Financial Remedy Proceedings

What are Financial Remedy Proceedings?

A financial remedy order helps divorcing couples obtain certainty in court with financial matters when separating if they have been unable to resolve things during mediation.

A financial remedy order can include any financial asset and how this is shared between the separating couple. Often, a financial remedy order deals with lump sum payments, pension share allocation, property division, and regular payments for childcare and other needs.

What are the stages in a Financial Remedy Hearing?

Pre-Court Procedure

There are some key steps to obtaining a Financial Remedy order.

Step 1 – Submit the Application:

Submit the Court’s Form A with your local Court. This can be completed by yourself or you can seek the support of a legal professional. You will need to pay the application fee and notify any relevant mortgage providers and pensions companies, where applicable.

As part of the application, both parties must disclose all documents on a full disclosure basis. This obligation continues until conclusion of the Order and you must notify the Court of any material changes to your finances.

Step 2 – Timetabling your Case:

The Court will timetable your case which will include the following:

· A date for when you and your former husband/wife will exchange financial documents (Form E).

· A date for when Questionnaires, a Chronology and the Statement of Issues are to be filed with the Court. This usually needs to be 14 days before the First Appointment (see below) and is served upon your former spouse.

· The date of the First Appointment (known as the FDA).

Questionnaires (questions you wish to ask the Other Side for further information

Chronology (detailing the relevant dates in your Marriage) and the

Statement of Issues are to be filed with the Court.

Consent Order is the Court approval of an agreement which has been reached between the parties. This is formally documented as an enforceable Court order.

Step 3 – The First Appointment (FDA):

This will be conducted by a District Judge, and they will explore whether further information is needed and establish if full disclosure has been made. If the judge is satisfied of these elements, negotiations can commence to settle the financial issues. They will also decide whether any other Directions needed to be made.

If a settlement is not reached at the First Appointment, the District Judge will set a date for the Financial Dispute Resolution Hearing (FDR).

Step 4 – Financial Dispute Resolution Hearing:

If the District Judge has requested further information and this has been served upon each of the parties, you are obliged to make proposals for settlement. These should be filed with the Court before the FDR Hearing. The aim is to settle before having the FDR Hearing, but if you do not, this will be attempted at this appointment.

At the FDR Hearing, the District Judge may suggest a framework for a settlement but they will not impose an Order at this Hearing. It is for the parties to reach an agreement, which will be approved by the District Judge.

If an agreement is not reached, further Directions will be made in order to prepare the case for a Final Hearing. If an agreement is reached prior to the Final Hearing date, a Consent Order can be drawn up to formally outline the terms and be filed with the Court for approval.

Step 5 – Final Hearing:

The Final Hearing is to bring certainty to the financial issues you are attempting to resolve. Many matters do not get as far as this but it useful to know what happens in case your matter does.

The Judge will make several Orders depending on what remains unresolved, which can include:

· The sale of any property

· The transfer of property ownership

· A Lump Sum Order

· A Maintenance Order

· A Pension Sharing Order.

The Judge will also be considering if a Clean Break can be made, which would mean you and your former husband/wife would have no financial claim against the other.

If there are children involved, they will be considered first and foremost in order to make their housing arrangements and decide on their maintenance. Other things taken into account will be:

· Age

· Ability to earn

· Property and wealth

· Living expenses

· Standard of living

· Role within the Marriage/Civil Partnership.

· The date for this will be decided by the District Judge.

You may need to supply the District Judge with additional paperwork and documentation, and you may be required to give evidence. They will decide how the finances should be separated and decide if either party has an ongoing responsibility to financially support the other.

How does a Consent Order work?

A Court Order is a document which sets out the terms agreed between the parties and which is approved by the Court. Court Orders are enforceable by the Court. This means that where a party deviates from the agreed terms, the other party can seek support of the Court to compel the defaulting party to act in line of the Consent Order. They therefore help provide a layer of certainty in respect of the financial arrangements between separating couples.

To apply for a Consent Order, you will need to provide a Statement of Information using Form D81. This includes:

· Details of the marriage and any children

· An explanation of how the agreement was reached

· A summary of each side’s financial worth

· A summary of where the parties and children will live

· Details of new relationships

· Confirmation that notice has been given to a mortgagee where the agreement includes a transfer of property

· Confirmation that notice has been given to any relevant pension provider

· Full details of the proposed consent order and whether the parties are seeking a clean break financial settlement

What happens if a spouse does not disclose all of their assets?

Under Form E the parties have a duty to provide full and frank disclosure. Failure to do so may lead to any Court being set aside, and potentially criminal proceedings for fraud under the Fraud Act 2006. However, proceedings under this act are virtually unheard of. Nonetheless, there is a real possibility of a cost order being made if a settlement has to be re-opened. Failure to be less than full and frank will lose that party credibility with the Court and this may impact that party’s ability to negotiate properly and reduce their final settlement sum.

Is a Pre-nup valid in the UK?

Pre-nup (Pre-Nuptial Agreements), are generally recognised and are enforceable by the UK Courts. These agreements should be approved by the Court in the form of a Consent Order. The terms of the pre-nup should deal with how finances should be divided and dealt with in the event of a divorce.

Pre-nups can be challenged by a spouse and the Court will review the way in which the pre-nup was agreed and the terms it contains. If your pre-nup was drawn up in a country other than in the UK, it would be advisable to speak to a specialist advisor about enforceability of the agreement.

If you need assistance with any of the above issues or require support with your Financial Remedy Proceedings, please contact Sima directly by calling 02073531746 or via email: clerks@simanajma.com.