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What happens when I have made an application to court for a financial remedy order?


Step 1. Filing documents at Court

When the court receive your application to issue financial remedy proceedings, a timetable is set by the court and sent to both parties solicitors or directly to the a party if they choose not to have legal representation.  This is called a Notice of Proceedings and will specify when documents must be filed with the court and exchanged.  It will set out the date and time for the First Directions Appointment.

The first document that has to be filed at court is a Form E.  This is a lengthy and important document which details income, assets, business interests, liabilities and pensions.  The court will set a date by which time the parties have to simultaneously exchange Form’s.

When Form E’s have been exchanged, each party can raise a questionnaire in which they can ask questions about any of the information contained in the other party’s Form E and ask for further information if they believe any assets or relevant information has not been disclosed or explained adequately. If there is a dispute about any questions that are raised in a questionnaire, the Judge can be asked to make directions on the issues at the First Directions Appointment.

 

Step 2.    The First court hearing – Known as the First Directions Appointment or FDA

This is usually a short hearing, the purpose of which is to establish whether any further documents should be filed, for example: Replies to questionnaires,  valuations of assets, pension reports and anything else that may be required to progress negotiations or to assist  the court to adjudicate in the case.  The Judge will give directions telling the parties what they must do next and by what dates. 

Because the majority of hearings are now virtual, the court encourages parties and  their solicitors to try and agree directions in advance of the FDA.  This saves court time and avoids any misunderstandings which could be caused by technical problems which are often an issue.  It may well be the case that by the time the court process your application and list it for the FDA the family courts will have opened up and your physical attendance may be required at court, although this in reality is unlikely to happen in the near future due to the immense backlog of work that the courts are dealing with.  If directions can be agreed in advance, solicitors will draft an order, submit it to court and simply ask the Judge to approve and seal it.  This can save significant legal costs.

 

 

Step 3.  Second court hearing  - Financial Dispute Resolution – Known as FDR

The purpose of this hearing is to encourage the parties to settle without the need for a final hearing.  The FDR hearing should take place approximately eight weeks after the FDA hearing but in the current Covid Climate the courts are in in some cases taking months to list these appointments.   Both parties must attend this hearing.  The court direct that parties and their legal advisors  are at court one hour before the hearing is listed to start so that negotiations can take place.  It is often the case that barristers will be instructed to represent the parties on FDR appointments.

You do not have not have to give evidence at this hearing.  The Judge will hear legal submissions from both parties’ legal advisors and in most cases the Judge will give an indication of the type of financial order the court would be likely to make if the matter cannot be settled and has to proceed to a final hearing.  At this stage the Judge will ask the parties and their legal advisors to leave the courtroom to continue negotiations bearing in mind what the Judge has said.  If a settlement can be agreed, the legal advisors will draft an order recording the agreement and ask the Judge to approve the terms and make a consent order.  A consent order is legally binding and can be enforced by the court.

If no agreement can be reached, the matter will proceed to a final hearing.  This hearing cannot be listed before the same Judge who dealt with the FDR.  This means that the Judge who hears the final hearing may have a completely different view as how your assets should be divided so you cannot assume that the outcome will resemble the views of the previous Judge.

 

Step 4.   The Final Hearing

The final hearing is the time when you will be asked to give evidence.  Legal representations are made on both sides and a final decision is made by the Judge.  Depending on the complexity of the case a hearing can take anything from half a day to two days.   You should always bear in mind that a Judge could impose an agreement that you may not have hoped for.

The costs incurred by a matter proceeding to a final hearing are substantial and can make a massive dent in the assets available for splitting between the parties.  It  has to be said that throughout your proceedings every attempt should be made to try and reach an agreement without having to ask the court to impose a settlement that you may be happy with.

 

Added: 29 Jul 2021 14:52


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