Windsor Solicitor - Financial Division, Divorce, Prenuptuals, Wills, Inheritance, Family Law, Pensions, Employment Law, Estate Planning and Civil Litigation

Financial Division

This application is made to distribute the marriage assets, whatever and wherever they may be. They are categorised as:

Maintenance for you and/or the Children
Lump Sum– a capital payment
Property Adjustment order – a sale or transfer of a home or life policies etc
Pension Sharing or Attachments

Application

This is referred to as Ancillary Relief because it is made ancillary to the main divorce petition and the applicant asks the court to grant specific financial relief.

Either party, Petitioner or Respondent, may serve a Notice of Application for Ancillary Relief by completing a ‘Form A’.

The application can not be made until after the Petition for divorce has been filed.

Attempting Settlements

Attempts to settle matters can be made by either party in an effort to resolve matters outside of Court at any time. This can be done between the parties direct, through formal mediation and/or with the assistance of solicitors. This is difficult to do however until the assets f both parties are fully disclosed. The proposals to settle are made between parties on a "without prejudice" basis. If agreement is achieved, a Consent Order is prepared recording the terms of the settlement. It is signed by both parties and a brief financial details form is completed (Form D81) and these documents are lodged at court to be sealed and any pending Court Hearings cancelled.

This attempt to settle can also be made at any time within the proceedings and indeed even before proceedings have even started.

If, for whatever reason, a settlement cannot be reached early, then the following financial procedure must be followed:

Pre-Action Protocol

Since 6th April 2011 the Family Protocol Rules require all financial remedies to commence by following a pre-action protocol.

This pre-action protocol requires that a Family Mediator is used to attend a Mediation, Information & Assessment Meeting.

The Mediator will make contact with the parties following initial contact.

Mediators will assist in resolving the matter OR
Form FM1 is completed to file with the Court declaring that the Assessment Meeting has been attended OR that mediation has not been suitable

Failure to follow the Pre-Action Protocol may result in the Court make a Costs Order against the Applicant.

Notice of Directions and Hearing

The court sends a copy of the financial application to the other party and sends directions to prepare for the case to both parties, together with notice of a hearing date for both parties to attend court. This is called the First Appointment.

The court requires the various directions to be complied with such as exchange of Financial Statements (Form E) and related disclosure before the First Appointment.

The steps directed by the court to be completed before the First Appointment are:

Financial Statements
Both parties must complete a Financial Statement known as the Form E. This must detail all assets, liabilities, income and state the party’s capital needs. The form must exhibit certain financial documents to corroborate the statement and it must be sworn. The form must then be sent to the other party by way of simultaneous exchanged by a set date as directed by the courts.
Questionnaires
If either party wishes to raise questions or require further detail about the other party’s Form E they may prepare a Questionnaire detailing what, if any, further disclosure is required and serve this on the opponent.
Statement of Issues
This is a short document prepared by each party summarising the issues that they believe remain unresolved in the proceedings.
Chronology
Again each party prepares a document recording in chronological order what they consider are the events that have taken place to date.
Form G
This form simply gives the court an indication of whether the parties believe the First Appointment can be used as a hearing to attempt a negotiated settlement with the help of the judge. This will be the case where both parties are looking for an early settlement and/or are satisfied with the financial disclosure made by the other party.

First Appointment Hearing

If this hearing can not be used as a Financial Dispute Resolution hearing then the Court will consider the papers file in accordance with the previous directions and further direct the issues to be dealt with prior to the next hearing within a given timetable.

Financial Dispute Resolution hearing

If at this stage a settlement has not been possible the parties attend court with their representatives and are required to meet at least one hour before the hearing to attempt negotiations to reach an agreement. The judge is used to give guidance and can give indications on they type of settlement that ought to be considered by the parties.

Where a settlement is reached a Consent Order is prepared in court and it is presented to the Judge for approval and sealing.

If a settlement is not negotiated, the Judge will Direct that the case be set down for a Final Hearing.

Many matters are settled either before or at this hearing.

Open proposals

Just before the Final Hearing both parties are required to file with the court what they proposal the settlement should be. This time it is not ‘without prejudice’ but open for the judge to see. Again this is in an effort to encourage a settlement to avoid the expensive costs of a Final Hearing and the risks of a Costs Order being against a party that may have unreasonable rejected sound proposals.

Final Hearing (Trial)

The parties are required to prepare trial bundles with all the relevant documentation and file this in court. This bundle is then referred to throughout the hearing. Usually both parties are represented by a barrister and both parties are required to give their evidence in person to the court. The Court will make an Judgement stating how the marriage assets are to be divided.

Implementation

Once the order has been made the assets can be distributed in accordance with it. Where a party fails or delays acting on the order it can not be enforced by the court until and unless the Decree Absolute of Divorce has been pronounced.

Variations and Appeals

There are various rules guiding any request that may be made by either party seeking to vary or appeal a court order.

Maintenance Pending Suit

After the divorce petition has been filed, an application for maintenance pending suit can be made if required.

This is where it is necessary to ask the court for an immediate maintenance order whilst financial proceedings are still pending. The court can make an interim order and maintenance can start being paid during the proceedings. The Order will be terminated when the petition is made absolute or a final financial order is made, whichever is the earlier.

It is necessary to make a separate claim for child maintenance.

Please refer to our Published Articles section for information relating to Pensions on Divorce.

> Return to main Family Law page