Worrying about what will happen to your family home and the rest of your finances when you divorce can be very stressful, so knowing what to expect at the financial dispute resolution (FDR) hearing can help you prepare the hearing ahead. But an FDR hearing doesn’t simply happen in isolation; it will be part of a process, called “ancillary relief”. By the time you reach FDR stage, your solicitor will have at least attempted to negotiate a settlement, and you will have completed a Form E financial statement.
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As stated above, if you cannot reach an agreement, the only option is to go to court. This is done by completing a Form A and paying the appropriate fee. When the court receives the application, the case will be timetabled, which sets out what is going to happen next.
What is a Form E?
This is a comprehensive document about 28 pages long set out in the form of a questionnaire. Each party provides full details of their finances and attaches supporting documentation, such as wage slips, bank statements, or pension details. At first glance, the form can appear daunting, so many people take the opportunity to instruct a legal expert to help them. This ensures the form is completed accurately and is, therefore, more likely to be accepted by the court.
Each party must send a copy of the completed form and associated supportive documents to the other party and the court 35 days before the first hearing date. If either party has any queries about the details of the other’s form, they can prepare a questionnaire. This is essentially a list of questions arising from your solicitor’s forensic examination of the Form E.
What happens at the first hearing?
Before this first appointment, further documents must be filed with the court and the other side. These are:
- Chronology – this outlines details such as the party’s date of birth, marriage, dates of birth of any children, date of separation, etc.
- Statement of issues – this is a brief summary of the financial issues in dispute between the parties
- Questionnaire – this is often based on the contents of the Form E and asks for further clarification on certain issues or provision of additional documentation if required, such as missing bank statements.
This hearing, not to be confused with the later FDR hearing, to give it its proper title, is called a First Directions Appointment (FDA). At the hearing, discussions will take place with the judge regarding any additional information either party requires and the date it must be sent to the other party and filed at the court.
The court has wide discretion and can make various directions to allow any disputes to be resolved as early as possible. Orders could include property valuations or responses to questionnaires by a certain date. Although this hearing should not be confused with the FDR, it can sometimes be used as an FDR hearing if matters are simple and an agreement can be reached. This alleviates the need for further hearings.
How should I prepare for an FDR?
You will have already outlined your financial position and seen your ex spouse’s Form E, too. Any questions surrounding missing documents should be dealt with before the hearing and can be raised by your solicitor if you have one.
Your solicitor should have put forward your proposals for settlement, and the court made aware of them. At the FDR, the judge is likely to give an indication as to the potential future decision of the court. This is to focus both parties minds and encourage them to reach a compromise.
Financial dispute resolution hearings are only successful if both parties are willing to settle. Before the hearing, you should think about your options and if it is possible for you to make any concessions. For example, if you are determined to buy your ex out of the former family home, then you should be prepared to provide the court with evidence to demonstrate you have the financial resources to do so. If you are borrowing to fund the buyout, then you should consider any factors that might affect the level of borrowing.
What happens at the FDR hearing?
You will meet with your solicitor or barrister if you have instructed one and they will speak with you, take your instructions, and confirm the negotiating position. They are also likely to discuss several potential outcomes and what you hope to achieve.
At the hearing, you will not be expected to give evidence because your legal representative will put the case forward on your behalf. Your spouse’s solicitor will also be entitled to speak.
The judge will have read the court papers beforehand and will raise any questions they have with your representative. Sometimes, it is clear to the judge, both from what is said, and the offers made, that one party has unreasonable expectations. In these cases, the judge will give an indication to the court. Although this is only a sign and not a final decision, the judge will hope it encourages the party to take a more realistic approach.
If necessary, further negotiations will take place between the parties representatives, and while you will not be expected to discuss the matter directly with your ex, you will be expected to give your legal team instructions. The judge will also make themselves available if any further issues arise from those negotiations.
Should an agreement be reached at the FDR, then the representatives can draft an agreement, which both parties will need to sign. It is then placed before the judge for their approval and confirmation that it is fair to both parties before enshrining the agreement in a final order.
To summarise, the judge may do any of the following at the FDR:
- Adjourn the FDR hearing
- Make a consent order if the parties reach a settlement
- Give further directions if the parties have not settled and further clarification or information is needed
- Set a final hearing
What happens if we can’t reach an agreement at the FDR?
If you cannot reach an agreement at the FDR, then your case will be listed for a final hearing in front of a different judge. Any discussions that took place at the FDR hearing will not be disclosed to the judge presiding over the final hearing.
The judge will hear all the evidence from both sides, and you will both be expected to give evidence and answer questions from your spouse’s lawyer. Most cases don’t reach the final hearing stage because a settlement will have been negotiated beforehand, which will save a considerable amount of money in costs. It will also save time too, as there are usually several months to wait between an FDR hearing and a final hearing date.
What financial orders can the court make?
The court has the power to make the following orders:
- Interim maintenance/maintenance pending suit: This is an order for one party to pay the other maintenance until the financial proceedings are concluded. Up to the pronouncement of the final divorce order, it is called maintenance pending suit, and interim maintenance if paid after the final divorce order, but prior to making a final financial order.
- Periodical payments: This can sometimes be referred to as spousal maintenance and is a regular payment (typically monthly) to help one party with the costs of living. In some circumstances, payments can be secured against the paying party’s assets. Payments can be for a set period, e.g., five years, which can be extendable or non-extendable, meaning it ends at the end of the specified term. It can also be for the duration of the parties “joint lives”, meaning it only ends on the death of the first of the couple to die.
- Lump sum order: One party pays the other a specified sum of money on a particular date or series of dates. The court can also order a lump sum to be paid by instalments.
- Property adjustment order: This order changes how a property is held. For example, this could be a joint property ordered to be transferred into one party’s name or a change to the shares in the property from 50/50 to another proportion. The court can also order a property to be sold and the proceeds split between the parties.
- Pension orders: The court can either make a pension attachment order where the pension scheme is ordered to make payments to the member’s ex-spouse when the pension becomes payable, or a pension sharing order which transfers a defined percentage of the pension into a new pension in their ex’s name.
- Financial orders for children: Some of the orders mentioned above can also be made for the benefit of children, although there is an overlap with the Child Maintenance Service (CMS).
Will my ex have to pay my court costs?
The general rule on costs is that the court is unlikely to make an order for costs unless it is appropriate to do so because of the conduct of one party. For example, this could hide assets, lying about their financial situation, but it is essentially any behaviour which directly causes the other party’s costs to increase as a result.
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.
