Going to Court (Litigation)

The Court process to decide how the finances will be settled is sometimes the best option for getting a financial settlement. Much will depend on your individual circumstances.  It is initiated by issuing a Form A. This can be filed by either party once divorce proceedings have been issued. It is filed with the form FM1. The filing of the Form A at court results in the matter being listed for a First Appointment hearing in 12 to 16 weeks’ time. There are consequential directions to the listing of the First Appointment as follows:

  • Detailed financial statements by way of Form E are to be completed and exchanged five weeks prior the First Appointment. The Form is a full account of every asset and every income stream over the last 12 months and going forward for 12 months. Documentary evidence is required including 12 months of statements for every account, property valuations and tax returns.
  • Once the Form E disclosure is made each party is invited to ask questions about the disclosure, going through it carefully to see where there might be missing information, information which doesn’t tally or information which indicates an unusual pattern of spending. This is presented by way of Questionnaire and this, together with a concise Statement of Issues and Chronology must be filed in the Court in advance of the First Appointment.
  • The First Appointment is used to define the issues in the case and help to save costs by asking a Judge to make further directions. These will usually deal with issues of disclosure and relate to additional disclosure and questions and/or the need to appoint experts such as tax experts.
  • At the end of the First Appointment (a very short hearing of less than 1 hour) the Judge will list the matter for a Financial Dispute Resolution hearing (FDR). In advance of this hearing the parties will be expected to set out to each other their ‘without prejudice’ offers.
  • The FDR hearing is an opportunity for the parties to reach a settlement. The Judge will not see any evidence but will identify the main issues and try and give an indication of what the outcome would be if the matter went to final hearing. The majority of cases settle at around this stage of proceedings.
  • If the matter cannot settle at the FDR (or around this time) then the matter will be listed for a final hearing. A final hearing will often last for 5 days (or more). Both parties will give oral evidence and the Judge will make a final decision.
  • It is usual for parties to start by trying to negotiate amicably with lawyers, in order to avoid the above court process. Sometimes, lawyers will agree a timetable for the exchange of information and for disclosure. However, where either party are slow to react or delay the process, either may apply to the Court to implement a timetable.
  • In cases where we anticipate there will be issues of reluctant disclosure it is sensible to start the financial remedy proceedings immediately.
  • It is very unusual and almost always unwise for parties to agree to a settlement without full disclosure. The process of obtaining the disclosure is part of the overall litigation tactic and where one party is reluctant it will be utilised to exert pressure on them. It is particularly helpful where one party has business interests and shareholdings in companies and does not wish to interrupt the day to day running of the business.
  • The position with respect to costs in that the Court will not usually make an order requiring one party to pay the costs of another but can do so at most stages of the proceedings (there are limited exceptions) if it considers it appropriate due to the conduct of a party in proceedings