Financial Orders


  • Isn’t the court process just unnecessarily complicated and designed to make lawyers money?

The various financial orders which the court has power to make when it grants a divorce are known as ancillary relief or matrimonial financial proceedings. The procedure can be expensive but is designed to promote agreement between the parties, reduce delay and limit costs. The court timetable must be adhered to otherwise the Judge may make an order for costs against a party if he/she fails to meet the following deadlines.

Applications


  • I am ready to go to court. My solicitor has sent in the Application. What happens next?
  • Presumably we are in court in a couple of weeks.
  • My wife says that she gave me all her disclosure once and that is enough but I think she has more than she has let on.
  • I have been given notice of a hearing but I am away on holiday.

Either party can send an application (Form A) claiming ancillary relief to the court office which is dealing with the divorce at any time after the petition has been filed. No supporting evidence or information is required at this stage but two copies of the Form A should be sent with the original. The form sets out the briefest indication of what the Applicant is seeking. There is an issue fee, currently £240.

The party who sends the Form A to court is called the Applicant and the other party is called the Respondent. Both parties are under an ongoing obligation to make full and frank disclosure of all material facts and relevant documents and information, including any changes in their financial situation during the course of the proceedings. It is not the case that one stage of disclosure will do. If circumstances alter or assets fluctuate in value, more information is required.

When the court receives the Form A, it will fix the initial hearing, called a First Directions Appointment (FDA) for 12 – 16 weeks ahead. The court sends a copy of the Form A and a Notice of the First Directions Appointment to both parties and the date fixed can only be changed with the court’s permission (which will usually be given if both parties agree). Circumstances involving a change of date are generally where it would be more economical to have the hearing adjourned because further disclosure is pending.

Offers to Settle


  • What do people mean when they refer to ‘without prejudice’?
  • Should every letter be ‘without prejudice’?
  • Why would I want to offer less than I could achieve at a Final Hearing. What is the incentive?
  • OK, we have reached an agreement. Why do we need a court Order – an exchange of letters between solicitors is surely enough?
  • We have just issued the divorce and agreed on finances. I want the deal sent into the court now for the judge to make it binding but my lawyer says that I have to wait.

At any stage either party can propose a settlement and this can even happen on the day of a final hearing. Such offers may be made ‘without prejudice’, meaning that the offer will not be put before the Judge at the final hearing unless at the end, the party who has made the offer considers that it should be brought to the Judges attention on the issue of costs. Without prejudice proposals allow a party to offer a compromise without being concerned that they will weaken their position at the final hearing if the offer is not accepted. They may, for example be prepared to accept less before the hearing than they believe the court will grant them, in order to avoid the time consuming, stressful and costly court process, but will not want to reduce their claim if the case does go to a final hearing.

Alternatively offers are made on an open basis; that is open to both parties and the Judge throughout the proceedings. Clearly, the terms have to be very carefully considered as they can be accepted at any time unless withdrawn in writing beforehand and such offers will be seen by the Judge at the outset of the final hearing.

Where the parties have managed to agree a settlement, then its terms must be clearly set out in writing. This document is called a draft Consent Order and once it has been signed by the parties and their respective solicitors, it is submitted to court for the District Judge’s consideration. If the court approves the settlement, considering it to be fair to both parties, then the draft becomes a Consent Order and will be sealed and served upon the parties. However, a Consent Order cannot be made until Decree Nisi has been pronounced (unless it relates to interim maintenance) and will not come into force until after the Decree Absolute has been granted.

Interim Orders during Matrimonial Financial Proceedings


  • My lawyers say it could take 9 months until the Final Hearing. I cannot make ends meet until then and need some more money each month.
    What can I do?
  • I need to have more income now. I might as well use this application to court. Why not? What could dissuade me?
  • How do I go about applying for maintenance pending suit?

