If you are going through a divorce or want advice about how to deal with things Rubin Lewis O’Brien have a dedicated team of solicitors who can help guide you through the process.
Contact one of the team on 01633 867000 or contact us via this form.
Rubin Lewis O’Brien offer a free, no obligation, 20 minute telephone call where you can ask questions and, hopefully, start to understand how to move forward.
Every year there are over 100,000 divorces granted in England and Wales. In each of these divorces there is a relationship breakdown and financial ties that need to be broken.
When a marriage or civil partnership breaks down, one of the critical aspects to resolve is the financial settlement between the parties. The process of determining how assets and finances will be divided can be complex and often requires the intervention of solicitors the family court.
In the first instance parties are encouraged to attempt to come to a negotiated settlement with each other and without any input from the Court. This can be done through solicitors. Agreements are the recorded in a formal Order (this makes those agreements binding).
The first step in this process is usually to agree to voluntary exchange of financial disclosure. This should, in most cases, be agreed to as if matters do progress to Court a Judge will Order full and frank financial disclosure through a Form E (see below for details). The disclosure can then allow for a picture of the financial situation to be formed which can then lead to making offers in settlement or considering whether an offer made is sensible.
A negotiated settlement could come from mediation that the parties have attended.
In order for a Court Application (Form A) to be lodged the parties must have attempted mediation and the mediator must be satisfied that mediation will not be successful or has broken down. The mediator will then provide a MIAMS Certificate. This certificate confirms to the Court that mediation was not possible.
A common misconception about mediation is that a party does not want to be in the same room to face their spouse. A mediation can still go ahead and be successful when parties are in separate rooms. It is the role of the mediator to pass on information and work between the parties to help guide a resolution. It is important to note that a mediator is impartial and independent. But they will help guide each party through the process and ideally create a workable conversation from which a possible agreement can stem.
If matters cannot be resolved through mediation, then a Court may be needed and an application lodged.
The factors that must be considered in proceedings are referred to in Section 25 of the Matrimonial Causes Act 1973.
Understanding the principles laid out in Section 25 of the Matrimonial Causes Act 1973 and the stages involved in financial remedy proceedings is essential for anyone going through this process. They are as outlined below:
Section 25 of the Matrimonial Causes Act 1973
- Welfare of Children:The court will prioritize the welfare of any minor child under 18 years old.
- Income, Earning Capacity, Property, and Financial Resources:The court will examine the current and future financial resources of each party.
- Financial Needs, Obligations, and Responsibilities:The court will consider each party’s financial needs and responsibilities.
- Standard of Living:The standard of living enjoyed by the family before the breakdown of the marriage.
- Age and Duration of the Marriage:The age of each party and the duration of the marriage.
- Physical or Mental Disability:Any physical or mental disability of either party
- Contributions to the Welfare of the Family:Contributions made by each party to the family, including non-financial contributions such as homemaking and caring for children.
- Conduct:The conduct of each party, but only when it cannot be ignored. It is an extremely high threshold.
- Benefits Loss:The value to each party of any benefit which they will lose the chance of acquiring due to the divorce (such as pensions).
Dealing with finances following a marriage breakdown and the Court Process involved.
A. Financial proceedings in the family court typically involves up to three main hearings: The FDA, the FDR and the Final Hearing
- First Directions Appointment (FDA): This is the first hearing. Key documentation needs to be completed and filed with the court and the other party before the FDA. The most important document that is completed before the FDA is the Form E.
Form Es are then mutually exchanged between the parties’ solicitors.
A Questionnaire can be prepared and exchanged about a spouses Form E which aims to ask about any inconsistencies, missing documents or general questions about the spouse’s situation.
The purpose of the FDA is to identify the issues in dispute, decide what further information is needed and set a timetable for the case and those omissions. Examples of further information might be a formal valuation of the family home or a report into how best to share or deal with pensions.
The Judge will give directions about what needs to be done before the next hearing, such as providing more financial information or answering questions.
- Financial Dispute Resolution (FDR): The FDR is a crucial hearing where both parties are encouraged to negotiate and reach an agreement with the help of a Judge. Around 75% of cases will conclude at this hearing. The Judge will give an indication of the Judicial view about settlement based on the information provided. While the Judge’s opinion is not binding, it can guide the parties towards a settlement. If an agreement is reached, the Judge can make an order to finalise the settlement in the form of an Order (which is then binding).
- Final Hearing: If no agreement is reached at the FDR, the case proceeds to a final hearing but before a different Judge to that of the FDA and without reference to any discussions at the FDR. Here, both parties present their cases, and the Judge makes a binding decision on how the finances should be divided.
B. Essential Forms: Form E, ES1, ES2 and the Questionnaire
Several forms are crucial in the financial remedy process:
- Form E:This is a comprehensive financial statement that each party must complete and exchange before the FDA. It includes detailed information about income, assets, liabilities, and outgoings. Form E provides the court with a clear picture of each party’s financial situation. The Form E will require a vast array of attachments. These attachments include 12 months bank statement for each bank accounts held, values of pensions, any state benefit income, any salary income from employment or self-employment and details of any business assets.
- ES1: the ES1 attempts to bring together the narrative of the case. It outlines who the parties are, if any expert reports have been received, how much each party has currently spent on legal fees and an outline of each party’s position.
- ES2: this ES2 brings together the financial picture in the case for each party. The document allows for a Judge to quickly see what finances are agreed between the parties and what is still in contention.
- Questionnaire:after exchanging Form E, each party can submit a questionnaire asking for further details or clarification on the information provided by the other party. This is an opportunity to address any gaps or inconsistencies in the financial disclosure.
C. Final Order: A Final Order records the agreements made between the parties or the decision made by the Judge. The Order is binding.
This Order is also used to provide clarity for what must be done. The Order may refer to a house being sold; a lump sum being paid/received and/or a Pension Sharing Order.
If you want help contact Rubin Lewis O’Brien on 01633 867000 or email info@rlo.law and one of the team will contact you to offer a free 20 minute no obligation phone call.
Our Family Law Department is now offering a more comprehensive initial consultation – giving you time with an experienced solicitor, expert legal advice, and a follow-up letter of advice, all for a fixed fee of £299*. Call us or contact us via this form.
