Before the First Hearing
Where a person’s marriage or civil partnership has broken down, they may apply to the Family Court for a Financial Remedy. Once the financial remedy application has been Filed with the Court and Served on the other party, a First Appointment will follow.
The Family Procedure Rules state that, not less than 35 days before the First Appointment, both parties must simultaneously exchange with each other and file with the Court, a financial statement in the form referred to in Practice Direction 5A. The latter provides that the correct form is “Form E”. Form E must be verified by a Statement of Truth and accompanied by any document either required in the form itself or “necessary to explain or clarify any of the information contained in” the form (see Rule 9.14). The purpose of Form E is thus to provide the Court with full details of a party’s financial affairs so that an informed decision on division of assets can be made.
The First Hearing
The objective of the First Appointment in financial remedy proceedings is set out at Rule 9.15(1), namely: to define the issues in dispute and to save costs. In practice, this means that the Court will identify the issues in dispute and exclude irrelevant issues.
The Court will usually give directions about issues such as the valuation of assets, the instruction of joint experts for the purposes of such valuation, other evidence to be presented by each party, and any further chronologies or schedules to be submitted to the Court.
Rule 9.16(1) stipulates that, upon the conclusion of a First Appointment hearing, neither party is entitled to produce any further documents, except in accordance with the directions given at the First Appointment or with the permission of the Court. For this reason, parties and their family lawyers should thoroughly prepare for the First Appointment and identify the directions necessary to advance their case. A failure to do so will inevitably cause further cost and delay.
Ordinarily, after the First Appointment, the Court will list a Financial Dispute Resolution appointment (“FDR”).
The FDR is technically a meeting held for the purposes of discussion and negotiation. Therefore, parties attending the FDR must use their best endeavours to reach agreement on matters in dispute between them. To this end, not less than 7 days before the FDR, the applicant must file with the Court details of all settlement offers and proposals, and responses to them. Similarly, the judge hearing the FDR appointment must have no further involvement with the proceedings, should they reach a final hearing. Parties should be careful to negotiate reasonably (for an example of the pitfalls, see https://demstonechambers.co.uk/og-v-ag-a-reminder-to-negotiate-reasonably-in-financial-remedy-proceedings/).
If the case settles at the FDR, then the Court may make a Consent Order. If the Court does not make a Consent Order, then it must give directions for the future course of the proceedings, including for further evidence to be filed and served, and for a Final Hearing date to be fixed.
The Final Hearing
As the name suggests, this is the hearing at which the Court will make its final decision.
Not less than 14 days before the date fixed for the Final Hearing, an applicant must (unless the Court directs otherwise) file with the Family Court and serve on the respondent, an open statement which sets out concise details of the orders which the applicant proposes to ask the Court to make, including the amounts involved. Not more than 7 days after submission of the above statement by the applicant, the respondent must file with the Court and serve on the applicant a similar statement.
The format of the hearing itself is similar to that in other legal proceedings. The hearing will normally start with the judge discussing the case generally with the representatives, i.e., the family law barristers.
Following the initial discussion, the applicant will be invited to adopt their witness statement. For the next part of the hearing, the person adopting the statement will be a witness. Once adopted, the witness statement is deemed to be Witness Evidence and does not need to be repeated orally. Supplementary questions may however be asked by the family law barrister. This process is known as “Examination-in-chief“.
At the conclusion of examination-in-chief, the opposing barrister will question the witness. The purpose of this questioning is to undermine the witness’ evidence by pointing out weaknesses and inconsistencies, as well as advancing the opposing barrister’s own client’s case. This process is known as “Cross-examination”.
After cross-examination, the family law barrister may ask the witness questions arising from the opposing barrister’s questioning; this process is known as “re-examination”. Finally, the judge may ask the witness questions.
The above process of questioning is repeated for the other party.
Finally, the representatives will make speeches (also known as Legal Submissions) to the judge, detailing why the division of assets should be as proposed by their client.
Judges often make a decision on the last day of the Final Hearing, however, this is sometimes not possible because of time constraints, in which case the hearing is adjourned to a different date for judgment to be given.
For help with Family Court Financial Remedy proceedings, contact our family law barristers. We are Milton Keynes and London-based family lawyers who can help with any aspect of family disputes, such as Child Arrangements, Divorce, and matrimonial finance.