Starting Financial Proceedings

The courts will follow the guidelines stated within s.25 of the Matrimonial Causes Act 1973 when dealing with divorce settlements. The starting point for the courts would be to consider a 50/50 split of the assets and finances. The courts however will take into account further considerations and factors before reaching its decision as each case is unique.

When considering divorce settlements and exercising its powers, the courts will have regard to the following:

• The income, earning capacity, property and financial resources which each party has or is likely to have
• The financial needs, obligations and responsibilities which each party has or is likely to have
• The standard of living enjoyed by the family before the breakdown of the marriage
• The age of each party and the duration of the marriage
• Any physical or mental disability to any party
• The contributions made by each party to the welfare of the family
• The value to either of the parties to the marriage of any benefit which they will lose as a result of the divorce (such as pensions)

• The effect on the welfare of a child from the marriage – if one partner is responsible for the care and upbringing of children then their needs will be prioritized. This may entitle them to more finances in order to support the children.
• The reasonable needs of the parties. A partner who has less economic assets may be prioritised by the courts, resulting in a proportionately greater share of the assets.
• The current and potential earning capacity of each party. If one partner has prioritised parenting over career then the courts may take this into account. One partner who may have the ability to pay a higher mortgage than the other is also likely to receive a smaller share than the spouse with limited earning capacity.

You may need help with a range of things in preparation for and attendance at court, such as:

• Completing your initial application, Form A
• Completion and exchange of Form E before the first appointment: This financial statement is used by the court to understand your financial position. It requires details of all your finances including properties, savings, stocks and shares, debts, businesses, income and pensions. Your spouse will be asked to complete the same form for their financial circumstances. This process is called financial disclosure.
• A Chronology: a brief history of what each party sees as the relevant facts.
• Questionnaires: around disclosure or clarity regarding Form E. The Questionnaire aims to bring together all outstanding matters or information the other party may have failed to provided or provide accurately.
• File and serve a Statement of Issues: This statement highlights what the issues are in the case and what still needs to be answered by means of the Questionnaire.
• Statement of costs
• Preparations for the first appointment at court once the financial statement which is known as the Form E is exchanged. The courts will list the matter for a first appointment. This will be before a district judge to see what other information needs to be disclosed or supplied and to understand what the issues between the parties are.
• First Directions Appointment (FDA). At the First Appointment hearing, discussions will take place with the judge as to what, if any, additional information is required before the case is ready to proceed to the next stage.
• Maintenance pending suit
• Financial Dispute Resolution Hearing (FDR) a hearing where the judge will assist you and your spouse to come to an agreement about the financial arrangements. The majority of cases are resolved by agreement at or before an FDR. At the FDR it is the parties who reach the decision(s) not the Judge. To allow the judge to speak freely, if the matter can’t be resolved, the Judge dealing with the FDR will play no further part in the case and a new judge will be appointed.
• Pre-Trial Review (PTR) will take place approximately six weeks before the Final Hearing. The purpose of a PTR is to determine whether all previous court orders and directions have been complied with. At the PTR, the judge will determine whether any additional directions are required for the Final Hearing to be effective. The majority of the preparation for the Final Hearing will be done in the lead up to the PTR.
• Preparation for the final hearing: which can include help with creating a bundle of court documents for the judge to read, preparation of a statement (often called a section 25 statement) setting out your case and addressing the criteria under s.25 MCA 1973; consideration of and negotiating open and without prejudice offers,arranging for witnesses to be present if required and calculating costs schedules.
• Final Hearing (TRIAL): this can include evidencing, questions for cross-examination, examination in chief, expert witnesses and closing submissions. Final hearings are the exception rather than the norm. They carry inherent litigation risk as the final outcome is taken out of the parties’ hands. In the final hearing the judge will make the final decisions regarding the distribution of assets.