Court proceedings are generally seen as a last resort when all other options of dispute resolution have failed. If mediation has either been tried and was unsuccessful or was unable to take place for some reason e.g. Domestic Abuse, then an application can be made for your case to be heard at a family court, where they will make a decision on the matter on your behalf. Family Courts can hear cases pertaining to what happens to the children after a couple have separated and/or the financial elements involved in the separation.
What happens when I make an application to the Family Court?
When making an application to the court to hear matters of a financial nature then the party seeking the courts intervention must submit a Form A and pay the court fee to the court that will be dealing with the divorce and can be sent at any time after the divorce petition has been filed. Once this has been received by the courts, they will then issue proceedings and notify your ex-partner.
What is a Form E?
Once this has been done, the court requires both parties to fill out a Form E (sometimes referred to as financial disclosure). This is a long financial statement and details about all of your assets must be disclosed. This includes all properties or property shares, pensions, investments, valuable items, bank accounts etc. and all documents pertaining to these assets. The completed Form E from both yourself and your ex-partner must be sent to the court at least 35 days before the first court hearing is due to take place.
Because the Form E is so comprehensive, it not only ensures that the court making the decision has all of the information regarding assets but also that the decisions made are fair, but also provides total transparency for both parties to see exactly what the other one has got in the hope that a settlement can be negotiated prior to a full hearing. Everything must be disclosed in the Form E as this is an official court document and therefore failure to disclose any assets could result in you being in contempt of court. If this were to happen then you could be faced with imprisonment or a very large fine as well as all of the court costs.
What is a First Directions Appointment (FDA)?
After the Form A was received by the court, then a First Directions Appointment (FDA) would have been made; usually between 12-16 weeks in order to give time for the Form E to be completed and returned to the court also. It is hoped in the FDA, that the issues surrounding the parties can be defined, helped by the Form E’s and what the parties have put on those to see where there are disagreements and potentially how these disagreements can be resolved. An example of this would be disagreements over the value of something i.e. a property or object, in which case the court may order the appointment of a joint valuer.
The FDA, if both of the parties agree, can be used as a platform for further negotiation between them and sometimes an agreement can be reached at this hearing preventing any further involvement of the courts. If this is not an option or does not happen, then the parties involved will also be able to raise a questionnaire where they feel that documents or information may be missing. The court then makes directions as to what more needs to be provided in terms of documentation or information regarding these questions and set a date by which a response must be made in relation to these queries.
If the court has ordered that a questionnaire is to be completed in the FDA, it means that they feel there are gaps within the Form E or that insufficient information has been provided to ensure that it is a fair process for both parties. Once both parties have done this and the replies have been exchanged with both of the individuals involved, then there is still at this point the opportunity to negotiate and reach an agreement without going back to court.
What happens if negotiations have failed?
If any agreements up until this point have failed to be reached then a Financial Dispute Resolution Hearing (FDR) takes place. This allows both parties to openly discuss matters and negotiate further with the assistance of the judge. The court will have all of the financial disclosures of the parties as well as any settlement offers that have already been made. As the judge has all of the information at their disposal at this point, they are often able to indicate the likely outcome at a final hearing. This is obviously not binding in any way but can be helpful to the parties to have this independent view of the case at this stage and help the parties to reach an agreement of their own accord.
All negotiations at this point are ‘Without Prejudice’ meaning that they cannot be referred to any way if an agreement is not reached and it is required to go to a Final Hearing. Likewise, the judge present at the FDR cannot sit at the Final Hearing. If an agreement is reached at this stage then the judge is able to endorse it and make any agreements reached, into a legally binding order.
In cases where they have not been able to settle either at or prior to the FDR, then a Final Hearing must take place where the judge will make the decision on behalf of the individuals involved. During this hearing, both parties have to give evidence under oath and questions are posed to them from the opposite sides legal team. Having considered the evidence presented then the judge will make their decision and an order will be made. The order can pertain to a number of things including property transfer, sale of property and valuable items, lump sum payments, pension divisions and maintenance for an ex-partner etc.
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