It is no secret that going to Court can feel like a daunting and stressful process for divorcing spouses. For many, dealing with the matrimonial finances upon divorce will be their first experience of stepping foot into a Court building in their lives, which can be a difficult undertaking.
Going to Court should always be the last resort, as settling outside of Court can prove to be far less expensive. However, it is clear from recent divorce statistics and the ever-increasing Court backlogs that, for many, initiating Financial Remedy proceedings is simply unavoidable. This can be for a multitude of reasons, such as if one spouse feels that they are unable to reach a fair settlement outside of Court, as they believe that the other spouse is not being forthcoming about their assets, meaning that an informed and fair division of the assets is therefore impossible.
The Court process is therefore a useful investigative tool to ensure that the finances are dealt with fairly, and in accordance with each spouse’s individual needs. This does not diminish the fact that going to Court can still make some spouses feel fearful at a time in their lives which is particularly emotionally charged and complicated. If you are worried about what to expect throughout the Financial Remedy process, what to expect from Judges or how to behave at Court, then consider the below;
The Financial Remedy process
If a financial settlement is unachievable outside of Court, then spouses can initiate Financial Remedy proceedings within divorce proceedings by submitting a “Form A”, which is the application to begin financial proceedings. Prior to doing this, the Applicant must attend a Mediation Information and Assessment Meeting, or MIAM for short. There are thousands of independent Mediators across the UK who can provide this service for an economical fee and provide a MIAM certificate. This certificate proves to the Court that the Applicant has considered the benefits of mediation and has still chosen to initiate proceedings.
Once Financial Remedy proceedings have been initiated, the case will be listed for a First Directions Appointment (FDA), prior to which, the Court will require both parties to exchange full and frank financial disclosure. This is when all of the assets and liabilities of the marriage are set out to the Court. If asset values cannot be agreed after exchange of financial disclosure, then the Court are likely to require the instruction of independent experts to value specific assets. The FDA will set out a general framework for the progression of the case and will provide a timetable for matters to progress.
After the FDA, a further hearing is required, called a Financial Dispute Resolution Appointment (FDR). This is a hearing which is often referred to as “Judge-led mediation” and is a chance for parties to make arguments to the Court about how the finances should be distributed upon divorce. The Judge will then provide an “indication” as to how they would deal with a case if they were the Judge at the Final Hearing. All of the discussions and indications at the FDR are on a “without prejudice” basis meaning that, if matters cannot be agreed and have to proceed to a Final Hearing, then the Judge at the Final Hearing will be unaware of any offers made at the FDR. This encourages parties to negotiate as the FDR is very much a forum for negotiation. The FDR Judge is not allowed to be the same Judge as the Final Hearing Judge, as it is hoped that by receiving this indication, the parties will have a realistic view of how matters would turn out at the Final Hearing and can therefore settle the case prior to this. Most cases will settle at the FDR, as the cost of going to a Final Hearing can often prove disproportionate to the size of the marital assets which are in dispute.
At a Final Hearing, the Judge will hear arguments made by the parties, or their legal representatives if they have instructed a solicitor or barrister. The Judge may require evidence from the parties to make a determination regarding matters in dispute. This is when parties may be called to a witness stand, where they may be cross-examined and challenged on their evidence by the other side. After hearing the initial submissions and all of the evidence, the Court will give a Judgment and Final Order which will be legally binding and enforceable. This will finalise the Financial Remedy proceedings and enable the divorce to conclude.
This entire process can take anywhere between 6-12 months from start to finish, but may take longer if there are complex arguments made (for example, regarding business interests) or if there are sizeable assets in dispute.
How will Judges deal with a case?
Judges are required to deal with all cases with fairness and with strict adherence to legislation and judicial rules. Whilst Judges have a fairly wide discretion to make Financial Remedy decisions (allowing greater flexibility to deal with complex cases), they must exercise their discretion in line with strict rules. Primarily, they must consider the welfare of any children under the age of 18. They must also have regard to a list of considerations under Section 25 of the Matrimonial Causes Act 1973. A full list of these criteria can be found HERE.
How to behave at Court
Parties must always behave with courtesy and must act in good faith, both inside Court and throughout proceedings generally. You must take great care not to mislead the Court in any way and must adhere to any deadlines which the Court sets throughout proceedings. You may find that you do not speak at any point in Court hearings, except for when giving evidence at a Final Hearing. This is of course, assuming that legal representatives are instructed. This may be comforting to parties who are particularly anxious about having to make arguments at Court, especially when there are allegations of abuse throughout the relationship. It should be noted that special measures can be requested from the Court to ensure that parties feel comfortable and safe in Court, if such allegations are raised.
Author: Owen Day