Step 4 - How to apply to court for a Financial Order
When negotiations don't seem to be going anywhere or your ex is refusing to even discuss finances then you might consider applying to court for a financial settlement.
Should I apply to court?
The main benefit of going to court is that you will (eventually) get a final ruling and the court can enforce the ruling (for example by forcing your ex to sign over a property to you).
The downside of going to court is that it can get very expensive, especially if both sides use a solicitor. If you use a solicitor for the whole journey through court then your costs could be £5,000 to £10,000 (or more) each.
If you have been trying to negotiate and you have got stuck because there is a £20,000 difference between what you want and what your ex is willing to offer, then you should really try very very hard to reach a compromise and meet each other half way so that the £20,000 in dispute is split between you and your ex and not spent on two solicitor's bills.
If the gap between what you want and what you are being offered is more than £100,000 then it may make sense to go to court - but still try to keep an eye on the costs.
It is important to note that even if you have managed to get Legal Aid - you will most likely have to pay back your legal aid solicitors bill out of the settlement that you are awarded in court.
What can the court order?
In divorce disputes the court have a very wide remit to take action to distribute assets and income between a divorcing couple in order to achieve fairness.
The Court can only make orders provided for in the Matrimonial Causes Act 1973 (see list below). Other matters can be agreed but will usually have to appear in a separate part of the order known as the "Recitals" or one party may give a formal undertaking to do or not do certain things.
The Matrimonial Causes Act allows the following orders to be made:
- section 23 (1)(a) - Periodical payments (typically monthly payments for child or spousal maintenance)
- section 23 (1)(b) - Secured periodical payments (maintenance secured on a particular property or asset - we don't often come across it)
- section 23 (1)(c) - Lump sum order (a lump sum of money - for example to buy someone out of their share on a property)
- section 24 - Transfer of property order (the most common example is the transfer of the matrimonial home from the joint names of the parties into the name of only one of them)
- section 24A - Sale of property order
- section 25A - Pension Sharing (i.e. an order which splits off part of a pension and allows for it to be invested separately to provide a pension for the other spouse)
- section 25 B - Pension Attachment (i.e an order which requires the pension provider to pay out part of the pension lump sum receivable on retirement and/or the ongoing pension, to be paid to the spouse instead of to the pension scheme member)
- section 25C - Pension Attachment of Death Benefits
- Where the parties are in agreement and the receiving party is not on income support;
- Where a child maintenance order has previously been made by the Court and there is an application to vary the amount;
- Where there is an application for payment of school fees;
- If either parent lives abroad
It follows that while Court orders do often include child maintenance, in most cases this will be where the parties have managed to negotiate an agreement as to figures payable.
How does the court decide who gets what?
There is no hard and fast rule. The Court will apply a number of statutory factors which include the age, income earning capacity, responsibilities of the parties, their needs, the length of the marriage and the parties' resources including their pensions. The interests of minor children always come first so that providing accommodation for them will be a priority. For further information on this see - What does the law say?
This section explains what happens when you (or your spouse) apply to court for a Financial Order.It covers the key stages such as the First Appointment, the Financial Dispute Resolution Hearing and the Final Hearing.
Note: the court process for obtaining a Financial Order used to be known as the Ancillary Relief process. So you will find many old articles and forum posts on this website that talk about Ancilllary Relief.
Step 1 - Consider MediationMediation is generally accepted as a more cost effective way of resolving disputes than going to court. Because of this the courts now require that you at least find out about mediation and consider the benefits of mediation before you can apply to court for a Financial Order.
So you cannot apply to court for a Financial Order unless you have a completed and signed Form FM1 from a mediator to say that you have attended a Mediation Information and Assessment Meeting. The form will detail why you or the mediator feel that mediation is not suitable in your case.
Step 2 - Apply to courtAn application (Form A) for Ancillary Relief can be issued by either party to a divorce. There is a simple form to complete and Court fee to pay. The Court issues the application; automatically makes an order for documents to be prepared by both sides; lists the matter for a First Appointment in 12 to 16 weeks time; and sends copies of all the paperwork to the Respondent to the application within 5 days. If there is an application for a transfer of property order or for pension provision, the Applicant also has to arrange service on any Building Society or Pension Provider.
Step 3 - Financial Disclosure on Form E
A lengthy and comprehensive explanation of your financial situation which has to be completed in detail and sworn in front of a solicitor who is not involved in the case. Certain documents have to be attached such as payslips, a valuation of the matrimonial home, 12 months bank statements, credit card statements, detailed information about any pensions including any SERPS or additional state pension entitlement and any other documents which help to make sense of what you set out in the Form E itself. Form E is required 3 weeks before the First Appointment so you usually have at least 9 weeks in which to get it ready.
Chronology - a list in chronological order of all the main events of financial significance to the marriage.