If either party to the proceedings needs financial assistance before the final hearing (which can take at least 9 months to reach) they can, at the same time as or at any time after issuing the Form A, apply for an interim maintenance Order (sometimes known as maintenance pending suit - MPS). This is an order asking for periodic financial assistance until the final hearing when the matter can again be considered.

The application is made either in the original or a subsequent Form A. If a Form E (see below) has not been filed, the application must be accompanied by a short sworn statement about the Applicant’s means and outgoings and why the application is necessary. Applications are rare as the benefit of what will be received must be balanced against the costs that will be incurred. Generally the threat of such an application helps to encourage a reasonable compromise.

A notice of the application must be sent to the other party by the court and the hearing date will be a matter of weeks (no more than a month or so) after that warning has been given. The other party must prepare and send a short sworn statement of means, not less than 7 days before the hearing setting out their own relevant financial circumstances and comments on the application. It is always wise to try and settle by means of an open or without prejudice offer to avoid the costs of an interim hearing. The unsuccessful party may, of course, be ordered to pay the costs which have been incurred by the other in connection with the hearing but do not presume this to be the norm.

When making an application for maintenance pending suit, it is possible to ask the court to include a monthly element in the payments to cover legal fees. An application for MPS can, therefore, be a useful tool for a party who does not have any income or assets in their own name but who is married to someone wealthy. In such circumstances, it is important to ensure that ‘poorer’ party does not suffer because they cannot afford to pay a lawyer.

Financial Statement (Form E)


  • My lawyer has handed me this enormous document called a Form E. Not only does he want it completed but he wants lots of financial papers attached to it. Is this really necessary? We know what we have got.
  • I am not having an estate agent to value my home. It is not for sale. I am not leaving.
  • Why on earth is 12 months worth of bank statements relevant?
  • My local authority employers say it will take 3 months for them to value my pension but I have a hearing next month – what can I do?

At least 35 days before the date of the First Appointment each party must simultaneously send to the court and exchange with the other a sworn statement of their assets and income known as a Financial Statement or Form E. Copies of the following documents, if relevant, will have to be attached to the Form E and these are mentioned in the small print of the document:-

  • Property valuations obtained within the previous 6 months. These can be market appraisals or formal valuations. Neither is strictly necessary if both parties agree and are certain of the value.
  • The most recent mortgage statements in respect of all properties confirming the amount required to redeem each mortgage (obtained from the bank/building society or loan company). This includes statements relating to any second charges.
  • Statements covering the last 12 months for every bank, building society or savings account, whether held in the party’s sole name or jointly with anyone else, including the other party.
  • Surrender value quotes in relation all endowment policies, although steps should not actually be taken to surrender the policy.
  • Business trading accounts for the last 2 years together with tax returns for the same period.
  • A recent statement for each pension fund held, showing the cash equivalent value (CEV) of the fund. This includes a statement confirming the CEV of the Party’s Additional State Pension.
  • The last P60, last 3 payslips if paid monthly or 6 weeks if paid weekly (a longer period if there are any fluctuations) and P11D if issued.

The parties should also attach any other documents which are necessary to explain or clarify the information contained in Form E. For instance details of any loan agreements or credit card statements are useful as are any conveyancing or trust deeds relevant to the case.

Any documents which should have been attached to a From E but were not must be sent to the other party at the earliest opportunity, together with an explanation for the delay. Often this is caused by third parties such as Pensions Trustees, some of whom can take 3 months to provide a valuation.

There is an art to preparing a good Form E and in particular section 4, which summarises the section 25 factors. At Blackdown Family Law Solicitors, we have a wealth of experience at completing Forms E and have a perfected a skill for ensuring that the relevant details in relation to your case are highlighted and made clear for the court to assist it in its decision making.

Other Action before an FDA


  • I have completed my Form E thoroughly – what more can possibly be needed?
  • My lawyer says that he must prepare some other forms before the FDA – what is their purpose and benefit to me?
  • A Chronology – I cannot remember everything that has occurred during our marriage.
  • My husband’s Form E is awful. He must have spent all of five minutes completing it. What can I do to secure proper disclosure?
  • My wife had an affair. There is a lot that I want to raise in my Questionnaire about this but my lawyer says it is not relevant. It is to me.
  • Lots of paperwork, is there any document that can summarise the issues between us?

