In June 2000, a new procedure was introduced aimed at simplifying financial disputes through the courts. Financial matters are referred to as ancillary relief in legal terminology. By providing a quicker format for husbands and wives to exchange financial details, it aims to create more agreements at an early stage. We outline the process below but full details are available in our Legal section.
When you can't agree
When all avenues leading to financial settlement have been exhausted and your solicitor has advised that the matter should be referred to court for consideration, an application has to be made to the court together with a fee. This can be made by either spouse. The court then prepares a timetable for the case and advises both of you how it will deal with the application. These procedures are known as directions.
'Let us never negotiate out of fear but let us never fear to negotiate.'
John F. Kennedy
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. 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 and this takes time.
File your paperwork
Try to keep on top of your paperwork and organise it in a proper folder or ring binder. Don't leave this task to the last minute as it may take quite some time to complete. Any delay here can cause complications, not to mention extra costs for the person causing the delay, and so this form must be treated very seriously indeed. It is central to the whole case. No other affidavits (sworn statements) can be filed without the express permission of the court.
The directions (court instructions) will normally contain a time limit for this form to be presented. A period of 28 days is generally allowed. There can be further directions meetings throughout the process.
You can both agree at any time
Remember, you can come to an agreement at any time during this process. This is a time when emotions are running high and it is so easy to get bogged down in small details. However important they may seem to you, you should focus on the big picture. Although there may be many upsetting financial details emerging, you should still strive to reach an agreement. After all, this is the aim of the judge and he won't want to waste time on trivial incidents or "fishing" for information.
Courts are expensive and have wide powers
Time spent in the court process is expensive. If you continue through the court process, this should take months to reach an outcome and, usually, never take longer than a year. But all cases are different and people behave in strange ways. So this time limit cannot be guaranteed. But beware, the court has power to make court orders to ensure that you act according to its directions and, if you default, the penalties can be serious. The court even has the power of imprisonment if you are in contempt.
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 decides whether, in his opinion, you are likely to agree a settlement. Some cases are agreed at this stage.
FDR - Financial Dispute Resolution appointment
If there is no agreement at this stage, a date will be given for a financial dispute resolution appointment. 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.
You may have employed a barrister to represent you at this stage. He uses his skills and fresh insight to suggest a new agreement. He really is the expert in these matters and, if your solicitor suggests employing one, then don't be put off by the hourly rate. He may save you time and money and when you remember to focus on the big picture, you could calculate the savings that his ideas may provide over many years.
'What does it profit a man if he shall gain the whole world and lose his own soul?'
The Gospel according to Saint Mark
The final hearing
Finally, if things still haven't been resolved, there will be a final hearing. You could also employ a barrister at this stage if you didn't use one before. Even at this late stage, it is not uncommon for an agreement to be reached, even at the doors to the court. Here the judge will hear evidence from both of you and then make his own decision about your finances. He will consider the issues in our previous article, bearing in mind, firstly, the needs of any children of the marriage and the reasonable needs of yourself and your spouse. The word to bear in mind is 'reasonable'.
For further information on this subject, please refer back to the Legal Process article which looks at this in more detail in our Legal section.
'The beginning is the most important part of the task.'