This article provides a basic guide to the procedure in financial remedy proceedings for separating couples and is intended for those with no or limited knowledge of financial remedy proceedings procedure.
The procedure that applies in financial remedy proceedings is set out in the Family Procedure Rules 2010 (“Rules”). In particular, Rule 9 and Practice Direction 9A (“PD9A”) set out the
procedure to be followed and provides the dates various steps need to be taken. Other parts of the Rules also apply in financial remedy proceedings, but the basic procedure the court will follow is set out Rule 9 and PD9A, with additional guidance provided in the FRC Efficiency Statement, which can be found here. The main law applied in financial remedy proceedings is set out in Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.
This article does not set out all of the steps the Rules require parties to take and is not intended to replace the need to read Rule 9 and PD9A and other relevant parts of the Rules. Instead, this article is intended to be an introduction to the procedure, which, hopefully, will make the Rules and the procedure easier to follow.
Jurisdiction
As with all forms of litigation, the starting point is jurisdiction. The term ‘jurisdiction’ means the power or authority given to a court to make a particular type of order. For the types of orders most people apply for in financial remedy proceedings, which are usually property transfer, lump sum, sale of property, maintenance and/or pension sharing orders (“financial order”) the court will have jurisdiction to make an order if an application for divorce, dissolution, nullity of marriage or judicial separation has already been made. Therefore, before you begin the process of applying for a financial order you need to make a divorce or dissolution application first. Applications for divorces can be made online here .
The court will have the jurisdiction to make a financial order regardless of whether the person making the divorce or dissolution application indicates in the form that she/he wishes to apply for a financial order. The court will also still have jurisdiction to make a financial order if there has been a final divorce order. However, the jurisdiction to make all of the types of financial orders will only last until the party wishing to make an application remarries or enters into a civil partnership. After remarriage, the court only has the jurisdiction to make a pension sharing order.
Step 1 – Before issuing proceedings
Before making an application, the court will expect the pre-application protocol (“Protocol”) contained in Practice Direction 9A of the Rules to have been followed. The Protocol’s objective is to encourage the parties to engage in non-court dispute resolution (“NCDR”). It also aims to help the parties understand each other’s position, identify the issue that are not agreed, limit the areas that are not agreed, settle the case without going to court and to reduce costs.
The Protocol should be read and followed in full. However, some of the more important parts of the Protocol are:
i) Unless there are safety concerns or there is another good reason, the court will expect the parties to attend at least one form of NCDR before coming to If the parties do not attend a form of NCDR the court may not allow the proceedings to continue or may pause the proceedings so the parties can attend a form of NCDR.
ii) All applicants must attend a Mediation Information and Assessment Meeting (MIAM), unless they qualify for an exemption, and all respondents are expected to attend the The idea is the mediator will give information on the types of NCDR that may be suitable.
iii) If a party fails to attend a MIAM or a form of NCDR the court will take this, and any other failure to comply with the protocol, into account when considering
iv) he parties should attempt, where possible, voluntarily financial disclosure, which must be full, honest and open and any request for financial disclosure must be necessary, relevant and limited to what is required. The parties are also to enter into negotiations.
v) If proceedings are started both parties will need to tell the court and the other party what their position is on NCDR by completing Form FM5.
vi) The parties are required to comply with the Protocol, even if they are not legally represented or have not had legal advice.
Step 2 – Issuing proceedings
Except for in a limited set of circumstances, financial remedy proceedings are begun by making an application to the Family Court using Form A. The purpose of the Form A is to set out the basic details of the claim. The Form A is available online at here.
Part of the information the Form A asks the applicant to confirm is; what orders they are seeking; details of any properties they are seeking orders in respect of; and details of any maintenance claim being made in respect of any children.
The usual practice is to indicate on the form that all orders are being sought, except for maintenance pending suit (unless, of course, the intention is to seek interim maintenance).
