information please see the mediation and assessment meetings article in Resources.

On receipt of the application the court will impose a strict timetable for the case. If one party fails to comply with the court timetable, then the judge may order that they pay the other party’s costs.

The court timetable has three stages:

  1. First Appointment
  2. Financial Dispute Resolution Appointment (“FDRA”)
  3. Final Hearing

First Appointment

This will be scheduled by the court about 12-16 weeks after an application is made. The First Appointment is the first occasion when the parties and their legal representatives meet with a judge at the court. The First Appointment is an administrative appointment. Its purpose is to define the issues in the case and endeavour to save costs by the judge giving directions as to what needs to be done to prepare the case properly, so that negotiations can take place.

Various documents have to be prepared, filed at court and exchanged with the other party before the First Appointment. The first document is a sworn Form E. The court will make an order as to exactly when the parties have to file and exchange their Forms E by. This will be at least 35 days before the First Appointment, so there is time for them to be considered.

At least 14 days before the First Appointment the court will set a date when four separate documents have to be filed at court and exchanged namely:

  1. A concise Statement of the Issues in the case
  2. A Chronology ( giving a list of significant dates)
  3. A Questionnaire setting out any further information and documents sought from the other party
  4. A form indicating whether you will be in a position to proceed at the First Appointment with an FDR (Financial Dispute Resolution Appointment)

Both parties also have to file at court in readiness for the First Appointment a schedule setting out an up-to-date estimate of their legal costs.

In some cases where the parties are ready and have enough information, it is possible to request that the First Appointment also be treated as a Financial Dispute Resolution Appointment (“FDRA”) .

At the First Appointment the type of directions the District Judge might make are :

  1. to order that a joint valuer be appointed if the parties can not agree on the valuation of a property and/or other asset and
  2. to order that both parties provide answers to appropriate questions in the other’s questionnaire and
  3. whether any further evidence needs to be filed by either party.

If it has not been possible to treat the First Appointment as an FDRA, the Judge will then set a date when the FDRA will take place.

The Financial Dispute Resolution Appointment (FDRA)

This is a meeting at the court between the parties, their legal representatives and the judge, for the purposes of discussion and negotiation with a view to seeing whether a settlement can be reached.

The parties are required to approach this occasion openly and without reserve. The parties are each expected to make offers and proposals in advance of the FDR and to give proper consideration to any offer or proposal put to them. The judge will give his/her input about the case.

Evidence of anything said at an FDRA is not admissible in evidence at a later date. The judge who conducts the FDR then disqualifies his or herself from dealing with the case in the future.

Fourteen days before the FDRA, the applicant in the case has to file with the court details of all offers, proposals made and received in the case (including those which are off the record (“without prejudice”) so the judge can consider them.

Many cases settle at, or shortly after the FDRA appointment. If however no agreement is reached at the FDRA, the judge will make any further directions needed for the filing of evidence and list the case for a final hearing.

Final Hearing

A judge will hear evidence from the parties, submissions from the legal representatives and then make a decision as to the outcome of the case. Prior to the final hearing the parties can still make offers with a view to continuing to try to settle the case and avoid the cost of a final hearing.

The general rule with regard to costs is that the court will not make an order requiring one party to pay the costs of another at the final hearing. In short, each party is left to pay their own costs. The court may make an order that one party pay the costs of another, where it considers it is appropriate to do so because of the conduct of a party in the proceedings.

In preparation for a final hearing all disclosure is updated and an indexed and paginated bundle of all the relevant documents in the case has to be prepared.