A variety of documents are completed and exchanged prior to the FDA.

At least 14 days before the First Appointment, both parties must send to the court and also to the other party:-

  • A Chronology – a list of the important facts in date order and this often concentrates on events during the marriage. Your solicitor will explain what is relevant.
  • A concise Statement of the Issues – this will concentrate on the areas of disagreement between the parties and hence the issues upon which the court is being asked to decide. This is best drafted by a solicitor. Sometimes the document is brief, although in other cases, the solicitor will cross reference the facts of the case to the Section 25 Criteria. It depends on the complexity of the case.
  • A Questionnaire – this seeks further information and documents which the opponents Form E either deliberately or mistakenly lacks. It may also seek further clarification on important issues. The questions asked must have relevance to the Statement of the Issues and should be cross referenced to the other party’s Form E.
  • A Notice (Form G) stating whether the party will be able to proceed with the First Directions Appointment (FDA) as an Financial Dispute Resolution Appointment (FDR). If not, an explanation should be given for the reasons why and blame attributed if the other party is at fault.
  • An estimate in Form H of the costs that have been incurred - see below.

Costs Estimate


  • I realise that ‘going to court’ is an expensive process. My solicitor gave me a cost estimate at the start of my case and updates this regularly. However, does he need to keep me advised at every hearing?
  • I have just attended court and the Judge gave my husband and me some stern advice about future costs. Is this normal?
  • My spouse has acted unreasonably by failing to disclose assets and ignoring the court timetable. My solicitor says that we might secure and order for costs because of my husband’s inactivity. Is this possible?


Immediately before the FDA, each party must produce to each other and to the court an estimate of the costs that they have incurred (on a Form H). If either party wishes to ask the court to award them a specific figure to cover the costs of the First Appointment, that party must produce a special cost schedule (a Request for a Summary Assessment of Costs) and this is a document drafted by a solicitor 24 hours before the court appointment.

An estimate of the costs to date on a Form H must be produced at every subsequent hearing. The court will try to prevent the costs from becoming disproportionate to the value of the claim by drawing the level of costs to the attention of the parties. Each party must always reflect on whether the costs are proportionate to the assets involved. Even if costs are quite low, the Judge generally warns about the risk of spiralling costs. This is helpful as the parties should always consider a compromise.

The First Directions Appointment (FDA)


  • I am due to attend my first hearing called an FDA presumably that is it and the whole case gets sorted out then and there?
  • What happens at an FDA?
  • I want my own pension’s expert and surveyor and my husband can have his own. What is wrong with that as they will not be independent if we use the same one?
  • I thought this case was going to be completed and now the Judge has appointed someone called an Actuary to look at pensions. Why?
  • Another hearing after my FDA and now called an FDR – is this really necessary?
  • I have just been to court for a FDA it did not last long and cost me quite a lot. A friend said that her solicitor managed to combine the FDA with the FDR and that was far more useful. Should my solicitor (who is rather junior) have done the same?
  • My experienced solicitor is pressing me to complete all of my disclosure and prepare myself for an FDR on the same day as my FDA. Why is he doing this? He says it will save me costs.
  • I have just had my spouse’s Form H. Is this normal? Their costs are much higher than mine. That has pleased me because they send my solicitor aggressive letters all of the time but perhaps now my spouse will realise what his lawyer is costing him.


The aim of the First Directions Appointment is to identify the relevant issues in dispute and hence prevent a costly investigation into irrelevant matters. Both parties must attend in person as well as their lawyers, unless there is good reason not to. The hearing is conducted by a District Judge who will consider the documents and give directions, letting each party know the questions that they must answer in the other party’s questionnaire (i.e. which are relevant and which are superfluous), the documents which they must produce (over and above what they have already done) and the experts reports which must be obtained e.g. valuation reports in respect of properties and businesses, actuarial reports in respect of pensions and consultants reports in respect of medical conditions. The District Judge will also make orders as to any further evidence that he/she considers will be necessary to make a decision at the final hearing.

