InsightsInsight - Family and Divorce - POSTED: July 14 2017
Financial proceedings arising from divorce or civil partnership dissolution
You can make an application to the family court to resolve financial disputes arising from divorce or civil partnership dissolution if you are either a spouse or a civil partner.
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Can I make an application to the court?
You can make an application to the family court to resolve financial disputes arising from divorce or civil partnership dissolution if you are either a spouse or a civil partner. The court now requires you to attend a family mediation information and assessment meeting known as a MIAM. The court may reject your application if you have not attended a MIAM unless one of the exemptions applies in your case. Such exemptions include where there is evidence of domestic violence.
How do I apply?
You must complete a court form called Form A and send this to the court with the appropriate court fee. The court will automatically set certain directions setting out what the parties must do before attending court. Usually the directions include the date of the first court hearing (also known as the FDA or first appointment), order that parties must complete the financial statement form called “Form E” and then two weeks before the first court appointment, direct that parties must each file with the court and with the other party standard documents as follows: – a statement setting out the issues in the case – a chronology of the important events – a questionnaire based on the other parties financial information – an additional form confirming if you would like the court to grant directions or if you would like to negotiate settlement (so the court can allocate sufficient time).
What happens at court?
The first court hearing is known as the First Appointment. If the First Appointment hearing is listed for directions only then the court will usually list your case for 30 minutes and the Judge will order further directions, which may include obtaining a pension report or answering questionnaires so that at the next court hearing you are ready to negotiate and you have all the financial information needed to have meaningful discussions about settlement. The court will then fix the second hearing known as the FDR (also known as First Dispute Resolution). The FDR hearing is usually the second time you will attend court. At court, providing you have all the financial information required to have discussions regarding settlement, you can discuss settlement with the other party.
The Judge will play an active role in trying to assist you to reach a settlement and, if appropriate, may give an indication as to how the case should settle. However, if you cannot agree with the other party then the Judge will provide further directions to prepare your case for a Final Hearing. If you do reach an agreement the court may make an order that same day to finalise the case. At the Final Hearing the court will decide on the outcome of your case after hearing evidence from you and the other party. Usually you will answer questions from both your solicitor and the other party’s solicitor. The Judge may also ask you questions. After hearing evidence your solicitor will summarise your case to the Judge and the other party’s solicitor will do the same.
The Judge will then give a Judgment and make a final order as to how the assets (property, pension) and income should be divided. There are a number of orders that the court can make, including a pension sharing order, property adjustment order (transferring the family home to one party), lump sum order (ordering one party to pay a lump sum either in one payment or by instalments), order spousal maintenance (one party to pay the other party maintenance each month).
How does the court decide?
The court’s first consideration is the welfare of any children involved. Section 25 of the Matrimonial Causes Act 1973 and Schedule 5 to the Civil Partnership Act 2004 sets out the principles as follows:
- each person’s income, earning capacity, property and other financial resources, available now or in the foreseeable future, including earning capacity
- each person’s financial needs, obligations and responsibilities relevant now or in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage
- each person’s age and the length of the marriage
- any physical or mental disability
- contributions made or likely in the foreseeable future to make to the welfare of the family, including any non-economic contribution
- the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; and
- the value of each of the parties to the marriage of any benefit which that party will lose the chance of acquiring.
The court will also factor in decisions of senior judges in important cases when looking at a particular aspect of your case.
Will I get my legal costs back?
The general rule is that each person pays their own legal costs however the court does have limited scope to consider ordering the other party to pay your costs. You should seek legal advice.
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