Financial remedy proceedings are one of the ways the family court comes to a decision over how a divorcing couple’s finances should be split but what happens at a financial remedy hearing?
When a couple divorce or end a civil partnership, they need to reach a legally binding financial settlement. This is achieved by having judge grant a financial remedy order based on the terms upon which the couple agree.
A financial remedy order come in several forms. These include:
- A property adjustment order outlining how any property owned by the couple should be dealt with.
- A pension order outlining how a pension should be shared. Depending on the circumstances this could involve a pension attachment order.
- A periodical payments order outlining the terms of any spousal or child maintenance payments.
- A clean break order which would confirm the court is not going to make any legal orders in relation to specific marital assets.
The type and contents of the financial remedy order will depend upon the financial position of the couple. This means some are straightforward, but others can become extremely complicated.
To decide the appropriate financial remedy order, the court will take all of the couple’s circumstances into consideration. Their first consideration is always the welfare of any children. From there the court will look at:
- The couple’s income and likely future earnings
- Their property
- Their age
- Their standard of living
- The financial resources each party and their children will need for foreseeable future
- The financial responsibilities each party has, again including what they’ll need to support their children
- The length of the marriage or civil partnership
- Any physical or mental disabilities
- The conduct of each party
- Any potential for either party to be financially affected by the divorce or dissolution of the civil partnership
What is the pre-court procedure in a financial remedy proceedings?
Before applying for a financial remedy order, the couple must work out if there is a way to resolve their situation without having to go to court. They need to do this in a Mediation Information and an Assessment Meeting (MIAM).
At the MIAM, one of the parties will discuss the potential for resolving their case via mediation (a process by which an independent third party helps the couple to reach an agreement outside the court process) with an accredited mediator.
There are some instances where mediation is not an option, for example where there has been a history of domestic violence. However, if it is an option the mediator will arrange a first meeting and most likely encourage both parties to attend together.
Once the MIAM has been held, a Form A needs to be prepared and submitted. This is the application for a financial remedy order. In the week’s following the submission of a Form A, each party will receive the Notice of First Appointment which sets out steps that need to be followed before the first court hearing. This is known as the first appointment.
Before the first appointment, both parties need to complete a Form E. This sets out each of their finances, other assets, financial responsibilities, income, outgoings and all other relevant financial information. The Form Es are then exchanged.
Following the exchange, each party then begins to prepare the other documents they’ll need for the first court hearing. These will include responses to any requests for additional information, more detail on any of the points raised in the other party’s Form E and, critically, a list of the keys dates and main issues surrounding the breakdown of the marriage/partnership.
What happens during the first appointment in a divorce?
During the judge will review all the information that’s been submitted and decide whether additional evidence is required to progress the case. The next steps -which the judge will set out- are likely to include:
- Replies to any questions raised in the review of Form Es
- Valuations of property, businesses or other assets if they have been disputed
- A pension report/valuation
It is also worth bearing in mind that if both parties appear to be in agreement, a hearing may not be needed at this stage and everything can be dealt with via correspondence.
What happens during the financial dispute resolution hearing?
The next stage of the process is a financial dispute resolution heading or FDR. The purpose of an FDR to help both parties reach an agreement. By this stage there should be a clear picture of the assets and finances involved which should make it easier for both parties to agree how they will be split.
The judge at the FDR will outline what they feel would be a fair and appropriate outcome. This view will likely be based upon the proposals each party will exchange ahead of the FDR. This exchange usually happens 14 days before the FDR to give the judge time to give the content proper consideration.
It is becoming increasingly common for couples to hold their FDR in private. This allows them to choose the time, date and location of the hearing and choose who adjudicates. These ‘judges’ will usually have more time to consider the detail of the case than a judge with a packed court schedule. Therefore, they are an attractive option for cases involving a large asset base.
What happens during the final hearing?
If a financial remedy order has been applied for, the case probably won’t require a final hearing as the couple will have reached an agreement by this stage. This saves an enormous amount of stress, time and costs.
However, if the FDR has not been successful, the court will hold a short pre-trial review hearing to assess whether the evidence needs to be updated or additional reports or testimony are needed for a final hearing.
At the final hearing, the court will examine the evidence and use it to decide on the financial remedy order for the couple. Whether this is made through negotiation or handed down by the judge, it will be legally binding and if either party fails to comply with the terms, they will be enforced.
If you would like to discuss a specific financial remedy case with one of our hugely experienced family barristers or would like to request training on any aspect of family law for your firm, please contact us today.