Where expert evidence is being sought the court will usually direct that parties should agree upon a single expert whom they can jointly instruct. This is because a separate expert for each party inevitably leads to double the expense, whereas one joint expert generally halves the cost. The party wishing to instruct the expert should give the other party a list of acceptable expert names and the other party should indicate any objections, and may suggest alternative names. A jointly appointed expert needs to be objective in their opinions and to answer written questions from either party after the production of their expert report. They may also need to attend the final hearing to give evidence and again, answer questions which are put to them by both parties’ legal representatives.

A joint expert will be agreed in the majority of case but where this is not possible, the court will direct separate experts to liaise in order to determine the areas which they agree upon and those which they do not.

At Blackdown Family Law Solicitors, we always do our best to save costs by attempting to agree directions with the other party’s solicitor before the FDA. Letters can be sent to court by each solicitor setting out those directions and asking the court to make them in the parties’ absence. The expense of the hearing is then avoided. Sometimes, this is not possible because there is an issue about a particular direction that is being sought, in which case, there is no alternative but to attend the hearing and argue the matter before the District Judge.

In almost all cases the District Judge will then direct at the FDA that the parties should attend a Financial Dispute Resolution Appointment (FDR) and will set a date for this. The FDR is the stage which is incorporated into the procedure to give the parties the opportunity to broker a deal with the assistance of the court. It is essentially a meeting which is held for the purposes of discussion and negotiation. Again an experienced solicitor can save costs by asking the District Judge to treat an FDA as an FDR hearing but this can only be done where both parties have made full disclosure and any expert evidence has been secured beforehand. This decision is entirely at the discretion of the District Judge but they generally wish to do all possible to minimise costs and encourage a settlement.

In some cases which are not suitable for a FDR, the District Judge will instead set a date for further directions, or a hearing for an interim order, or a final hearing. The District Judge may also adjourn for mediation or private negotiation to take place. If both parties manage to agree a settlement through negotiation, the District Judge may even make a final order containing its terms and this will bring the proceedings to a conclusion.

If one of the parties has applied for an interim order such as for interim maintenance and urgently needs the courts assistance, the District Judge has the power to make such an order at the FDA although there is usually insufficient time to deal with this (unless agreed) and hence an ajourmanet to a longer hearing will be required.

Sometimes there are proceedings in relation to the children of the family or there is a domestic abuse application. The FDA can be used to review (but not impose orders) the current situation with regard to these so as make the hearing as costs effective as possible.

As mentioned earlier, both parties have to produce a written estimate of their costs (Form H) to the District Judge and to each other. The District Judge has the power to make an order for costs at the FDA but this depends upon the circumstances and the extent to which each party has complied with all the rules. If there has been non-compliance by one party to such a degree that the hearing has been ‘wasted’ then the court may order that party to pay the costs which the other party has incurred in connection with the hearing. Such orders are nevertheless rare, unless one party has failed to comply with their obligations for disclosure or the court timetable generally. The costs estimate concerns past and present costs and serves as a warning to both parties about the need to consider a compromise.

Between the FDA and FDR Appointments


  • We attended the FDA and my spouse was given a direction to disclose full details of his savings and answer various questions in writing. He has not done so. What can I do now?
  • If we have another hearing to get my spouse to comply with the directions order, it will just cost me much more money, when it is his fault due to his behaviour. Is the Judge going to do anything to compensate me?
  • My pension trustees say that it will take them longer to reply than the direction has allowed for. It is not my fault but I am worried about a costs order. What can I do?
  • My solicitor is sending copies of all my ‘without prejudice’ offers to the court. These are supposed to be off the record – why is he doing this?

