Whether or not a couple decide to divorce immediately or after their decision to separate, there are nearly always negotiations dealing with the financial consequences of the breakdown of the relationship.
In the majority of cases, the parties agree a financial settlement without either of them having to issue an application to the Court.
In those cases, a draft order in the terms agreed is lodged with the Court following the decree nisi. Subject to the District Judge's approval, the arrangements are confirmed by a Court order within the divorce proceedings, making the agreement enforceable as a judgment of the Court. An example of such an agreement could be the payment of money by one spouse.
Where an agreement cannot be reached, or where one party is not prepared to disclose their financial details to the other, it is sometimes necessary to issue an application to the Court, known as an application for 'Ancillary Relief'.
However, even where an application has been issued, most cases are eventually resolved by a subsequent agreement between the parties at some point during the procedure described below. This removes the uncertainty of a trial and the associated expense.
The financial application formally begins with a statement of the types of claim which are being made. Normally, the Applicant includes every possible type of financial claim, even if they have no real intention of pursuing those claims. This is simply to ensure that the Applicant is not prevented from seeking a share of any assets that they might not be aware of when the claim is issued.
The Court will then fix a date for the First Appointment which the parties have to attend with their solicitor or barrister. Here, the Court will give Directions concerning the disclosure of any further relevant documents, witness statements, expert reports, and fix a further date for a second Financial Dispute Resolution appointment.
Prior to the First Appointment, the parties exchange a financial statement, known as 'Form E', giving details of their circumstances. There are a number of documents which have to be annexed to the Financial Statement which we would need to ask for.
You must annexe to your Financial Statement, where relevant to you, the following:
Once financial statements have been exchanged, neither party is entitled to any further disclosure from the other without permission of the Court. In order to obtain that permission, both parties file lists of questions that they would like the other party to answer and documents that they would like the other party to produce. As long as the Court regards the requests as reasonable the other party is directed to answer those questions and provide the documents.
In almost every case the other party seeks and is given permission to ask for credit card statements for the past 12 months. You should therefore expect to have to produce these following the First Appointment.
The Court is keen to minimise the need for experts, such as valuers, to attend Court, or at least give extensive oral evidence. The Court will try and control the use of experts, and narrow the areas of dispute where there is more than one expert involved in a case.
Whenever possible, the Court will expect a single expert to be jointly instructed and the costs shared.
The experts' overriding duty is to the Court and not to either party. The experts are independent and form an opinion based on their knowledge and belief.
Before the Court sets the matter down for a trial, both parties are required to attend a Financial Dispute Resolution (FDR) hearing.
This is largely an exercise in negotiations between the legal representatives, with a District Judge on hand to indicate whether their negotiating position is, in his or her view, reasonable or not.
In the unlikely event that the financial issues arising from your divorce have not been resolved as outlined above, the Court will set the matter down for trial.