Once the Form A is issued, the court will send the parties a Notice of First Appointment (Form C). The Form C is an order which tells the parties the date and venue of the First Appointment hearing. The Form C will set out the timetable for financial disclosure, which both parties will need to follow. The Form C also contains additional directions, such as for the filing documents to assist the court in understanding the issue in the case and encouraging the parties to obtain other evidence in advance of the First Appointment.
Step 2 – Disclosure
The focus of the early part of the process is disclosure. Disclosure when each party lets the other know the full extent of their assets and income. Disclosure is extremely importance in financial remedy claims, as it only if there has been full disclosure from both parties that the court can know the extent of the assess and express (or impose) its view on what a fair division of those assets would be.
The first stage of financial disclosure is both parties completing and exchanging Form E Financial Statements, together with the documents the Form E says must be provided. The Form E is a document that is design to obtain comprehensive financial disclosure from each party. The Form E can be found here. Each party is under a duty to provide full and frank disclosure in completing the Form E and is under the duty to continue to do so throughout the financial remedy proceedings. The Form E is therefore a document that must be carefully and accurately completed.
The second stage of financial disclosure will be the preparation of a questionnaire on the financial disclosure of the other party in their Form E, including the documents attached to their Form E. The primary aim of the questionnaire is to get from the other party any missing financial information from their Form E. The questionnaire should request further financial information that is thought to be necessary, having looked at the other party’s Form E and its attachment. Finally, the questionnaire should ask the other party to clarify any information that is unclear in their Form E.
You should, therefore, consider the other party’s Form E and the questionnaire to be asked about the Form E carefully, as this is an important part of the disclosure process. Time should be taken to go through the other party’s Form E and their attached documents to identify any areas further information or clarification is needed. Often, the other party has not completed their Form E as thoroughly as they should have and/or has not provided all of the documents they should have done. This is the opportunity to identify and ask for missing financial information.
Step 3 – The First Appointment
If both parties are able to agree the directions to be made at the Frist Appointment, the court can be invited to make those directions without the need for an oral hearing. This is done by the parties submitting a consent order for the court to approve.
If the parties do not want to or are unable to agree directions, then before the First Appointment, the applicant should send the court two completed template documents, the ES1 and ES2. Both template documents can be obtained online from here.
The parties should cooperate in preparing these documents. The ES1 and ES2 are design to provide the court with a summary of the parties’ assets and to broadly identify the issues between them. The ES1 and ES2 forms need to be sent to the court before every hearing. The parties should also agree, if possible, the contents of the hearing bundle, which the applicant will send to the court.
Prior to the First Appointment, the parties are to inform the court, by sending a completed Form G, confirming if they are in a position to treat the First Appointment as a Financial Dispute Resolution appointment (“FDR”).
The First Appointment will be either by video link, such as MS Teams, or will be an attended hearing (i.e. both parties will need to attend the court building). The purpose of the First Appointment is for the judge to identify the issue in the case and to make the directions that are necessary for ensuring the case is ready for the next hearing, the FDR.
As part of preparing the case for the FDR, the two primary issues that will be considered are disclosure and the need for any expert evidence.
The first stage of the disclosure process will have been completed by the parties exchanging Form Es. Therefore, at the First Appointment court will usually focus on the second stage of disclosure process, which is when each party seeks further financial information and/or missing financial information from the others disclosure so far in their Form E.
The judge at the First Appointment will look carefully at each party’s questionnaire and will hear arguments on any objections one party has to questions raised by the other party. For example, a party may object to a question on the basis that it is disproportionate or on the basis that question is in fact not a question seeking financial disclosure.
The additional issue that the court will often consider at the First Appointment is if there is a need for any expert evidence (a party does not need permission to obtain an expert report, but does need permission if they want the court to consider the expert evidence). The court will want to control the expert evidence and ensure any instruction of a joint expert is necessary. If one or both of the parties seek permission to instruct an expert (which is usually on a joint basis), such as a pensions expert, chartered accountant or chartered surveyor, an application should be made before the First Appointment. The relevant procedural rules on expert evidence are contained in Part 25 of the Rules.