Both parties must comply with all of the directions given at the FDA by the dates specified and at the very latest, by the time of the FDR. Either side may apply for further information from the other side, but the court must approve the application which will possibly mean a separate hearing. However, if the other party is ignoring a direction then a hearing which ensures that the other party complies could result in them being penalised in terms of costs. You ignore the directions and court timetable at your peril, unless the delay is due to circumstances beyond your control. If delay is unavoidable and you can prove you are not at fault, simply explain this clearly to the other party.

At least 7 days before the FDR, the Applicant must send to the court details of all offers and proposals made by them and the other party, together with any responses, including relevant correspondence marked ‘without prejudice’. This is because the District Judge needs to be aware in advance of the negotiations and will be critical if a reasonable attempt has not been made to settle.

Both parties must produce to the District Judge and each other, a second estimate of costs on Form H immediately before the FDR.

The Financial Dispute Resolution Appointment (FDR)


  • What is a FDR? Is this the Final Hearing?
  • The Judge spoke for about 15 minutes with her opinion – is that the end of the case then despite the other side not agreeing?
  • I liked what that Judge said but my solicitor says that we will not see her again. Why not? I want her to deal with the final hearing?
  • We are only listed for a 30 minute hearing but my solicitor says that I need to be prepared to spend the best part of the day at court. Why?
  • Surely the Judge at the final hearing will take the same view as surely, they are supposed to say the same things?
  • My spouse wants to think about what the Judge said over the next few weeks. Can’t they just accept what was said and end it now?
  • Narrative Affidavits – more cost! Why are these needed?
  • Should I be cautious about accepting the proposal at the FDR? Is there a 14 day ‘cooling off period’. It is an important decision after all. Surely I get time to think?

The aim of the FDR is for the court to actively help the parties to reach an agreement. Each party is expected to make offers and proposals and to give offers and proposals made by the party proper consideration in view of the costs involved in further litigation. The FDR should, as mentioned above, be treated as a meeting which is held for the purposes of negotiation and discussion. Both parties must attend the FDR in person with their lawyers unless the court orders otherwise, as progress cannot be made to settle the case if one of the parties is absent.

The FDR is conducted by a District Judge. The approach is largely informal and is designed to promote agreement between the parties. The Judge is expected to give an informed and reasoned view on the issues between the parties on the facts available, which are never as full as they would be at a final hearing. Neither party will be required to give oral evidence at an FDR. Most judges are former litigation solicitors so their opinion will be based upon considerable practical experience both as a Judge and as a practising solicitor. The Judge is offering an experienced opinion and only has the power to settle the case if the parties agree. Judges opinions can, nevertheless, be subjective and a different view may be taken by the Judge at the final hearing.

The Judge may adjourn the appointment from time to time on the day to allow the parties to negotiate. During the breaks they will have the opportunity to consider their position and respond to suggestions in a constructive way.

The Judge will consider the position of both husband and wife and will offer advice about the likely outcome at the final hearing and he/she will encourage the parties to reach an agreement. The Judge and also both legal teams will be working hard to bring the parties closer together in respect of their differing positions. Both husband and wife should always bear in mind that the purpose of the FDR is designed to help them reach a settlement or at least narrow the issues between them so as to save legal costs. However, the object is not to pressurise them into something with which they are unhappy. If either the husband or wife has real reservations about a proposal whilst at court, they should ask for more time to consider it, and ultimately, they always have the right to reject it. The Judge cannot, as referred to above, order a settlement at the FDR unless its terms have been agreed.

Once an agreement has been negotiated, and has been approved by the FDR Judge, then the agreement is final and the case concludes. Usually, the order is drafted by the legal representatives at court or at the very least; Heads of Agreement are drawn up, signed by both parties and submitted to the Judge. If one party subsequently, tries to withdraw from the settlement, the Judge can then be asked to endorse it on the basis that there is already an unperfected order.

