If you are divorcing your spouse or going through a dissolution from your civil partner, sorting out assets and dividing the family home is part of the process. But as you will see, it is really important to put every effort into reaching a financial settlement without ending up in a contested hearing. This article also covers what happens if you can’t agree on a divorce settlement.
If you are divorcing your spouse or going through a dissolution from your civil partner, sorting out assets and dividing the family home is part of the process. But as you will see, it is really important to put every effort into reaching a financial settlement without ending up in a contested hearing. This article also covers what happens if you can’t agree on a divorce settlement.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Parvien Akhtar. Parvien is an award-winning lawyer with 25 years of experience as a qualified solicitor, and has a proven track record of providing high-quality advice to her clients.
Why do I need a financial settlement?
The reality is that no one other than your spouse is going to chase you to get a financial settlement, because it is not a legal requirement when getting divorced. Many people who have been divorced for years, work, incorrectly, on the assumption that their finances are separate from their ex’s and a claim cannot be made.
A divorce on its own has no bearing on the finances. But if you remarry without a financial settlement, you will be barred from making a claim on your ex-partner, and vice versa. However, until you either remarry or enter into a financial settlement, you will be tied to your ex, and it will still be possible for either party to make a financial claim against the other. If you want to guarantee that your ex-spouse will be prevented from making a claim from you, you will need an order saying so.
Is mediation or arbitration the answer?
For a large number of divorcing couples, mediation and/or arbitration provide a better alternative than going to court. It is usually quicker, cheaper, and places an emphasis on the need for compromise. Mediation can also reduce bitterness within the breakdown, and really helps children who know their parents have working together to come up with a fair solution. It is possible if mediation doesn’t work to conduct “round the table meetings” attended by both parties and their legal representatives to see if an agreement can be reached.
However, mediation and arbitration don’t work for everyone. If this is the case, you may find your only alternative is to go to court.
What is the court process if we can’t agree on the finances?
If you can’t reach an agreement with your ex and mediation has failed, then the only real alternative beyond leaving things as they are or agreeing to everything your ex wants, is to make an application to court.
As part of mediation or, more loosely during financial negotiations with your ex, you should each have given full and frank disclosure. Whether or not this has been done, it will need to be updated following the court application. This means both parties will be under an obligation to be honest about their financial position, and not hide any assets.
Typically, this is achieved by completing a comprehensive document called a Form E, and includes producing copies of supporting documents such as bank statements, pay slips, valuations, and accounts. Failing to provide such disclosure may result in the court using their wide-ranging power to force compliance.
Following disclosure, the case proceeds in the following way:
- The court will schedule a First Directions appointment (FDA) before a judge for twelve weeks after the application. This is to identify the issues between the parties and make orders, such as dealing with the valuation of assets.
- If an agreement cannot be reached at the FDA, or in the intervening period via solicitor negotiations, the next stage is the Financial Dispute Resolution appointment (FDR), which both parties must attend
- With the assistance of your solicitor, the judge will attempt to help both parties to reach an agreement and usually indicate what they believe would be a reasonable outcome. Judges often give an indication of what they will be minded to award before a hearing in the hope that the parties will go away and come to an arrangement rather than attending a hearing that will last a day or longer and swallow up the money being argued about in legal costs.
- If an agreement is not reached by this stage, a final hearing with a different judge will be scheduled. This often involves a wait of several months because of court time constraints and pressures; however, if an agreement is reached at any point prior to the final hearing, a consent order can be submitted to the judge for approval.
Would holding a private Financial Dispute Resolution hearing help reach an agreement?
Private FDRs involve the separating couple privately hiring a judge for a day to provide an evaluation of the likely outcome of their financial case. It is the equivalent of the second hearing in financial remedy proceedings, as described above. The main differences being that the divorcing couple:
- Choose their judge – this could be an experienced solicitor, senior barrister, or retired judge
- Pay the judge’s fees
- The “hearing” takes place out of court in a more comfortable venue, such as a hotel conference room
The judge reads the case papers and on the day of the hearing listens to representations from both parties legal advisors before giving an “indication” regarding the overall settlement and any remaining areas of dispute. Unlike mediation and arbitration, the judge’s indication is not legally binding on the parties, but is intended to be an aid to settlement.
Each party then returns to their respective rooms and their legal representatives go back and forth negotiating the agreement. The parties will not be required to speak or to give any evidence, as communication is between their lawyers.
Private FDR is suitable in cases where:
- Both parties are far apart in positions, but there is still a desire to reach an agreed settlement. The expert input of a neutral third party can be extremely useful in bringing the sides closer together.
- In cases which have become “stuck”, paying for the judge and attending the hearing can serve to focus everyone’s minds.
- Court congestion means there is a significant wait for a court based hearing
- Clients wish to negotiate in private away from the public eye
If an agreement is reached, this can then be encompassed into a consent order for the court’s approval.
Find The Best Divorce & Family Lawyers Near You
We independently review and list the top divorce lawyers and family solicitors in the towns and cities near you. 100% free.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
