In some cases mediation or collaborative practice may not be suitable or they may have been tried and failed.

In these circumstances it is usual for both parties to instruct independent solicitors. When we are instructed upon this basis we always try to negotiate a settlement for you without going straight to court. Sometimes this isn’t possible, maybe because one party will not provide full disclosure of their finances on a voluntary basis, maybe or something urgent happens, or negotiations may break down.

In these circumstances an application to the court will be necessary so a judge can decide what a fair settlement should be. The procedure for this is as follows:-

1. Lodging the Application

By this stage, the divorce petition will have been issued and served. Although the petition contains the application for financial relief, the proceedings are ‘activated’ by issuing a Form A at court. A fee of £210 is also payable. The party who lodged the Form is called the Applicant and the other party the Respondent.

2. Procedure leading up to the first court hearing

Once the Form A has been lodged with the court, the court is required to fix a hearing not less than 12 weeks and not more than 16 weeks ahead. A notice in Form C is sent to both parties to advise them of the court timetable. That timetable will refer to the date for the first hearing.

In the weeks before the first hearing, you must collate a considerable amount of information regarding your own finances. You must also consider, where possible, what you realistically want to achieve out of a settlement, for example in relation to the marital home.

You will have to complete, file at court and exchange a financial statement called a Form E. This has to be done at least 35 days before the hearing. This is a lengthy document and requires amongst other information, details of your financial resources, liabilities, investments and employment. Certain documentation must also be attached to the Form E such as your bank statements and payslips.

At least 14 days before the first hearing, each party must file with the court and serve on the other party a concise statement of the issues between the parties, a chronology and a questionnaire setting out any further information required. Either party can also file a Form G stating whether they will be in a position at the hearing to negotiate and treat the appointment as a Financial Dispute Resolution hearing.

3. At the first hearing

The objective of the first hearing is to define and narrow the issues in dispute. Both parties must attend, although you will not normally be required to speak in court. The District Judge, having read the documents filed, will determine the extent to which each party’s questionnaires are reasonable. The court may refuse certain requests on the grounds of proportionality. The District Judge will give directions about the valuation of assets, the obtaining and exchanging of expert evidence and directions about any further evidence to be adduced. A date will also be given for the next hearing called a Financial Dispute Resolution Hearing (FDR).

4. Financial dispute resolution hearing (FDR)

In addition to complying with any directions given at the first hearing, both parties have to file with the court 7 days before the FDR, details of all offers and any responses to them.

The hearing is conducted on a privileged basis so that the parties may have the reassurance that all discussions and negotiations will not be repeated at a final hearing. The District Judge will attempt to help you reach a realistic compromise by providing an indication of how the court would deal with a particular issue. At this stage negotiations are encouraged.

If a settlement can be achieved, the details will be embodied in a document called a Consent Order. If it cannot, the details of all offers and responses are removed from the court file and a date is set for the final hearing.

5. Final hearing

The applicant (the person who filed the Form A) must file and serve on the other side an open statement at least 14 days before the final hearing. This is an ‘open proposal’ and must contain all issues in dispute and details of the orders you will be asking the court to make. The other side must, within 7 days, file their open statement.

Before the hearing, a form called a Form H, which sets out the costs incurred, will also be filed with the court and sent to the other party.

The final hearing will be held in the District Judge’s Chambers and will be in private. In most cases a barrister is instructed to perform the advocacy.

The District Judge will hear the case and then make an order and provide his/her reasoning for the decision reached.

6. Costs

In family matters, each party generally bears his or her own costs unless there is clear evidence that one party has acted unreasonably during negotiations. Costs can escalate very quickly and it is important to regularly review costs. The court will also keep a close eye on the level of costs being incurred by requesting information about the costs at each stage of the proceedings.

7. The principles the court considers

The focus for the court will be achieving a fair settlement which depends on the individual circumstances of each case. The main piece of legislation in this area is the Matrimonial Causes Act 1973 which sets out the facts to be considered in deciding what is fair –

• The welfare of a child of a family
• Income, earning capacity, property and resources of each person
• Financial needs, obligations and responsibilities of each person
• Standard of living enjoyed by the family before the breakdown of a marriage.
• The age of each person and the duration of a marriage
• Any physical or mental disability
• The contribution made by each person to the welfare of the family, including looking after the home and brining up children
• The conduct of each person, but only if it is so bad it would be unfair to ignore it and;
• Any serious disadvantage to either person which would be caused by ending the marriage.

Any children will be the court's paramount consideration.

If we can help you with any of these issues, please call to speak with Rachael Smethurst, the head of our family team, on 01865 781181, or email.