Despite the modest length of time that the hearing is listed for on the day, be prepared to remain at court for over half of the day. The District Judge will look at all the papers, including open offers and without prejudice correspondence in order to understand the real difference between the positions of the two parties. The Judge will have seen information that will not be available to the Judge at the final hearing and hence, the Judge who deals with the FDR will not have any further involvement in the case, other than to hold another FDR, or to give further directions at the end of the FDR. The offer details which have been lodged with the court for the purposes of the FDR are not kept on the court file once the FDR has concluded. This is to ensure that there is no risk of the Judge who eventually hears the case seeing them. The same applies to any notes taken by the FDR Judge and details of his opinion.

Most cases settle either at or shortly after the FDR. It is an important opportunity to resolve all issues and reach agreement and hence the parties should go to court well prepared. Many listen to what the Judge says and want a few weeks to think about concluding the case by making or accepting a proposal based upon the Judges Indication or negotiations on the day.

If the parties have reached an agreement by the end of the FDR, the Judge may, if he/she considers that it is a sensible one, make the appropriate Consent Order. If the parties cannot agree, the Judge may adjourn the case for another FDR, give directions for the further conduct of the case, including, where appropriate, the filing of evidence and/or fix a final hearing date. Where the FDR has not been successful in a substantial case, narrative Affidavits (written and signed Statements) are often ordered which set out the financial history or any issues which are best resolved by the parties detailing their respective positions in writing.

The Judge may make an Order for costs where appropriate because of the conduct of a party in relation to the proceedings as a result of, for instance, their non-compliance with a directions Order.

Preparations Prior to the Final Hearing


  • I have gone this far, so why not take my case to a Final Hearing unless the other party offers me precisely what I want?
  • All of my disclosure has already been completed but my lawyer says that it must be updated. Why is this necessary?
  • Why not save my newly found and really useful evidence until the day of the Final Hearing when I think that it will have its greatest impact?
  • What is going to happen at the trial? Is it like Rumpole of the Bailey in terms of the cross examination?
  • What with all this paperwork that my case has generated, I won’t have to say anything will I?
  • Is the cross examination something that I should be concerned about?
  • I know my case better than any opponent barrister does. It will be no problem to see off any of their questions.
  • My solicitor wants to use a barrister for the trial. What do they know about my case – is this really necessary?
  • Presumably I get to meet my barrister beforehand and not just on the day of the hearing?
  • This barrister is giving me a difficult time with his questions during the conference. Is he really on my side because he does not seem to be?
  • What is a Statement of Open Proposals?


Any offers to settle should be carefully considered and every reasonable attempt to bring the case to a conclusion should be taken so as to avoid the costs of preparing for and attending a final hearing. This is a particularly expensive part of the matrimonial financial litigation process.

All evidence in support of a parties case not already secured must be obtained and disclosed along with any updating valuations. It can, however, be problematic to disclose brand new evidence late in the proceedings unless there is a good reason for the delay.

At Blackdown family Law Solicitors, we carefully advise all of our clients about what to expect at the final hearing. Both parties will be giving oral evidence and will also be subject to cross examination hence they should think carefully about what they need to say and should anticipate the questions that will be asked of them. Preparations for a final hearing are not just a paperwork exercise. Each party needs to mentally prepare themselves for their ‘day in court’.

Often a Barrister is briefed to represent the client and if this has not already occurred, the client should have the opportunity to meet with their Barrister in a conference well in advance of the hearing. The Barrister will discuss matters with them, advise them on their case and provide them with a second opinion about the likely outcome.

At least 7 days before the final hearing, the Applicant must begin to prepare a Trial Bundle which, if possible, should be agreed with the Respondent. The bundle should contain copies of all relevant documents (i.e. applications and orders, statements, experts reports and relevant correspondence) that will be used in evidence by both parties, considered by the Judge and be available for any witnesses giving evidence to the court. Copies of the bundle should be lodged at court at least 2 clear days before the hearing and a copy may also be sent to the other party’s solicitor, although they can prepare their own bundle from the agreed index.

