If a divorcing couple are unable to reach a financial settlement, either because they have reached a stalemate within their negotiations, or one of them does not want to provide their financial information or engage in the negotiation process, one of the couple can make an application to the court for Financial Remedy, which is an application to the court asking the court to help with this issue.
After the application has been processed by the court a timetable will be provided by the court, which the couple must comply with. The first thing they must both do (usually within 12 weeks) is provide the court and their spouse with their financial disclosure in the format of a Form E, to which they must attach various documents, including bank statements, payslips etc.
The court will also provide a date for the First Appointment hearing, usually a month or two after Forms E are exchanged. This hearing is usually listed for 1 hour. Some courts deal with these hearings remotely (by way of court video link) and some courts will expect you to attend the court building for the hearing. Both spouses are ordered to attend the hearing (whether remote or in person) along with their solicitors.
The First Appointment Hearing is a procedural hearing where the judge is trying to work out what further information is needed from each spouse or any experts, before everyone has enough information to try to negotiate a settlement. To assist the judge with this there are various documents that need to be prepared and sent to the court (and your spouse) before the court hearing, which include the following:
- If, after considering your spouses’ Form E and supporting documents, you have questions about their finances or need further documents from them to clarify their finances, you need to prepare a questionnaire detailing what you need.
- If you and your spouse are unable to agree the value of assets, such a properties or shareholdings in private limited companies owned by either spouse, you will need to make an application to court for this expert evidence to be obtained jointly by you and your spouse. Details of proposed experts and their likely costs will need to be provided with this application.
- If you and/or your spouse have pensions and a pension sharing order is likely to be part of the overall settlement, an application will need to be made for expert evidence from an actuary to advise on the percentage pension share needed.
- A form ES1, which is a jointly completed summary of the case and the issues.
- A schedule of assets showing the values that both spouses attribute to the assets (an ES2).
- A draft order detailing what you are asking the judge to order and the proposed timescales for the production of this information.
The judge will have read these documents before the hearing and have a good idea of what information is needed and what issues there are.
At the First Appointment hearing the solicitor representing the spouse who made the court application will speak first. They will advise the judge where there are areas of agreement – for example both spouses may agree that an actuary’s report is required. The judge will hopefully agree that this is necessary (they can disagree but are unlikely to if you are represented by an experienced solicitor who knows what information is needed and what is not).
They will then advise the judge where there are areas of dispute – for example one spouse may not agree to answer all the questions raised by the other spouse. They will put forward their client’s arguments regarding the areas of dispute.
The other spouse’s solicitor will then put forward their client’s arguments regarding the areas of dispute. If there are a lot of areas of dispute the judge may hear from both sides on each issue, rather than hearing from one on all issues and then from the other.
The judge may ask more questions about some of the issues, which may be directed at the solicitors or the spouses. The judge will then make a decision regarding the areas of dispute. The judge will confirm all the further information that they are ordering be provided and the timetable to progress matters to the next court hearing, called the Financial Dispute Resolution hearing.
After the hearing the solicitor whose client made the application will draft an order detailing all the further information that the judge ordered be provided by both spouses and experts, the time scales in which these are to be provided and when the next court hearing is to take place. Once approved by the other spouse’s solicitor the draft order is sent to court for the judge’s approval.
It is possible for a couple to agree all the further evidence they both require in advance of the First Appointment hearing. If your solicitor is an expert in this area, they will be able to tell you what information is needed from experts and from you and your spouse. If this can be agreed you can follow the Accelerated Procedure and submit a draft order, detailing the further information needed and timetabling the matter up to the next court hearing, to court for a judge’s approval before the First Appointment hearing. If the draft order is approved by the judge, there will be no need to attend the First Appointment hearing.