Statement of Issues - A short statement of the main points at issue between the parties
Questionnaire - A list of questions and documents which you ask your opponent to provide which are relevant to the Statement of Issues and which will help to clarify matters
Form G - If both parties agree and have all the relevant documentation, the First Appointment can be used as a Financial Dispute Resolution appointment
Form H - An estimate of costs up until the First Appointment.
The Chronology, Statement of Issues and Questionnaire have to ready one week before the First Appointment and the Form H the day before.
Step 4 - First Appointment
Depending on local court practice this will may be used as a first opportunity by the District Judge to address issues and encourage the parties to negotiate. Procedural matters are dealt with and directions are given by the Judge about the future conduct of the case. The appointment takes place in private "in Chambers" commonly round a large set of desks in the Judge's room. The only people present will be the Judge, the parties and their legal representatives. You may be represented by a solicitor or a barrister. You may feel more comfortable if you bring a friend with you for moral support but if you do so, your friend will need to wait in the public part of the building while you go in to see the Judge.
Step 5 - Financial Dispute Resolution Appointment
The "FDR" is usually listed about 2 months after the First Appointment. By that time both parties should have available all the relevant facts and documents and the appointment will be led by the District Judge with a view to encouraging the parties to reach a settlement. Offers will usually have been made on both sides and these will be considered by the Judge and each of the legal representatives will explain their respective positions.
Every FDR is different and each Judge has their own way of conducting them. However, the Judge is likely to give a view as to which arguments are likely to find favour and may indicate what kind of order he or she would make if hearing the matter. The parties and their lawyers are then invited to leave the Judge's room in order to negotiate. The main part of the negotiations are dealt with between the lawyers (most probably down a corridor, while you wait in an interview room if you are lucky or in some other part of the corridor if the Court is crowded). Your lawyer should come back and report to you at regular intervals as to what is being said.
If agreement is reached, the District Judge may make an order there and then but it is quite usual for the matter to be adjourned so the order can be drafted by your solicitor back at the office, approved by the other side and then sent to the Court for approval. If the matter is not agreed, the Judge will make any further directions required and set the case down for a final hearing.
Step 6 - Final Hearing
If the parties are still not in agreement, the matter is listed for a final hearing. This is a much longer hearing, again heard in private, although it may take place either in the Judge's room or in a Court room. A very straightforward case might be set down for half a day. A longer case will take up a whole day or more. The Judge who dealt with the FDR cannot deal with the final hearing because he/she will be aware of the without prejudice offers which cannot be disclosed to the trial Judge.
You will find the room will be awash with "bundles". All the paperwork will have been gathered together and everyone should have a paginated bundle of all the relevant documents organised in a particular order and usually put into lever arch files. It is the Applicant's solicitor's job to get this organised and since documents often appear just before the hearing this can be very troublesome. If you want to help your solicitor, get your documents sorted out well before the hearing!
At the start of the case, the solicitor or barrister for the Applicant will make an opening speech explaining what the case is about. Each of the parties and any witnesses then give evidence and are cross-examined: the Applicant going first followed by his/her witnesses and the Respondent and his/her witnesses giving evidence second. The lawyers each make a closing speech. The Judge will then give his or her Judgement and make whatever order he/she considers appropriate. After the order has been made there will be more arguments presented on the question of costs and a costs order may be made.
Several days later you should receive a copy of the typed order from the Court and your solicitor will start doing the work required to put the order into effect. This can be time consuming and may involve transferring a house or endowment policies and organising a pension sharing or attachment order.
Assessment of Costs
The file will not be finished with until the costs have been sorted out. This may take a very long time! If you have the benefit of a public funding certificate, the costs will be recorded in a lengthy bill of costs. You will be provided with a copy and given an opportunity to ask for a hearing before a District Judge if you are not happy with what your solicitor is charging ("an assessment appointment"). The hourly rates are fixed by the Lord Chancellor's department each year, so if you object you can only really say that your solicitor took too long doing something; did a job which was not necessary; or that the bill duplicates items or includes work which was not done.
Whether you ask for an assessment appointment or not, the bill will be scrutinised by the Judge who will carry out a provisional assessment. Items may be knocked off. The bill is returned to your solicitor. If your solicitor is not happy, he/she can ask for an assessment appointment. Eventually, an assessment will be finalised and the final figure is sent to the Legal Services Commission so that your solicitor can be paid. Interim payments on account will have been paid in the meantime, so it is only the balance which is paid over at this point. When it is all finalised, you should be told what the final figure is, since this will usually have to be repaid by you to the Legal Services Commission under the operation of the "statutory charge".
If you are a private client, your solicitor will have been sending you invoices as the matter went along. A final invoice will be raised and as far as your own costs are concerned that will be that.
However, it may be that either you are ordered to pay your spouse's costs or that he/she is ordered to pay yours. Sometimes a figure will have been fixed by the Judge at one of the hearings. More commonly, there will be an order for the costs to be "assessed if not agreed". If that happens you will find there is a procedure very similar to the assessment procedure described above. Again a bill of costs will be prepared. The figures will either be negotiated between the solicitors or there will be an assessment hearing and a costs order will then be made.