Both parties must comply with any directions made at the FDR.

Both parties must draft a Statement of Open Proposals, explaining what each thinks is the best solution to their case. The Applicant must send his or her statement to the court, and to the Respondent, not less than 14 days before the final hearing and the Respondent must then send his or her statement no more than 7 days thereafter.

Not less than 14 days before the final hearing, each party must file with the court and send to the other party a written Statement of Costs (in Form H1) giving full particulars of all costs in respect of the proceedings which he/she has incurred or expects to incur, to enable the court to take account of the parties liabilities for costs when deciding what order (if any) to make by way of a financial settlement.

Final Hearing


  • My husband had the affair and this ended the marriage. I want to see him vigorously cross examined about what he did. However, my solicitor says that the barrister will concentrate upon questions about his savings and pension. Of course the money is the most important thing but I do want to see him suffer for his adultery.
  • Why is my barrister spending valuable time at the hearing still trying to negotiate? I have paid all of this money so now I just want to get on with the trial.
  • Exactly what powers does the Judge have at the Final Hearing? What can he do?
  • My husband owns our second home and has the title in his sole name. I am worried that the Judge will not be able to do anything about this unless my husband agrees. Is this the case?
  • I have got a Pre-marital Agreement. I do not know why we have had to come all of the way through these proceedings up until a trial. Shouldn’t the terms of the agreement stand unchallenged?
  • What factors or criteria does the Judge use to determine our case?
  • I was ordered to pay maintenance for 5 years but I have been made redundant and prospects look grim. Am I able to vary the order?
  • I have come into some money via an inheritance. Is there any way that I can buy off my wife’s maintenance order?
  • So if I am not happy about the savings that my wife was awarded by the court, can I apply for them back if I can prove that my need is greater than hers in a few years time?
  • What if I find out that my husband concealed a valuable savings account. Can I do anything about it?
  • My wife said she did not intend to cohabit and therefore got the house transferred into her name. Two months after the order she has remarried. Can I get the court to vary the order?


The Final Hearing (sometimes referred to as a Trial) will decide the issues between the parties and result in a court order which concludes their respective financial claims. Both parties must attend in person. It is a more formal hearing than those which have previously occurred and will usually include each party and any witnesses (including experts) giving oral evidence given on oath. The parties and witnesses will also be cross-examined by the other party’s barrister. The Judge will require any oral evidence to be confined to the outstanding issues between the parties, rather than for it to range over the history of the marriage and its breakdown. It must be emphasised that the purpose of the hearing is to resolve the case and not to apportion blame for the end of the relationship or to deal with emotional matters. The Judge will not allow questions to stray from the precise issues in the case.

Although all of the preparations will have been done, many cases settle ‘at the door of the court’ and some trials can have the feel of an FDA. Everyone is present and all opportunities are taken to negotiate a settlement. This may seem odd in view of all the expense having already been incurred but a settlement reached by the parties even on the day of the final hearing, is generally more palatable than one imposed upon them by a Judge.

At the Final Hearing, the Judge can order one or a combination of the following:-

  • One party to make to the other party, periodical payments for the period of time that is specified in the order – known as maintenance.
  • One party to pay a lump sum or sums of money to the other party.
  • One party to make periodical payments for the benefit of any children of the family for as long as the court decides is necessary – known as child maintenance.
  • One party to pay a lump sum or sums of money for the benefit of any children.
  • One party to transfer property (residential or business) specified by the court to the other party or to a child of the family.
  • Make a settlement of specific property; that is set up a trust, for the benefit of the other party and/or a child of the family.
  • Vary for the benefit of the parties to the marriage and or child(ren) any ante-marital or post-nuptial settlement (including a settlement made by Will or Codicil) made on the parties.
  • Extinguish or reduce the interest of either of the parties under such a settlement.
  • The sale of specified property and the distribution of the proceeds as the court sees fit.
  • The sharing of one or more pensions.