If relevant, the court will also consider at the Frist Appointment joining any third parties to the proceedings and/or listing a preliminary issue hearing to dispose of a discrete issue.
The typical directions at a First Appointment include: replies to questionnaires; market appraisal valuation of the family home; joint expert instruction (such as pensions); evidence of mortgage capacity from each party; alternative housing particulars from each party; exchange of updating disclosure shortly before the FDR; listing the FDR hearing, and a direction for the parties to exchange settlement proposals prior to the FDR.
If at the date of the First Appointment a conditional order in the divorce application has not been made, an application for a conditional order will need to be made to ensure the court has the power at the FDR to approve a consent order.
Step 4 – The Financial Dispute Resolution hearing
The purposes of an FDR hearing is to provide the parties with an opportunity to openly discuss the case and to negotiate with the other party with the aim of reaching a settlement. The FDR hearing is, therefore, all about negotiations and the court will expect each party to put forward their best offers and to properly consider any offers made by the other party.
However, the court will not resolve any factual disputes between the parties at an FDR. For example, if there is a dispute as to who has possession of any valuable items, this will not be resolved by the judge at the FDR.
To help with the negotiations, the FDR is conducted on a confidential basis. This means what is said at the hearing and any offers put forward at the hearing cannot be referred to at any future hearings. In addition, the judge that hears the FDR will not have any further involvement with the case. The primary role of the judge at the FDR is to help the parties to reach an agreed settlement.
The usual procedure at an FDR is the parties will arrive at court 1 hour before the time the hearing is listed at. Following their arrival at court, the parties will attempt some negotiation and/or attempt to narrow the areas of dispute. The parties will then go into court and each party will have the opportunity to make their arguments to the judge about why they say their settlement offer is fair and reasonable. After hearing from each party, the judge will give his or her view, in so far as they are able to, on the issues that are not agreed and will give an indication of what they consider a fair outcome would be. This may be done in very general terms or may be quite specific, depending on the judge and the complexity of the case. What can make it difficult to get a clear indication from a judge is if there are significant factual disputes that has or a likely to have an important influence on the court’s view of what a fair settlement is. The parties are then expected to continue their negotiations after hearing what the judge has had to say.
The FDR is likely to last most, if not all, of the court day, so both parties should be prepared for an intense and possibly long day.
If the parties are able to reach an agreement, that agreement will be recorded in a final consent order, which the judge will be asked to approve. If the parties are not able to agree all of the details of an order, but have been able agree all of the key terms, they can sign Head of Agreement (which is document containing all of the important terms that have been agreed), which can later be put into a full consent order. The Heads of Agreement will be binding on the parties.
If the parties are not able to reach agreement, then the case will be listed at a final hearing and directions for the filing of further evidence will be made. The typical directions following an unsuccessful FDR include: the exchange of witness statement covering the statutory factors under section 25 of the Matrimonial Causes Act 1973; updating property valuation; updating property particulars; and updating disclosure .
Step 5 – The final hearing
The final hearing is the final part of the process and is when the court will impose its decision on the issues between the parties that are not agree and make a final order. The court has extensive powers under the Rules to control the evidence at a final hearing and may impose time limits on the parties to ensure that the case finishes within the time allowed.
The court will hear evidence from both parties, together with any other witnesses the court has allowed. The witness statement submitted to the court by each party will stand as that party’s evidence. If a witness wants to give any additions evidence, the court’s permission is required. If the court permits any additional oral evidence to be given, it is likely only to allow limited additional evidence.
Each party will be cross-examined (i.e. asked questions on their witness statement, Form E and replies to questionnaire) by the other party. If one or both of the parties are acting in person and there are allegations of domestic abuse or the witness is otherwise considered to be vulnerable the court may make special provisions for how the vulnerable witness is to be cross-examined. The additional rules on vulnerable witnesses are contained in Practice Direction 3AA of the Rules
After any cross-examination, each party will be given an opportunity to summarise their case to the judge. The judge will then give his or her judgment and that will be the conclusion of the proceedings. The court’s decision will be recorded in a final order that both parties will have to comply with.
