One of the most stressful aspects of divorce proceedings is trying to divide the family assets between both parties. Any distribution made should fair and proportionate.
The following information is a basic outline of the court procedure used to achieve a financial settlement in a divorce and what factors are taken into consideration when this is accomplished.
Taking the case before a court
Parties will need to have obtained all the relevant financial information from each other prior to taking the case before a court. If this has not happened then either party can apply for ‘Ancillary Relief’. Ancillary relief is the formal process of gathering and presenting all the necessary information required pre to a court hearing. The following procedure is normally used:
– The applicant for ancillary relief sends a notice to the court indicating what claim is being made.
– The court then books the case a first hearing within 6 to 12 weeks of the application.
– 5 weeks before the first hearing both parties must have completed Form E (a court document showing details of their financial information) and sent this to each other. A copy of this form must also be sent to the court.
– At least 2 weeks prior to the first hearing both parties must provide each other with the following documentation; a list of what they consider to be the key issues, a timetabled history of the case and a questionnaire detailing any further financial information that they require from the opposing party.
The first hearing
The initial hearing of the case is in a court before a judge. This usually takes about 30 minutes and the point is to discover where there are potential grounds for settlement. The procedure is instigated via the completion of Form A (this form informs the court that you require a judge to decide how to divide your matrimonial assets) a fee of £210 is paid with this form. If the ancillary relief procedure has been used then the court will begin by checking the reasonableness of the requests of each party contained in the pre hearing questionnaire. The judge will move the case along by looking at the all the information provided. At this point the court may feel that some vital information is still outstanding, if so, the judge will instruct either party to go away and come back with the appropriate information or documentation. For example you may be requested to produce a valuation of your matrimonial home.
At the end of the hearing the court may order an appointment to be made for financial dispute resolution.
Financial dispute resolution
Unlike other forms of dispute resolution, this process is still heard in front of a judge. It is however a more informal procedure than being in a court hearing. Solicitors from both parties will present brief details of the case to the judge. He/she will suggest ideas for settlement which will include dividing family assets fairly. If the parties reach a financial agreement at this point then the case will be stayed from moving to a final hearing, this saves both parties further time and costs.
Not all cases can be heard in this way. If the judge feels that the details of the case are too complex and therefore not appropriate for financial dispute resolution then he/she will recommend that the case move straight to a final hearing.
A final hearing is a last resort if no amicable settlement can been reached. At this point you will have to ensure that you have a solicitor or Barrister to represent you in court (note this will normally mean considerable additional costs). A final hearing normally takes place 4 to 6 months after the initial Form A was completed.
The final hearing is a formal court procedure lasting up to 2 days and will be heard by a different judge than was present at any financial dispute resolution. Each party will be under oath and cross-examined by the opposition’s counsel. The court will take a detailed look at all the financial evidence provided and will pose questions concerning your individual financial affairs, for example; anything from your earning capacity to your household bills.
At the end of the hearing the judge will deliberate on the facts and produce a final order. This type of settlement is a compromise and realistically never really gives both parties what they want.
What financial information does the court consider?
In dividing assets between both parties the court will consider the following financial factors:
– The current income and future earning capacity of both parties;
– Any financial resources each party has access to or is likely to in the foreseeable future;
– Any property owned;
– Any personal pension;
– The financial needs, obligations and responsibilities of each party. In particular contributions needed for the care and welfare of any children involved;
– The standard of living experienced by both parties as a couple prior to the marriage breakdown;
– The age of each party and the duration of their marriage;
– Any physical or mental disability or registered illness of either party; and
– Any significant conduct issues (worthy of court consideration).
Divorce is always highly stressful and most people, sadly, find that after divorce, their standard of living suffers. Simply put it is much more expensive to run two households than one. It is therefore particularly important that anyone considering a divorce should appoint a specialist divorce solicitor.
To help limit the risk of a financially damaging financial divorce settlement and to clearly set out expectations, many couples getting married, do so after signing a prenuptial agreement. If you are thinking of entering into a prenuptial agreement – make sure you consult a specialist prenuptial agreement.