The courts powers are set out in the Matrimonial Causes Act 1973 (as amended). In exercising those powers, the Judge must give first consideration to the welfare of any children of the family who are under the age of 18. All the elements that the judge must take into consideration when deciding what orders to make are set out in Section 25 of the Matrimonial Causes Act 1973 (previously referred to as the Section 25 Criteria).

In brief, they are:-

  • The income, earning capacity, property and other financial resources that each party has or is likely to have in the foreseeable future, including in the case of earning capacity, any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to take steps to acquire.
  • The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
  • 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 of either party.
  • The contributions which each party has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
  • The conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it.
  • The value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.


These criteria have been explained in our separate website page entitled ‘Financial Settlements on Divorce’.


In some cases it is possible to apply to either vary or discharge an order.

If the Judge makes an order for maintenance, either party can apply to the court at any time during the term of that order, to ask for the payments be altered or extinguished because of a change in circumstances. The court has the power, on such an application (and indeed at the final hearing, when considering whether there should be periodical payments), to capitalise maintenance. This is where the Judge will order the payer to make a lump sum payment to the recipient in lieu of maintenance and such a payment will then end the maintenance claims and result in a clean break.

There are other circumstances when an order made at a ‘final hearing’ can be varied and at Blackdown Family Law Solicitors, we can advise upon these.

Capital and Pensions


However, once the court has considered the parties capital and pension position and made an Order distributing the capital, properties and pensions between them it is not possible to apply for a different division of these assets; the court is only able to consider the parties capital and pension provision once.

After the appeal time limits have passed, each party can only challenge a final Order relating to capital and pensions in highly exceptional circumstances, specifically (but not exclusively), if shortly after the order was made, a totally unforeseen event takes place which results in a material change in circumstances and completely invalidates a fundamental assumption made by the Judge when making the order. Examples of this are when one of the parties dies or there is an alteration about which parent a child (ren) of the family lives with.

Equally any misrepresentation by either party about their financial position or future marriage/cohabitation intentions can give rise to circumstances where an order can be varied.

Costs


  • So if I win, does the other party pay all of my costs?
  • I have got a costs order but it only amounts to a small proportion of what I am due to pay to my own solicitor. Is this correct?
  • I thought that the loser always paid the winner’s costs in litigation but my solicitor says that this is rarely the case because in divorce there are really no winners or losers and costs orders are unusual.
  • I got everything that I wanted out of the proceedings and clearly my case impressed the judge much more than my former spouses. So why haven’t I been awarded a costs order as well?


Once the court has given judgement, the question of costs will have to be decided.

The starting point and general assumption is that each party should bear their own costs of the proceedings and this is usually the case, unless there has been litigation misconduct by one of the parties. If this occurs then the other party may be able to recover the costs directly referable to that misconduct – noticeably not all of the costs of the matrimonial financial proceedings.

There are a number of other instances where a Cost Order can be awarded and again at Blackdown family Law Solicitors, we can advise you on these.

The Judge will always have full details of how parties’ costs have been incurred by means of the Form H. Nevertheless, it is usual to only ever award a proportion of costs. The judge will also bear in mind how successful each of the parties has been in terms of what they were seeking in the proceedings. If they have done particularly badly, it is often the case that to impose a costs order on them as well is simply viewed as too punitive.

One other noteworthy point is that if it transpires that one party has paid much more in costs that the other, the Judge has the power to add those costs back into the equation when deciding upon the terms of the final settlement.

Proceed to court presuming that you are required to pay your own costs and therefore contemplate this in considering any offers to settle. If a Costs Order should be made in your favour, then view this as an added bonus.

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John Turner, the Principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with divorce on a daily basis for over 22 years. He will advise you on the most cost effective and efficient way of proceeding with the divorce taking into account all of the circumstances of your case. He understands that divorce can be an emotional and a testing time for all those involved and is there to help shoulder the burden for you so that you can begin the process of rebuilding your life.



Areas of Family Law Work
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