At the same time as your divorce is being finalised you will need to deal with financial matters. If this can be agreed between you then this agreement can simply be set out in a Consent Order which is sent into Court and, once approved, sealed by the Judge.
But what if you can’t agree? If you have tried talking to each other, attending meditation or negotiating through your Solicitors without success then you may have to apply to the Court.
To make a financial application you complete a Form A which is filed with a Court fee (currently £210). The Court will list this for a First Directions Appointment approximately 8-10 weeks later. The Court will also send you and the other person a list of directions to be complied with before the Court date.
First of all you will have to prepare a sworn financial statement (a Form E) which is filed at Court and served on the other party approximately 4 weeks before the hearing. You then prepare a Questionnaire, a Chronology and a Statement of Issues. These are also all filed at Court and served on the other person.
You also complete a Form G which confirms whether you think the first hearing can be treated as a Financial Dispute Resolution Hearing and finally you should complete a Statement of Costs (Form H).
The first Court hearing to deal with finances within your Divorce is a Directions Appointment. This means that the Court will decide what needs to be done to move matters forward.
The Judge will usually decide by what date you should both reply to the questionnaires and may also decide that any property (for example the matrimonial home and any second property) should be valued by a Surveyor.
The Judge will also direct the Court office to list this matter for the second hearing (the Financial Dispute Resolution Hearing) and sometimes also for the Final Hearing.
It is always possible to reach an agreement at Court and it is sensible to allow some time both before and after the hearing for your Solicitor or Barrister to speak to your spouse's representative.
If you do not agree matters at Court then you will need to gather the information required to answer your questionnaire and comply with any other directions made by the Court. The court will send a typed copy of the Order made and also notice of the date of the next hearing(s).
Once both parties have replied to the questionnaires then your Solicitor will usually advise you in relation to making a proposal for settlement in writing. If your proposal is accepted then a Consent Order can be prepared and you may not need to return to Court.
The second Court hearing is called a Financial Dispute Resolution Hearing. As suggested this is an opportunity to see if the financial dispute can be resolved.
You will be told to attend Court an hour before the hearing in order that your legal representative can discuss matters with your spouse's representative and see if matters can be agreed. If an agreement is reached then a Consent Order will be prepared and can be sealed by the Court that day.
If an agreement can't be reached then you will go into Court and your representatives will put forward their cases. No evidence is given but your representative will summarise your position and explain what you are seeking. If either side has made a “Without Prejudice” offer then these will be shown to the Judge.
The Judge will have read all of the documents already filed and after hearing your representatives will indicate what he or she would order if this were a final hearing. There is no order made but this does mean that you will both hear what may well happen if this went to a final hearing.
This Judge is barred from hearing this case at a final hearing because he or she has seen the Without Prejudice correspondence.
If no agreement is reached either before or after the hearing then the case will proceed to a final hearing.
If no agreement can be reached then you will have a final Court hearing so that the Judge may hear evidence from both parties and make a decision as to how assets will be divided.
It is usual for both of you to have a Barrister as well as your Solicitor to represent you at Court at the Final Hearing. Their role is to speak to the other person's Barrister before the hearing and try to negotiate an agreement. If no agreement is reached then they will present your case to the Judge in Court, take your evidence by asking you questions in Court and cross-examine the other person.
The other person's Barrister will do the same and at the end both Barrister's will summarise the cases. The Judge will then decide what is to happen and will usually deliver a verbal Judgement at Court the same day. If there is not enough time for the Judge to do so or if the Judge feels that they need to consider matters then they may reserve Judgement and call you back another day to tell you what is to happen. This may be the next day or it may be a few days or weeks later.
Once the Judge makes a decision then an Order is made and is legally binding upon both of you.
You have reached the last Court hearing and the Judge has made a final Order. But what can you do if you are unhappy with this decision?
You must be clear that you cannot file an appeal just because you do not like the decision reached by the Judge. Judge's have a very wide discretion within which they may make a decision and simply not liking it is not enough.
You may only appeal if the Judge has made a mistake in law or has gone outside the discretion available to them. It is sensible to seek the advice of your Barrister (through your Solicitor) first as to whether either of these is applicable.
If you are advised that an appeal is possible (and sensible in the circumstances) then you must act quickly as it must be filed within 14 days of the date of the Order (with a fee). The appeal is from the district judge (who made the original decision) to a circuit judge. If you miss the 14 day deadline you must apply to a circuit judge for leave to appeal.
The appeal is limited to a review of the Order unless the judge considers that a retrial is necessary. Fresh evidence may only be admitted at the discretion of the circuit judge if it is in the interests of justice to do so.