Terry & Co.

Divorce Proceedings in England

 


 

 

 

 

 

If the parties have not been able to come to an agreement about financial matters at the outset or if the initial exchange of financial information does not look as though it is going to be productive of a speedy settlement it is normally wise to make an application to the court to determine the matter. This is not to say that the issue will inevitably have to be heard before a judge because very many applications for ancillary relief are settled without the parties ever going to court but at least it does start the process off. And, in the last resort, if the parties cannot come to an agreement, a court will be asked to decide. The very fact that both parties know that if they do not reach agreement a court will decide the matter for them is a powerful incentive to reach agreement which is absent from purely voluntary negotiations.

 

In the meantime it means that the court can issue "directions" about how it wants the matter dealt with and, in practice, what this means is that a timetable can be imposed upon the whole process. It is normally better to do this than to allow correspondence between solicitors to continue indefinitely. To start the procedure off one of the parties to the divorce has to make an application to the court for "ancillary relief" - ie to have the financial issues settled. In order to do this one has to pay a court fee and make an application in the proper form.

 

When the court receives this application it will make "directions" (which are more or less automatic but the exact wording of which may vary from court to court) telling the parties what they are to do next. Usually these directions will specify various time limits within which certain things must be done. Most importantly the court will order each party to complete an "affidavit of means" . This now done by means of what is called a "Form E" which is a form of about twenty pages in length. The form asks various questions about the party's financial circumstances and also asks that various documents such as bank statements be supplied. The directions will normally specify that the affidavit needs to be completed within a certain time (usually 28 days) and then it should be sent to the other side and also to the court. Thereafter no further affidavits can be filed without the express permission of the court. The affidavit of means is a central document to the whole proceedings and it should be filled out carefully and completely. If this is not done it almost always causes complication and delay at some later date and may well have costs consequences for the person in default.

 

The directions will also deal with various other matters. In fact they will normally direct that once the affidavits have been exchanged the matter should be listed for what is called a "First Appointment". This will give the court the opportunity to consider what should be done next and what steps need to be completed by what date. This process ultimates leads to the setting of the case down for hearing and decision by a judge if in the meantime the parties have not been able to reach agreement about a settlement. The courts take a very active role in these proceedings and will generally wish for matters to be dealt with as soon as possible so that the opportunity for delay is limited. The court will set down time limits etc for the exchange of documents (which will probably be copies of bank statements, tax returns, pay slips etc) which the parties intend to rely upon in evidence. Most importantly, the court will say that after these steps have been complied the matter will be set down for hearing before a judge (and they will set out the formalities for doing this).

 

It can be seen that once this process has started the scope for delay is limited. If one of the parties does not comply with his/her obligations under the directions the other can apply to the court for an order directing compliance (and in the last resort a court can order imprisonment if its directions are not complied with). Although this whole process can take some time it should be a timescale of months and no longer. It is a rare case which takes more than twelve months to resolve even if everything is contested and the timescale in the majority of cases should be a great deal less than this. Nevertheless, matters rarely flow absolutely smoothly and there are typical problems which tend to recur.

 

You should not, incidentally, think that a case will end up being contested even if it has got so far as having a hearing date fixed. Firstly, there is almost always a hearing called a Financial Dispute Resolution meeting (FDR) and the purpose of this hearing is to see whether agreement can be reached on a voluntary basis. This frequently happens. Even if this is not successful at the final hearing of ancillary relief applications (as opposed to the various "directions" appointments which might take place before then) both parties are usually represented by a barrister who will present their case to the court. Each barrister may well have seen the papers for the first time about a week or so before the hearing and, of course, is able to bring a fresh mind to the problem (assuming he/she was not previously involved at the FDR). Partly for this reason it is often possible to broker an agreement at the very doors of the court. If the judge is informed that the parties are in negotiation he will almost always allow them sufficient time to conduct these negotiations.

 

These last minute settlements are quite common because the thought of going into court tends to concentrate everyone's mind and, of course, one can never be absolutely certain of how a judge will decide a case. Many people, therefore, prefer the certainty of an agreed settlement to the risk of letting the judge decide. If the case does not settle at this point (as very many do) it is then just a question of going into court, giving evidence and asking the court to decide. This only happens in a relatively small minority of cases.

 

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice. Ancillary relief is often the most contentious part of any divorce proceeding. Certainly, if it becomes so contentious as to involve court proceedings it almost always sensible to seek the advice of a solicitor.